TRUTH AND RECONCILIATION COMMISSION
Tunisians Support the Truth Commission
By Olfa Belhassine
August 12, 2015
Tunis – “Have you heard of transitional justice?”, “Do you know what kinds of abuses transitional justice deals with?”, “What do you expect of transitional justice?”, “Have you heard of the Truth and Dignity Commission?”, “Do you have confidence in the Truth and Dignity Commission?”, “Do you think it is necessary that the truth be revealed about serious abuses committed in the past?”, “Do you think the special chambers will be able to deal with past human rights violations?”
These are some of the questions in a quantitative survey on “Tunisians’ perception of transitional justice”, whose results were recently released by the Truth and Dignity Commission.
The survey was commissioned in March by the Tunis office of the United Nations Development Programme (UNDP), which has been supporting the transitional justice process in Tunisia since 2011. It was carried out by the Independent Survey and Statistics Institute (ISTIS).
One of the objectives of the survey was to ask Tunisians directly what this new concept of restorative justice means for them, and gather information about their expectations on judicial procedures and institutional reforms. It questioned 3,547 men and women throughout Tunisia. According to the Truth and Dignity Commission, information from the survey will allow the Commission to strengthen or adjust its future strategy, better support victims and further boost involvement of civil society organizations in its ongoing activities.
According to Anouar Moalla, head of the Commission’s information and communication unit, the ISITIS survey reflects the paradox of the Tunisian context. “We see a real split between some of the elite who only speak ill of us, and a silent majority who are satisfied overall with the work of the truth commission and the way transitional justice is developing,” he says.
Revealing past abuses
The survey found that 65.6% of respondents had heard of transitional justice, especially through television. 78, 5% of those who had heard of transitional justice said they thought it was a “necessity for Tunisia”, especially to “guarantee transition to rule of law”.
While 63.8% thought the process was slow, respondents said they expect it to reveal the truth (76.8%), to install the principle of accountability (44%), provide moral and material reparations to victims (36.3%), and reconcile Tunisians (34%). 86.3% also want criminal procedures against persons who committed human rights violations during the dictatorship, 9.7% even want them deprived of their civil rights and only 8.8 % would prefer them to be granted amnesty.
While 62% had heard of the Truth and Dignity Commission and 67.2 % said they have confidence in it, 48.6% said its main mission should be to “seek the truth about past violations and corruption”. This is another statistic showing that Tunisians questioned in this survey want an end to the totalitarian system based on nepotism. 97.3% of respondents said they think fighting corruption should be one of the main objectives of institutional reforms.
The publication of the ISITIS survey report comes at a crucial time when the Truth and Dignity Commission is under the most serious political pressure since its creation in June 2014. A bill on “national reconciliation” recently proposed to parliament by President Beji Caied Essebsi would divest the Commission of its power to arbitrate in financial cases and end procedures and prosecutions against businessmen and civil servants suspected of corruption.
‘Reconciliation’ Should not Sideline Justice
By Param-Preet Singh
August 14, 2015
Indonesia’s government is preparing to lift the lid on decades of gross human rights violations whose victims have gone without redress and whose perpetrators have never been brought to justice.
But there are already serious questions about whether the government will empower the proposed “reconciliation commission” to pursue the minimum standard of acceptable justice: criminal accountability.
President Joko “Jokowi” Widodo is expected to unveil details of the proposed Reconciliation Commission in his Aug. 14 State of the Nation address. Such a commission, first mooted on May 22 by Attorney General Muhammad Prasetyo, would be composed of representatives of the Attorney General’s Office and the National Commission on Human Rights.
The commission’s mission is to seek a “permanent solution for all unresolved human rights abuses” of the past half century.
That’s a tall order. The short list of abuses that Prasetyo said the commission would focus on starts chronologically with the massacres of 1965-1966 that killed up to 1 million people.
The victims included members of the Indonesian Communist Party (PKI), ethnic Chinese, as well as trade unionists, teachers, civil society activists and leftist artists. In the half century since the mass killings, the Indonesian government has repeatedly sought to justify them as a necessary defense against the PKI.
Other atrocities on the commission’s task list include the Trisakti and Semanggi 1 and 2 incidents of 1998 in which unknown gunmen killed unarmed peaceful protesters, an attack by alleged security forces on Wasior, Papua, in 2001 and a campaign of extrajudicial killings linked to security forces between 1982 and 1985 known as the Petrus shootings.
To date, the government has provided few details of the commission’s precise objectives or the resources it plans to allocate it to achieve those goals – but it has already indicated that the commission will not conduct investigations into specific incidents.
On May 13 Attorney General Office’s spokesman Tony Tribagus Spontana said the government was opting for a “reconciliation process” as a means to get “away from the shackles of so-called investigations which will likely bring us to blame one another”.
Spontana hinted that the commission would instead focus on compensating victims through an as-yet-unspecified “proper settlement mechanism”.
Providing compensation or other forms of redress to victims of grave human rights violations is necessary, but it’s only a small fraction of what is needed to obtain justice and achieve longer-term reconciliation.
Nor is it enough to simply uncover the “truth”, as important as that may be. Finding out what happened can fill crucial gaps in a society’s understanding of its past and help direct a future path.
But unless those responsible for the injustices of the past are fully and fairly held accountable for their actions, the wrong message will be sent to prospective perpetrators of future crimes.
Instead of replacing an accountability mechanism, a reconciliation commission empowered to address rights abuses of the scale and severity of those in Indonesia over the past 50 years should pave the way for prosecution of those most responsible.
The proposed commission in Indonesia therefore has the potential to be a much-needed step on the long road to justice, but only if its structure, procedures and practices are consistent with human rights standards.
The government’s approach thus far has not inspired a lot of confidence: a coalition of Indonesian civil society organizations and family members of victims of past atrocities have already criticized the proposed reconciliation commission as no more than an “effort to preserve impunity”.
As truth mechanisms in other countries have made clear, there is no precise recipe for achieving a rights-compliant and effective process, but there are at least three critical ingredients: independence, impartiality and transparency.
The civil society reaction thus far suggests that the government has a long way to go.
Any credible truth and reconciliation commission should operate independently from the government. Efforts by the executive to interfere in the commission’s work – which can take many forms, including efforts to manipulate its budget – could be a death sentence for the commission’s credibility.
Impartiality is similarly non-negotiable. Efforts to frame the mandate in a way that only takes the views of one side, for example, would at best deliver a skewed version of events. A one-sided version of the truth risks exacerbating, rather than easing, tensions.
Transparency is vital to foster national ownership over the commission’s work. Broad consultation with civil society and other key stakeholders at all stages will be essential.
There should be clear, objective criteria to appoint commissioners, the commissioners should reflect the broader society at large, including those victimized, and their appointment should be subject to public confirmation hearings. The commission’s findings should be public.
There are practical considerations as well. Witnesses may need protection because of their participation in the process.
And those responsible for past abuses, who provide statements, should be granted some protection, although these should not be confused with immunities or amnesties, which are inconsistent with international law.
President Jokowi has an opportunity to start the process of bringing meaningful justice to Indonesia’s huge numbers of victims of rights violations.
Ensuring that the reconciliation commission is poised to announce that has the potential to be a historic step in that direction.
But the government would do well to remember that reconciliation will not come from a one-sided version of the truth.
A Truth and Reconciliation Commission for the United States
By: Ronald C. Slye
August 15, 2015
It may be time for a U.S. Truth and Reconciliation Commission to deal with America’s legacy of slavery. Political analysts referred to the nation’s “original sin” of slavery while discussing recent police killings of unarmed black men. Other incidents of race-based violence continue to plague U.S. society.
I teach law focusing on transitional justice and have worked with two national truth commissions. From 1996 to 2001, I was a consultant to the Truth and Reconciliation Commission in South Africa, which examined that country’s legacy of racism, slavery and apartheid. From 2009 to 2013, I was one of three international commissioners on Kenya’s Truth, Justice and Reconciliation Commission, which addressed human-rights violations committed over 45 years. Each was established by its respective government as an independent commission. Each panel had its challenges. Yet both shed light on the systematic historical injustices that, like it or not, defined each country.
Could a truth commission work for the United States? It would certainly help Americans confront the nation’s past racial injustices. Truth commissions are designed to analyze the systemic context of historical offenses and trace their continuing effects today.
South Africa’s Archbishop Tutu listens at the 10th anniversary of the country’s Truth and Reconciliation Commission in Cape Town
Truth commissions allow diverse constituencies to tell their sides of the story and examine the history and results of gross violations of human rights. Because they are not courts of law, the panels cannot legally prosecute or punish people. Both these attributes – taking a broad analytical view of historical injustices and their impact on today’s society, as well as providing a safe place for people to discuss their experiences and perspectives – are crucial in any national conversation about the legacy of slavery.
My experience with the two commissions in Africa underscores the importance of who is chosen to lead the panel and the breadth of its mandate.
The commissioners must bring a diversity of skills. People not open to hearing the perspectives of others would do a poor job of fostering the national conversation required. Though it is important to have commissioners with a legal background, my experience shows it is also crucial to have people from other disciplines, including psychology, history, human rights, economics and racial and ethnic conflict.
It is also useful to bring in people from other countries. A number of commissions, including in Kenya, Sierra Leone and Guatemala, did this. It enriches the discussion, for example, to include people from Africa to address the legacy of slavery.
Who heads the commission is critical. South Africa was blessed to have Archbishop Desmond Tutu, who witnessed and suffered through apartheid. Perhaps the United States could turn to President Barack Obama. He has roots in Africa, and his family and ancestry embodies the country’s complex racial history.
During Obama’s recent trip to Africa, he pledged to do more involving U.S.-African relations after he leaves office. Leading a national, or even international, conversation on slavery and its legacy might be a smart way to start that engagement.
Apart from deciding who would staff such a commission, it is also key that the panel’s mandate be broad enough to encompass the complexities of the history and legacy of slavery. At the same time its mandate should not be so broad that it becomes unfocused.
The South African truth commission’s mandate, for example, was later viewed as too narrow. It did not closely examine the crime of apartheid – and so did not engage directly with the effects of institutionalized racism. The Kenyan truth commission’s mandate, by contrast, was too broad. It was charged with examining not only criminal assaults such as assassinations, massacres and rapes but also violations of civil, economic and social rights. The mandate of a truth commission on slavery would need enough flexibility to explore the complexities of the problem and its legacy – but not so broad as to overwhelm the panel and ensure its failure.
The legacy of slavery is complex. There can, of course, be no first-hand testimony. Yet the United States is still influenced by the inheritance that slaves and slaveholders have bequeathed to us.
My experience in Kenya and South Africa taught me that most people cannot be reduced to the categories of good or bad. People responsible for the worst atrocities in each of the countries often had redeeming qualities. Some who perpetrated violations against others were themselves victims of injustice.
One of a truth commission’s most essential functions is to separate the character of a person from the character of his or her actions. We often fall into the trap of wanting to reduce people to good or bad, innocent or guilty.
A person may be guilty of committing a terrible violation, for example, but we do a disservice by viewing him or her only through that single act. My experience taught me that people are more willing to acknowledge and address their own wrongdoing – or that of their ancestors – if they can be assured they won’t be judged solely on those bad acts. Human beings are more complex, whether it is a 19th-century slaveholder or a person today on death row.
I am a descendant of slaveholders. My ancestor, Robert Carter, was one of the wealthiest landholders – and one of the largest slaveholders – in colonial Virginia. His wealth and power earned him the nickname “King” Carter. His descendants include two presidents – William Henry Harrison and Benjamin Harrison – five signers of the Declaration of Independence, Robert E. Lee and me.
King Carter’s grandson, Robert Carter III, held hundreds of slaves and, like many of his contemporaries, administered what he labeled as “stern punishments” that today we would not hesitate to call a crime against humanity. Yet this same man freed more than 450 of his slaves in 1791 – the single largest act of emancipation by any slaveholder.
Carter’s journey to this unprecedented act of defiance and liberation is complicated. In his youth, he did appear more compassionate with his slaves than many of his contemporaries. His conversion to an antislavery Baptist Church may have been the defining moment that compelled him to harness his spiritual beliefs into concrete action.
Yet many of Carter’s contemporaries had exhibited the same traits. Some attended the same church. None of them, however, rejected slavery as Carter did.
For the 450 slaves and their families freed by Carter, it was an extraordinary, life-changing event. Carter was a racist who participated in one of the modern world’s worst crimes against humanity. He also performed a profoundly generous act anchored in the ideals of liberty and freedom taking hold in the new United States.
Carter’s act of freedom and liberation cannot negate his complicity in one of the worst crimes against humanity. They both define him as a person.
America’s national debates about race are too often simplistic and polarizing. They produce copious amounts of heat and noise, but little light. We often fail to acknowledge the complexity of our history, both personal and collective.
Yet one now senses a shift in the public mood. The remarkably swift forgiveness from the families of those killed in the Charleston church – a more pure example of Christian love is hard to find these days – has shamed many of us to reflect rather than react.
The mobilization around removing the Confederate battle flag from government buildings has led to a tentative national conversation about how we memorialize and remember the Civil War, the war in which the promise of freedom anchored in the American Revolution was finally achieved. We are beginning to engage at a national level about the messages conveyed by statues and memorials to the Confederacy. It is a much-needed conversation.
Carter’s contradictions are with us today. A country founded on ideals of freedom, liberty and human rights at the same time enslaved millions of people during most of its first century. There is no question that Americans have made progress in fulfilling the aspirational ideals that animated the founders of this country. There is also no question that the country still has a long way to go to acknowledge and address the violence and oppression that is a part of U.S. history.
A truth commission would not – and could not – solve the problems that America faces because of its original sin of slavery. The appropriate test for a truth commission is whether it furthers the nation’s efforts to engage meaningfully with the present manifestations of past violations.
Refusing to recognize and engage with past injustices compounds the effect of that history and can even result in new injustices. Acknowledging such history can, if we choose, lead to a renewed effort for more Americans to address the legacy of slavery and racism that still runs deep in U.S. society.
Victims of Armed Conflict Pressure Indonesia for Truth and Reconciliation Commission
Channel News Asia
August 19, 2015
Victims of the armed conflict in the Indonesian province of Aceh are demanding an explanation for the violence and killings that plagued the region for three decades from 1976.
They have pressed authorities to set up the Truth and Reconciliation Commission, as promised in the peace agreement signed by the Free Aceh Movement and the Indonesian government in Helsinki ten years ago.
An estimated 12,000 people were killed during the bloody struggle that ended in August 2005.
Acehnese women are among many looking for answers. Many of them lost their husbands, children or family members, with some going missing and others killed.
“I am keen to know why an innocent person was shot at,” says Madam Nurfanidar, whose husband was shot dead in front of her. “I don’t know the answer ’til today.”
Some of the women have been seeking closure for more than five years.
“Eventually I found my husband at the hospital mortuary. I asked whether there was such a person. I checked the register and found my husband’s name, Jamaludin,” said Madam Husni, the wife of a victim.
“His photo matched with the one taken of the body. I confirmed it was my husband. That was three months after he was abducted.”
Thirteen years later, she still does not know why her husband was abducted, and killed.
The Truth and Reconciliation Commission, which promised to provide answers as part of the peace agreement, has yet to be set up.
“From the onset we’ve been in consultation with the central government. But we’ve been told countless times by the central government that the national law on Truth and Reconciliation Commission has been annulled by the Constitutional Court. ” said Abdullah Salleh, Chairman of the Aceh Parliamentary Commission.
However, because the province enjoys special autonomy status, he said he believes there is a way out of the current legal impasse.
“We can possibly continue to push for the Truth and Reconciliation Commission for Aceh if there’s also political will from the central government,” he said.
“It should not be viewed as a process of establishing who is wrong; who is right,” said Hendra Saputra, the Coordinator of KontasAceh, the Aceh Commission for the Disappearances and Victims of Violence.
“But it is a process to unearth what truly happened in Aceh. It is an education for our future generation.”
COMMENTARY AND PERSPECTIVES
The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts
By Alex Conte
August 6, 2015
Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.
The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).
To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.
Absence of prohibition
A preliminary question before the Court of Appeal was whether IHL allows for non-arbitrary deprivation of liberty, by virtue of the fact that Rule 99 of the ICRC’s catalogue of rules of customary IHL positively prohibits arbitrary detention, but does not expressly prohibit non-arbitrary detention. The Court ultimately accepted, however, that modern international law is such that an approach under which ‘absence of prohibition equals authority’ is outdated and cannot stand as a proper basis of authority for detention (para 197). The Court was right. No credible lawyer could genuinely assert that lack of an express prohibition constitutes authority to deprive persons of their liberty.
Authority to detain derived from customary international law
On this point, it was argued that States involved in internationalised NIACs do detain persons, and have done so for many years on the understanding that they can as of right (para 222). In other words, a customary norm of IHL has developed in the context of this third category of conflict. The Court of Appeal disagreed, concluding that: “…we do not consider that in the present state of the development of international humanitarian law it is possible to base authority to detain in a non-international armed conflict on customary international law” (para 242). The Court is correct, of course, although it left the door open for the possibility that such a custom might crystalise in time.
Authority to detain derived from Common Article 3 and Additional Protocol II
The central focus of this post is on the Secretary of State’s proposition that authority to detain in a NIAC can be derived from IHL treaty law. Relying on Common Article 3 and Articles 5 and 6 of Protocol II, the Secretary of State argued that these provisions imply an authority to detain in NIACs. Support was taken from Gill’s and Fleck’s proposal (see para 240) that although IHL treaty law concerning NIACs is less explicit in stipulating the legal basis for operational detention than IHL treaty law concerning IACs:
“…a generic power to that effect is implicit in Common Article 3, in as much as it identifies as one category of persons taking no active part in hostilities ‘those placed hors de combat by… detention’. Articles 5 and 6 of (Protocol II) also refer to ‘persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’, which makes it clear that the deprivation of physical liberty of a person is contemplated in the law applicable to non-international armed conflicts.”
This approach forms the basis of the ICRC’s assertion that Common Article 3 and Protocol II govern deprivation of liberty in NIAC (page 6). Because Protocol II – which relates exclusively to NIACs – explicitly mentions internment, the ICRC expresses the view that this confirms that internment “is a form of deprivation of liberty inherent to NIAC” (page 7).
The Court of Appeal nevertheless concluded that “it is not possible to base any implication of a power to detain in an internationalised non-international armed conflict purely on a treaty” (para 219). The Court of Appeal most certainly got it right, for various reasons.
If the Geneva Conventions and their Additional Protocols had intended to provide a power to detain in a NIAC, this would have been expressly provided
Normal principles of interpretation require that, where certain matters have been explicitly set out in a legal instrument, the lack of similar explicit reference elsewhere in the legal instrument calls for interpretation that such matters are excluded (the principle of expressio unius). It is therefore relevant to contrast the way in which the authority to detain is dealt with in the context of international versus non-international armed conflicts.
The authority to detain in an IAC is set out in great detail within IHL treaty law. Specific authorisation and substantive grounds are specified in Article 21 of Geneva Convention III (concerning POWs) and Articles 42 and 78 of Geneva Convention IV (concerning civilians posing a serious threat to security). In contrast, the Geneva Conventions and their Additional Protocols are silent concerning grounds or procedures for internment in the context of a NIAC.
In the High Court, Mr Justice Leggatt therefore stated that: “I think it reasonable to assume that if CA3 and/or AP2 had been intended to provide a power to detain they would have done so expressly – in the same way as, for example, Article 21 of the Third Geneva Convention provides a power to intern prisoners of war. It is not readily to be supposed that the parties to an international convention have agreed to establish a power to deprive people of their liberty indirectly by implication and without saying so in terms” (para 242). This conclusion is intimately linked to the question of why IHL treaty law omitted explicit authority to detain in NIACs, influential for the Court of Appeal and considered next.
It is highly plausible that the negotiating States to the Geneva Convention did not want to authorise grounds for detention in NIACs
It is not genuinely conceivable that the parties negotiating the Geneva Conventions should have been so specific in the drafting of Geneva Conventions III and IV concerning detention in the context of IACs and then leave an only vaguely implied authorisation in the context of NIACs.
In fact, there are cogent reasons why negotiating States would not have wanted to establish a legal authority to detain persons in non-international armed conflicts. Given that Common Article 3 applies to “each Party to the conflict”, and that Protocol II applies to non-State armed groups that are able to implement Protocol II, Justice Leggatt focussed on one of the cornerstones of IHL: reciprocity. He observed that: “…providing a power to detain would have meant authorising detention by dissident and rebel armed groups. That would be anathema to most states which face a non-international armed conflict on their territory and do not wish to confer any legitimacy on rebels and insurgents or accept that such groups have any right to exercise a function which is a core aspect of state sovereignty” (para 245). The Court of Appeal thus gave weight to the fact that “the original ICRC draft of the Geneva Conventions which provided for the application of the Conventions in their entirety to non-international armed conflicts was rejected” by the negotiating States (para 178).
If Common Article 3 and Protocol II were to be interpreted as implying an authority to detain in NIACs, it would be necessary (but it is not possible) to identify the scope of such an implied power
As noted, IHL prohibits arbitrary detention. The commentary to Rule 99 explains that State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts, noting also that the arbitrary deprivation of liberty is incompatible with the requirement that detainees be treated humanely, reflected in Common Article 3.
Common Article 3 and Rule 99 in this respect reinforce the general prohibition against arbitrary detention. This prohibition is reflected in Article 9(1) of the ICCPR, which provides that “no one shall be subjected to arbitrary arrest or detention” and requires that any deprivation of liberty be “on such grounds and in accordance with such procedure as are established by law”. These phrases echo the prohibitions against arbitrary deprivation of liberty on the one hand and unlawful deprivation of liberty on the other.
Two requirements arise from this. The first, as confirmed in the Human Rights Committee’s General Comment on the right to liberty (para 11), is that any detention that lacks a legal basis is both unlawful and arbitrary, and thus in violation of both aspects of the prohibition. The second is that the law must be defined “with sufficient precision to avoid overly broad or arbitrary interpretation or application” (para 22). If a person is detained without such legal authorization, the deprivation of liberty is unlawful and thereby in violation of Article 9(1).
From this second requirement, it follows that the law must identify the scope of any express or implied authority to detain. The Geneva Conventions and their Additional Protocols do not point to the scope of any power to intern in NIACs. Indeed, the ICRC’s catalogue of rules of customary IHL points to no express or implied authority to detain in the context of NIACs. It instead recognises that: “The prohibition of arbitrary deprivation of liberty in non-international armed conflicts is established by State practice in the form of military manuals, national legislation and official statements, as well as on the basis of international human rights law”. There is no assertion, or even vague suggestion, that Common Article 3 and/or Protocol II imply a legal authority to detain.
Justice Leggatt was therefore correct to take the view that it is not possible to deduce the scope of any implied power from the Conventions or their Protocols (para 246), with the Court of Appeal concluding that this fact could not be overcome (paras 217-218).
Because the scope of any implied power to intern in NIACs is not discernible, such internment would be arbitrary
General Comment 35 of the Human Rights Committee states (at para 64) that: “Security detention authorised and regulated by and complying with international humanitarian law in principle is not arbitrary” (emphasis added). The non-arbitrary nature of detention in armed conflict is thereby predicated as detention that satisfies the following cumulative elements: (i) it is authorized by IHL; (ii) it is regulated by IHL; and (iii) it is thereby capable of being evaluated as to its compliance with IHL.
Even if the argument of an implied authority under Common Article 3 and Protocol II were to be accepted (element (i)), the argument fails elements (ii) and (iii) of the Human Rights Committee’s test. Geneva Conventions III and IV specify who in an IAC may be detained, on what grounds, in accordance with what procedures and for how long. In the context of a NIAC, however, it is not possible to point to any such regulation, thus falling short of element (ii). The lack of such regulation not only fails element (ii), it also makes it impossible to ascertain whether any detention in a NIAC complies with IHL (element (iii)).
General Comment 35 also distinguishes between international versus non-international armed conflicts as this concerns any derogation from the right to liberty. In the context of an IAC, it acknowledges that IHL includes substantive and procedural rules that help to mitigate the risk of arbitrary detention. Outside that context, however, the Committee spoke of the need for derogating measures (para 66). It is implicit that the Committee did not consider that IHL rules pertaining to detention in a NIAC provide sufficient procedural guarantees mitigating the risk of arbitrary detention.
IHL contemplates internment as a form of deprivation of liberty in NIACs, but only as a matter of fact, not as a matter of law
While Common Article 3 and Protocol II may contemplate that the detention of persons in a NIAC may take place as a matter of fact, it does not follow that these provisions imply a lawful authority for detention. As simply put by the Court of Appeal: “Regulation is not the same as authorisation” (para 180).
The purpose of Common Article 3 and Articles 5 and 6 of Protocol II is simply to guarantee a minimum level of humanitarian treatment
Common Article 3 and Protocol II require that any detained persons be treated humanely (Common Article 3), that they enjoy certain generally applicable rights and safeguards (such as the benefit of medical examinations: Protocol II, Article 5(2)(d)) and that they enjoy certain procedural safeguards pertaining to prosecution and punishment (Protocol II, Article 6). As noted in the ICRC Commentary on the Additional Protocols (at para 4440): “Like common Article 3, Protocol II has a purely humanitarian purpose and is aimed at securing fundamental guarantees for individuals in all circumstances” (emphasis added).
Justice Leggatt thus remarked: “The need to observe such minimum standards is equally relevant to all people who are in fact detained, and does not depend on whether or not their detention in legally justified” (para 244). The Court of Appeal agreed (para 218). In short, the central basis for the Secretary of State’s argument was fundamentally flawed: the provisions relied on do not imply an authority to detain; their purpose is to guarantee minimum levels of humanitarian treatment.
Some Thoughts on the Serdar Mohammed Appeals Judgment
By Marko Milanovic
August 10, 2015
In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.
First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.
Second, this is all the more the case because there is nothing inherently impracticable or unworkable about the result that the lower courts have reached. IHL in NIAC does not prohibit detention. It is simply that positive authority for such detention, including the exact grounds and review mechanisms, must be found elsewhere, primarily in domestic law. The UK government lost the case precisely because it had no law of its own on the matter, and because what it did was contrary to domestic Afghan law (and ISAF policy) as well. All the UK has to do in order to resort to detention in NIACs is to either pass its own legislation or persuade its local allies to do so. That may be difficult to pull off politically, but from a judicial perspective does not seem to be too onerous a demand.
Third, the whole practicality point is reinforced by the government’s litigation strategy before the Court of Appeal. Unlike before the High Court (and unlike say Aurel and Sean’s argument), the government all but conceded that no positive authority to detain existed in ‘normal’, purely internal NIACs (see paras. 168 ff). In other words, if say Scotland tried to secede from the UK by armed force, the UK government would have to pass domestic legislation to detain Scottish nationalist rebels. It in special, ‘internationalised’ NIACs outside UK territory that the government is saying that it has inherent detention authority by analogy to IACs. This is in my view a completely arbitrary distinction, which actually exposes the weakness of the authority argument. And, as the Court correctly found, a close scrutiny of the evidence for a particular customary power in such special NIACs doesn’t pass muster. (I do have a further terminological quibble, in that the Court used the term ‘internationalised’ NIAC for these types of NIACs with an extraterritorial or cross-border element. As I have argued elsewhere, the term ‘internationalization’ is best used to denote the transformation of a prima facie NIAC into a proper IAC, e.g. by virtue of the Tadic overall control test, which is not what Afghanistan was anyway; using it otherwise creates a significant potential for conceptual confusion).
Fourth, I don’t find the Court’s approach to the interpretation of Security Council resolutions and Article 103 of the Charter to be entirely persuasive. In particular, the interpretative presumption (applied in Al-Jedda) that the SC does not intend to abridge human rights absent a clear statement to the contrary is not some ECHR-specific, external constraint on the Council, but should be seen a general principle also flowing from the human rights provisions of the UN Charter, equally applying to all states, ECHR parties or not. But since this point was of little actual relevance in the case I shan’t belabour it further.
Fifth, with regard to a possible domestic UK statute, the Court notes (at paras. 10(ii) and 363(iv)) the possibility of adopting legislation which ‘might have taken the form of a bar of specified claims by foreign nationals or have provided for specific authority for HM armed forces to detain in operations overseas. Both of these were accepted before us on behalf of SM to be possibilities. The latter reflects the approach taken by the United States.’ I see nothing problematic in the latter option, and this is in fact what the UK Parliament should proceed to do (while also considering the possibility of enabling extraterritorial derogations from the Convention, that curiously gets little mention in the judgment). The former option, however, is downright perilous, at least as far as Convention claims are concerned. It would be exceptionally difficult to justify discrimination on the basis of nationality in the security detention context (cf. the Belmarsh case; see also here and here). It would also likely be a losing strategy in the long run, especially bearing in mind the number of people with (dual) UK nationality fighting for Isis or other terrorist groups.
Sixth, with regard to extraterritoriality – it is true, as Sean and Aurel note in their post, that the Court expressed some significant reservations with respect to the more expansive approach to the extraterritorial application of the Convention post Al-Skeini (see paras. 8, 93 ff). Those reservations seem to be twofold: first, that the Strasbourg Court’s jurisprudence is internally inconsistent and that they overruled earlier cases sub silentio without clearly explaining why; and second, that applying human rights in armed conflict poses serious practical difficulties. Both of these concerns are real and valid. But we must also be aware that we would have to work out all of these difficult questions of how human rights apply on the battlefield even in intra-territorial situations – cf. the horrible position Ukraine finds itself in today. As I have argued many times before, the threshold extraterritoriality question should not be used as proxy for avoiding all these tough cases, which need to be looked at and decided on their merits.
I would also note, however, that something very important happens in para. 95 of the judgment, where the Court appears to endorse Leggatt J’ view in Al-Saadoon that the personal model of Article 1 ECHR jurisdiction applies whenever a state uses physical force against a person, thus in effect collapsing this personal model. (I have argued in my book (at 207) precisely that the personal model has to collapse that way and cannot be limited non-arbitrarily, but also that this is not necessarily what the Strasbourg Court wanted to do in Al-Skeini). Essentially the Court of Appeal may already have implicitly decided one of the key issues in Al-Saadoon, thus paving the way to applying the ECHR not only to detention, but to kinetic operations as well.
Seventh, I am surprised that the government persisted with some rather dubious arguments on appeal. First there was the manifestly-destined-to-lose Behrami point on how the conduct of UK troops in Afghanistan is not attributable to the UK, but only to the UN. And then, even more weirdly, that because the UK was acting on behalf of the UN it was entitled to rely on UN immunities before domestic courts. Yes, you read that right – the UK government was saying that it was immune from the jurisdiction of its own courts because it was supposedly acting on the UN behalf. That led to a couple of frankly embarrassing passages in the judgment (para. 76ff), when the Court asked the government whether the UN Secretary-General was even aware that the government was invoking UN immunities (he was not), and the Court then ordering the government to notify the S-G. His legal adviser subsequently replied saying (quite correctly) that ISAF was not a UN operation and that its personnel had no UN immunities to invoke. It is simply beyond me why such arguments – especially the immunities one – ever got made, wasting everybody’s time and energy in the process.
Finally, and on a more trivial note, I’d like to note the very interesting pattern of citation to academic authority (and generally other non-binding persuasive authority as well) in the judgment. Namely, the Court doesn’t seem to cite any scholarship in many difficult parts of the judgment (e.g. those dealing with extraterritoriality, Article 103, relationship between IHRL and IHL, etc), but starts doing that, and at quite length, from para. 171 onwards, when it starts discussing whether there’s authority to detain in ‘internationalised’ NIACs. I have no clear explanation for this – it could be that different judges drafted different parts of the judgment, or that the Court was clear on most of the other issues and needed no help from academics, whereas the detention authority point was so crucial, yet so underdetermined, that recourse to scholarship was particularly helpful.
In any event the Court apparently did find all that scholarship of some use. I’ve also been told that the government argued before the Court of Appeal that it shouldn’t refer to blogs, because we’re supposedly less rigorous and trustworthy than journals since there is no formal mechanism of blind peer review. And I’m really happy that this is not a position that the Court in the end accepted! It cited three EJIL Talk posts (paras. 197, 241), and also extensively discussed a post by Ryan Goodman on Just Security (paras. 208-209). So yay for us.
A New War Crimes Court is Born, but Who is Responsible in Kosovo?
Justice in Conflict
By Aidan Hehir
August 10, 2015
On 3 August, the Kosovo parliament voted to alter Kosovo’s constitution to enable the establishment of a Special Court. The court will investigate evidence uncovered by the European Union Special Investigative Task Force of forced detention, torture, murder and, perhaps most shockingly, organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) from 1 January 1998 to 31 December 2000.
Kosovo’s war crimes court will deal with important and perhaps unique questions about culpability in transitional justice. The offences under its jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo.
“Monsters” and “Victims”
Kosovo Albanians generally see the KLA as freedom fighters who brought about their “liberation”, albeit with the aid of NATO’s military intervention in March 1999. The idea that the KLA, or the Kosovar Albanian community more generally, could be guilty of human rights violations jars with the popular conception of “Serbian aggressors” and “Albanian victims”. Indicatively, Ramush Haradinaj, the former Prime Minister and current leader of the Alliance for the Future of Kosovo, stated: “By approving this court, we are turning ourselves into a monster…we were not monsters; we were victims.”
Kosovo’s declaration of Independence in February 2008 sparked jubilation amongst the majority Albanian population, but this has given way to spiraling anger and dissatisfaction; unemployment remains cripplingly high, wages are low, and corruption is rife. Between December 2014 and February 2015 some 50,000 Albanians left Kosovo in an ill-fated attempt to reach the EU. In March, the UN ranked Kosovo as the fourth largest source of asylum seekers in the world. Amidst this depravation, many naturally take comfort in KLA nostalgia. Unsurprisingly, the prospect of this source of pride being besmirched doesn’t appeal.
The Court’s perceived legitimacy amongst the Albanian community – which clearly has profound implications for peace and stability within Kosovo – will hinge upon the extent to which the actions of the KLA are acknowledged to have been supported – or simply tolerated – by external actors. This external support involved two distinct phases that lie within the Court’s three-year remit: first, the support afforded to the KLA during the struggle against Yugoslav forces from 1 January 1998 until the end of NATO’s intervention on 10 June 1999; and second, the tacit support provided by the international administration established after NATO’s intervention and lasting until 31 December 2000.
Prior to NATO’s intervention the KLA were known to engage in attacks against Serbian – and also Albanian – civilians; indeed, in February 1998 the US Envoy to the Balkan stated that “[t]he UCK (KLA) is without any question a terrorist organisation” and, a month later, UN Security Council Resolution 1160 condemned “all acts of terrorism by the Kosovo Liberation Army”. Still, evidence now suggests that a number of Western states covertly sent Special Forces into Kosovo in 1998 to train the KLA (James Pettifer (2012) The Kosova Liberation Army, p. 178). More overtly, during Operation Allied Force NATO coordinated militarily with the KLA.
After NATO’s intervention concluded, the Security Council passed Resolution 1244 giving UNMIK administrative powers in Kosovo and charging NATO-led KFOR with maintaining peace and security. Despite the huge international presence, attacks against the Serbian community increased dramatically when NATO’s campaign ended, precipitating a round of “counter-ethnic cleansing”. Reports by Human Rights Watch and the Red Cross recorded that by October 1999 over 200,000 Serbs and thousands of Roma had fled Kosovo in what was described by the then chief prosecutor for the International Criminal Tribunal for the former Yugoslavia Carla Del Pointe as being “…as serious as what happened there before [NATO’s intervention].”
In its initial phase, the international administration made two fateful decisions: one, to tolerate the mass exodus of Serbs and two, to turn a blind eye to the criminality perpetrated by sections of the former KLA. According to a report produced on behalf of the Council of Europe’s Committee on Legal Affairs and Human Rights, the international administration, “favoured a pragmatic political approach taking the view that they needed to promote short-term stability at any price.”
There was some logic to this of course. Tackling the criminal elements of the KLA would have led to confrontations with an armed guerrilla organisation whose support they needed. Additionally, stopping the Serbian exodus, and confronting those who targeted Serbs, would have been costly, dangerous and angered sections of the Albanian population. Ultimately, the continued presence of Serbs in cities such as Pristina, Peja and Prizren would have constituted a persistent source of instability whereas their relocation to enclaves such as Northern Mitrovica and Gračanica removed various inter-ethnic flash points.
The lack of robust attempts by UNMIK and KFOR to stop ethnic cleansing and secure the presence of Serbs and other minorities scattered across Kosovo emboldened those intent on driving out the Serbs. As a result, Kosovo became, and largely remains, a mono-ethnic polity, with non-Albanian communities largely corralled into particular enclaves and municipalities where, they “face some of the most hostile conditions of any minorities in Europe.”
The leader of the KLA at the time of NATO’s intervention was Hashim Thaci. Feted by NATO from 1998 on, Thaci eventually became Prime Minister and currently serves as Kosovo’s foreign minister. The Council of Europe Report, however, described Thaci as the ‘boss’ of an “organized crime network” active since 1998 and which had committed war crimes, intimidated “moderate” Albanians, and was involved in human trafficking, the sex trade, and heroin distribution.
Crucially, the report also notes that Thaci’s network was facilitated by the international administration established after NATO’s intervention. In a particularly damming section, the report states, “…these men would have been convicted of serious crimes and would by now be serving lengthy prison sentences [but for] faltering political will on the part of the international community to effectively prosecute the former leaders of the KLA.” Thus, those who will be the focus of the Court could not have committed their crimes without the support of those in NATO who sought the KLA’s help between 1998 and June 1999, and the international administration established after NATO’s intervention, which consciously chose to tolerate rather than confront them.
Acknowledging the External Dimension
Investigating crimes committed by the KLA is obviously a welcome development in principle. The Court must, however, acknowledge the extent to which international actors tacitly, and at times overtly, supported the growth of the violent criminal network now under investigation. A narrow focus by the Court will isolate the perpetrators of the criminality from the enabling environment in which they operated, thereby obscuring the role played by the international community in the commission of these crimes. The efficacy of transitional justice in this instance, therefore, is predicated on looking beyond a simple “Albanian versus Serb” narrative.
Blaming the KLA alone is likely to enflame social disquiet in a country already exhibiting pronounced popular disaffection with corruption, economic stasis, political mismanagement, and indeed, with those international actors who now seek to cast Albanians as exclusively responsible for the criminality and human rights violations. A failure to extend the scope of the proceedings, however, will naturally anger Albanians who will wonder how they have come to be punished for engaging in activity encouraged, supported and tolerated by those with the legal, political and military power to stop it at the time.
The Pentagon’s Dangerous Views on the Wartime Press
New York Times
By the Editorial Board
August 10, 2015
The Defense Department earlier this summer released a comprehensive manual outlining its interpretation of the law of war. The 1,176-page document, the first of its kind, includes guidelines on the treatment of journalists covering armed conflicts that would make their work more dangerous, cumbersome and subject to censorship. Those should be repealed immediately.
Journalists, the manual says, are generally regarded as civilians, but may in some instances be deemed “unprivileged belligerents,” a legal term that applies to fighters that are afforded fewer protections than the declared combatants in a war. In some instances, the document says, “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities.”
The manual warns that “Reporting on military operations can be very similar to collecting intelligence or even spying,” so it calls on journalists to “act openly and with the permission of relevant authorities.” It says that governments “may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.”
Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists – including Americans – is broadly in line with the standards set by the United States government.
One senior Pentagon official, who was asked to explain when a journalist might be deemed an “unprivileged belligerent,” pointed to the assassination of the Afghan military commander Ahmad Shah Massoud in September 2001. That example is preposterous because Mr. Massoud was killed by assassins who posed as television journalists and hid explosives in a camera. They were not, in fact, journalists.
The manual’s argument that some reporting activities could be construed as taking part in hostilities is ludicrous. That vaguely-worded standard could be abused by military officers to censor or even target journalists.
Equally bizarre is the document’s suggestion that reporters covering wars should operate only with the permission of “relevant authorities” or risk being regarded as spies. To cover recent wars, including the civil war in Libya in 2011 and the war in Syria, reporters have had to sneak across borders, at great personal risk, to gather information. For the Pentagon to conflate espionage with journalism feeds into the propaganda of authoritarian governments. Egypt, for instance, has tried to discredit the work of Western journalists by falsely insinuating that many of them are spies.
Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point.
Of the 61 journalists killed last year, 59 percent died covering wars, according to the Committee to Protect Journalists, which published a critical analysis on the Pentagon’s new manual.
In earlier documents on the law of armed conflict, the American military has offered more sensible guidance on the treatment of journalists. A guidebook published in 2012 by the United States Army Judge Advocate General’s Legal Center and School says that journalists should be protected as civilians “provided they take no action adversely affecting their status as civilians.”
A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”
That inane disclaimer won’t stop commanders from pointing to the manual when they might find it convenient to silence the press. The White House should call on Secretary of Defense Ashton Carter to revise this section, which so clearly runs contrary to American law and principles.
The New York Times Is Confused About the Law of War Manual
By Alex Loomis
August 12, 2015
The New York Times earlier called on the Pentagon to “repeal” “guidelines on the treatment of journalists covering armed conflicts that would make their work more dangerous, cumbersome and subject to censorship.” The editorial board here referred to three aspects of the Department of Defense’s nearly-1200 page Law of War Manual.
(A disclosure: I interned at DoD’s Office of General Counsel this past summer, and did some minor research on other parts of the Manual in the very late stages of its publication process. But I did not work on any part of the Manual pertaining to journalists, direct participation in hostilities, or any other part mentioned in this post or the Times editorial; all views expressed here are also my own and do not necessarily reflect the views of the Department of Defense.)
The Times’ objections were as follows: First, the Times decried the the Manual’s assertion that journalists could in some circumstances be “unprivileged belligerents.” The latter, according to the Manual, “may be made the object of attack by enemy combatants” and “may be punished by enemy States for their engagement in hostilities” (page 162). The Times then blasted as “ludicrous” the Manual’s assertion that “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities” (page 175) and expressed fear that officers might target journalists under this “vaguely-worded standard.” This compared unfavorably to what the editorial characterized as “sensible guidance”—an earlier DoD document that treated journalists as civilians “provided they take no action adversely affecting their status as civilians.”
The Times objected secondly to what it called the Manual’s “bizarre . . . suggestion” that “[r]eporting on military operations can be very similar to collecting intelligence or even spying,” as well as its recommendation that journalists “act openly and with the permission of relevant authorities.”
“[M]ore disturbing” to the Times is the Manual’s assertion that “States may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.” The Times objects that “[t]his unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point.”
That sounds bad. But all three objections stem from confusion about what the Manual purports to accomplish.
First, the Manual only “represents the legal views of the Department of Defense” on the laws of war (page 1) (emphasis added). It is “a description of the law as of the date of the manual’s promulgation” (page 3) (emphasis added) of war, as reflected in “treaties and customary international law applicable to the United States” (page 7). Even if every DoD lawyer wanted customary international law to protect journalists whatever the facts on the ground, the Manual would reflect what the law is, not what the lawyers wanted it to be. Thus, the Times’s call that DoD “repeal” the offensive provisions does not make much sense and in any case would accomplish little: The Manual merely claims to describe the current state of a certain branch of international law, but does not purport to make new law or counsel policy.
Moreover, the Manual does provide legal support for its assertion that journalists may not directly participate in hostilities without also losing civilian status. It cites the First Additional Protocol to the Geneva Conventions, which guarantees civilian protection for journalists “provided that they take no action adversely affecting their status as civilians.” The Times editorial approves of the exact same language, which appeared in an earlier DoD guidance. What the Times really objects to, then, is the Manual’s related suggestion that “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities.” But the Manual clarifies that this does not mean “independent journalism” (page 229). Instead, “the relaying of information” refers to activities described in past DoD and German Military guidance, such as
providing or relaying information of immediate use in combat operations, such as acting as an artillery spotter or member of a ground observer corps or otherwise relaying information to be used to direct an airstrike, mortar attack, or ambush; acting as a guide or lookout for combatants conducting military operations[.]
At the end of the day, all the Manual asserts, as a Pentagon spokesman explained in June, is that “[t]he fact that a person is a journalist does not prevent that person from becoming an unprivileged belligerent.” The Manual makes the same point on page 229:
Although performing these activities [including “independent journalism”] does not make a person liable to being made the object of attack, performing these activities also does not immunize a person from attack if that person takes a direct part in hostilities or is otherwise lawfully made the object of attack.
Likewise, the Manual says that medical and religious personnel also lose protected status if they engage in hostile acts (page 436), citing to the Geneva Conventions.
Second, the Manual does not “conflate espionage with journalism.” The Times is correct that the Manual describes “[r]eporting on military operations” as “very similar to collecting intelligence or even spying” (page 175). The Manual then cites to its provisions on the definition of a “spy” (page 151).
A person may only be considered a spy when, (1) acting clandestinely or under false pretenses, (2) in the zone of operations of a belligerent, (3) he or she obtains, or endeavors to obtain, information, (4) with the intention of communicating it to the hostile party.
Reporting on military operations might involve (1), though some journalists will not seek to gather their material under “false pretenses;” it typically will involve (2), and (3), too. But combat journalism does not involve (4). And importantly, the Manual agrees that the absence of (4) makes a big difference. It thus suggests that journalists “act openly and with the permission of relevant authorities” not because DoD believes they are spies but to help them “avoid being mistaken as spies” (page 175) (emphasis added). If the Pentagon really thought journalism and espionage were equivalent, the Manual would not have referred to the conflation of the two as a “mistake.” Nor does the manual sanction that mistake, or insist that journalists opt for one course of action or another. Instead it merely proposes that journalists “should act openly and with permission,” and further that “appropriate identification may help journalists avoid being mistaken as spies.”
Third, the Times ignores the possibility that other areas of law may protect journalists. The Manual is a descriptive account of the law of war only; it naturally does “not  address applicable Government or DoD policies or regulations” (page 3). The Manual reiterates this point on page 2:
This manual is not a substitute for the careful practice of law. As specific legal issues arise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions, judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to the specific factual circumstances.
On this point, bear in mind that the New York Times editorial approved of past DoD guidelines that “offered more sensible guidance on the treatment of journalists,” and further that Manual does not override past regulations or furnish any specific legal guidance. So while DoD may believe that censorship is permitted under the laws of war, it does not necessarily believe censorship is permitted under the laws of the United States. Dictators might, as the Times suggests, point to the Manual “to show that their despotic treatment of journalists – including Americans – is broadly in line with the standards set by the United States government,” but they would not have much basis for doing so.
None of this is to insist that all of the Manual’s provisions about journalism are accurate reflections of international law. The Manual implicitly acknowledges that it may contain errors: its preface notes that “[a]n effort has been made to reflect in this manual sound legal positions” (page v) (emphasis added), and page vi provides an email address to send comments and suggestions. DoD would undoubtedly benefit from hearing outside perspectives, and the New York Times is right to draw critical attention to the Manual. But the Times in this case missed an opportunity to focus its criticisms at DoD’s actual positions and the actual law.
Justice in Conflict
By Mark Kersten
August 13, 2015
A few weeks ago, the International Criminal Court (ICC) came nail-bitingly close to finally holding proceedings in an affected community rather than in The Hague. Ultimately, the ICC’s president decided that the risks of holding part of the trial of Bosco Ntaganda in Bunia in the Democratic Republic of Congo (DRC) outweighed the benefits of serving some ICC justice locally. The debate over whether to hold hearings in Bunia raises broader questions: should the ICC be a traveling court? Should its judges, prosecutors, and defence lawyers present their cases in the very same contexts and in the same communities where the alleged perpetrators committed their crimes? Beyond issues of security, what are the potential costs of doing so?
The International-Domestic Tension and Dream
In the world of international justice and human rights, it is almost universally accepted that accountability is ideally served locally. Justice is best pursued where victims and survivors reside, where evidence can be collected and presented, and where affected communities can see it being done.
In this line of thinking, global institutions that mete out criminal justice, like the ICC, are not ideal purveyors of accountability. Instead, they are seen as necessary bodies that ‘fill in’ the accountability gaps that result from states being unable or unwilling to investigate and prosecute mass atrocities and human rights violations themselves. Put another way, given the option of having no justice or abstracting accountability from affected societies to The Hague, the latter option is always preferable. And here’s the kicker: many believe that if the international community buys into the project of international criminal justice, over time there will eventually be no need for such international institutions. As the commitment to prosecute international crimes spreads, the ICC will work itself out of business and states will be able to justice themselves. As former ICC Chief Prosecutor Luis Moreno Ocampo regularly suggested during his tenure, the ultimate success of the Court would be realised when it had no cases in its dock because states meted out justice themselves.
The hope that the ICC’s mere existence and mandate will lead to a world where states prosecute all mass atrocities and human rights violations themselves is, at worst, a promise of unicorns and rainbows. At best, given the existence of regimes like those in Syria and Sudan, and the impunity gap in states with robust judiciaries like the United States and the United Kingdom, it is certainly a very long-term aspiration. This is not to say that this isn’t a good or useful aim to have. But it shouldn’t detract from the myriad of obstacles international criminal justice face today. It also shouldn’t obfuscate from the potential of bringing ICC justice closer to ‘home’.
A Traveling Court
In recent years, there has been a growing interest in seeing the ICC hold hearings in the communities in which the relevant atrocities were perpetrated. This is wholly in line with the Rome Statute of the ICC, which grants the court’s judges the purview to hold hearings, whenever deemed feasible and desirable, in affected communities. Along with the conviction that justice is best served as close to the source of injustice, many also believe that if affected communities truly got to see the Court in action, their oft-stated criticisms would be tempered and those governments that have made a habit of attacking the institution would have a harder time doing so.
In fact, the idea of holding ICC proceedings locally is nothing new. Court officials have previously considered holding hearings in the trials of Thomas Dyilo Lubanga in the Democratic Republic of Congo (DRC), of senior government officials allegedly responsible for the 2007/08 post-election violence in Kenya, and (in a much less public way) for Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya. Apart from the recent decision not to hold the Ntaganda trial in Bunia, there are ongoing and advanced discussions about holding the confirmation hearings of child soldier turned Lord’s Resistance Army (LRA) commander Dominic Ongwen in Gulu in northern Uganda.
Indicative of just how widespread the conviction is that local ICC justice is necessarily better ICC justice, it is hard, if not impossible, to find any public statement or article arguing that Ongwen should not be tried in Gulu. One piece insisted that such an in situ trial would be “great news”. In a rare moment of agreement, both the prosecution and defence are on board, suggesting the public face of the ICC, as well as Ongwen himself, prefer proceedings to be held in northern Uganda.
They may be right. But there also needs to be some critical reflection of the general assumption that, if only feasible, then ICC proceedings should occur locally. Feasibility, which would include issues such as security, cost, and the existence of the required infrastructure, is just one part of the necessary calculus. Holding ICC trials locally also needs to be appropriate and, crucially, not hinder the pursuit of impartial justice.
In particular, there is some risk that holding trials locally may deepen the Court’s dependence for cooperation from states, many of which are directly and indirectly responsible for mass atrocities. It is this dependence on states that has resulted in the fact that not a single state actor has ever been targeted by the ICC following a state self-referral. Put more bluntly, so long as the Court is dependent on states for providing security and for protecting witnesses and victims, government actors are likely to enjoy impunity. To target them with prosecution would not only eviscerate such cooperation; the responsibility for any ensuing violence or injustice would be pinned on the ICC.
This potential drawback of local ICC justice can be mitigated by holding select, symbolic and limited proceedings in situ. In the Ongwen case, the Court is only considering having the confirmation hearings held in Gulu. However, if these proceedings are successfully held in northern Uganda, they could create an expectation that more proceedings be done in situ – an expectation that the ICC may not be able to afford to meet.
Yes, Local is Ideal. But…
None of the above should be read as an argument against serving ICC justice locally. But we need to think through the implications of doing so – beyond whether it is feasible for security reasons and beyond the mantra that local ICC justice is always and necessarily better ICC justice. More importantly, this is a call to weigh the demands and expectations of victims and survivors. There is no doubt that many would like to see justice served closer to home. Many others, however, would like to see state crimes prosecuted. Their voices need to be heard as well.
The Dark Side of Peace Enforcement: Sexual Exploitation in CAR
By Fionnuala Ní Aoláin
August 14, 2015
Media reports continue to trickle through detailing rape and indiscriminate killing by peacekeepers in the Central African Republic (CAR). Despite condemnation by UN Headquarters and some moves toward accountability by those states providing troops, the reports of sexual violence and exploitation continue unabated. Some background to the most recent allegations is set out below. I also explore some of the underpinning legal and political gaps that enable a culture of impunity to thrive in a number of peacekeeping operations.
In April 2014, Anders Kompass leaked the United Nations report to French authorities, which detailed the “rape and sodomy of starving and homeless young boys by French peacekeeping troops” at a camp for internally displaced people in Bangui.
The report details abuse by French and nationals of other contributing countries from December 2013 to June 2014. (Access to leaked report as published by Aids Free Project here.)
More reports of sexual violence continued through the summer, with the reported rape of a girl under the age of 16 by Moroccan peacekeeping forces.
Most recently, a 12 year-old girl was raped and two civilians were indiscriminately killed.
“I cannot put into words how anguished and ashamed I am by recurrent reports over the years of sexual exploitation and abuse by UN forces,” said Ban Ki Moon.
On August 13, 2015, the Secretary General also requested an emergency meeting of the Security Council. UN Spokesman Stéphane Dujarric added, “He (the Secretary General) stressed that zero tolerance means zero complacency and zero impunity and that when allegations are substantiated, all personnel whether military, police, or civilians must be held accountable.”
In a May interview with Newsweek, Tony Banbury, the UN’s assistant secretary-general for field support, stated: “We have challenges in achieving criminal accountability justice, but immunity is not one of them.” He did not focus on criticizing or analyzing the placement of prosecutorial responsibility with contributing states, but rather “discussed the “challenges with criminal responsibility and criminal prosecution.” Banbury continued, saying: “The objective is zero cases, but this is an imperfect world. There probably are going to continue to be some cases.”
Graça Machel stated, “the evidence is that things have not changed or improved. Currently, they have gotten even worse.”
Lieutenant General Roméo Dallaire claims that the “chaos” of the conflict and atmosphere “merely makes it available for those who might be so inclined, who might actually tip over and might actually do it.”
The Huffington Post reports that “[m]ilitary authorities and the Paris prosecutor’s office opened a preliminary investigation and investigators went to Central African Republic in August.”
The French Ministry claims to be in pursuit of criminal prosecution, which will result in “the strictest sanctions against those responsible for what would be an intolerable attack on the values of a soldier.”
François Hollande has stated: “If some soldiers behaved badly, I will be merciless. If this information is confirmed, there will be exemplary punishment.”
Central African Republic Officials
Central African Republic Justice Minister, Aristide Sokambi spoke out to say that the Central African Republic will also be pursuing prosecution of the French soldiers responsible. He added: “I deplore the fact that we haven’t been joined about this investigation when we have cooperation agreements with France. So I’ve instructed the public prosecutor to open an inquiry and then try to collect evidence already available to the French.”
Despite these protestations of horror at the infliction of sexual harm on minors and women in the CAR, the challenge of addressing sexual violence caused by peacekeepers and international personnel is not a new one. During missions in various African states in the mid-1990s to the present, Belgian, Canadian, Italian, and Pakistani peacekeepers were implicated in crimes ranging from torture to rape to murder. Reports of survival prostitution and human trafficking remain a mainstay of the peacekeeping economy.
What would change this? It is fair to say that peacekeeping has a positive impact in many countries experiencing or emerging from conflict and its absence would create multiple other insecurities for populations in conflict-affected states. Taking away the peacekeepers is not the solution. However, when readily identifiable troop contributing states have been consistently implicated in sexual violence, and have consistently shown an unwillingness to train, discipline, and make their soldiers criminally accountable, then the privilege of UN service should be withheld. The bottom line on preventing sexual violence by peacekeepers in the CAR and elsewhere is accountability.
That accountability starts at the very top. Where a force has been implicated in sexual violence then, the United Nations Secretary General has an obligation to seek the resignation of the force commander. This realisation emerges in the decision taken by the Secretary General Ban Ki-Moon asking General Babacar Gaye, the head of UN peacekeeping operations in the Central African Republic to resign. In a universe of military command responsibility, the head of a peacekeeping mission is ultimately responsible for the systematic exploitation and violence against populations that troops have a responsibility to protect.
The second step is to meaningfully implement investigation and prosecution procedures. In most cases of sexual violence, a UN investigation takes up to or beyond 18 months. By the time the investigation is over, the evidence has disappeared, victims are more vulnerable and the soldiers have been whisked off home. Investigations have to be resourced intensively and become effective mechanisms to show those harmed that their injuries are taken seriously.
The third step is punishment. In most cases of peacekeeper violence, there are few consequences for the perpetrators. Consistent standards must be enforced by the terms of Status of Force Agreements with troop contributing states. These standards must set out consistent processes and penalties for sexual violence without exception. When soldiers know that the penalties and costs are near zero for violence committed in places far from home, a culture of impunity reigns.
The United Nations continues to issues platitudes to the victims, and occasionally senior heads will roll. In reality though, unless there is consistent articulation and enforcement of penalties within the military chain of command, including for commanding officers, the litany of sexual violence will not go away.
What Happens if American-Trained Rebels Commit War Crimes?
By Nathalie Weizmann
August 18, 2015
It is widely known that the US is facing numerous challenges in arming and training a select number of fighters as part of a group known as the “New Syrian Forces,” which are part of the Free Syrian Army’s Division 30, in order to fight ISIS on the ground in Syria. A paltry fifty-four such fighters have completed the “train and equip” program so far, with the Pentagon now vetting and training additional fighters. In mid-July, the freshly trained unit was deployed into Syria, but the Nusra Front abducted a number of fighters on July 28, and stormed their encampment on July 31, capturing, wounding or killing several more. Other fighters left the area, and a number went unaccounted for. Last Sunday, the Nusra Front released seven Division 30 fighters, but a Pentagon official anonymously claimed US-trained fighters were not among them.
A number of questions of international law emerge from the US “train and equip” program, some of which were explored in Michael Schmitt’s post earlier this month. An additional question that merits some consideration is the relationship between the US and “New Syrian Forces” fighters, and whether the US bears any responsibility for these fighters’ actions should they commit violations of international humanitarian law.
Reports indicate that special operations forces working under US Central Command are leading the “train and equip” program. At the outset, the program aimed to provide “basic military gear, including ammunition, small arms, trucks and machine guns to mount on them.” We know today the US has provided fighters with heavy machine guns, communications technology, and laser pointers for directing airstrikes. The fighters also receive a stipend from the US.
When the program was launched, the Pentagon declared it would “not have direct tactical control over the trained units once they deploy in Syria,” but instead would be “establishing links” with fighters so the US could “exert indirect influence on Syria’s chaotic battlefield.” Today, the fighters are said to have direct contact with the US-led coalition, but report to Syrian commanders. US Central Command spokesman Col. Pat Ryder has said the fighters are not under US command and control. Once trained, they return to Syrian rebel groups with whom the US has been working. Ryder has added, “[a] key aspect of the Syria Train and Equip program is to train these personnel as units to effectively fight together, which includes training and developing their leaders and ensuring they have a chain of command that can lead forces effectively and appropriately”.
Now, how do these facts fit into the legal framework on State responsibility? Under international law, a State commits an internationally wrongful act when an act or omission is attributable to it and constitutes a breach of its international obligation. A State will bear international responsibility for such a wrongful act, with one of the legal consequences being the obligation to make full reparation for the material or moral injury caused by that act.
As for when a State is responsible for the conduct of a person or group that is not a State organ or empowered to exercise governmental authority, the International Law Commission has set out the following rule:
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.
In the 1986 Military and Paramilitary Activities in and against Nicaragua decision, the International Court of Justice (ICJ) was faced with deciding whether to attribute the contra forces’ actions to the US, which had largely financed, trained, equipped, armed and organized their military and paramilitary activities. The US had also collaborated closely with the contras to decide and plan operations on the basis of intelligence and logistical support that it had provided to them. The Court held:
that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.
In 2007, the ICJ reiterated the attribution test of “effective control” in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case. In deciding whether the Srebrenica massacres were attributable to the Federal Republic of Yugoslavia, the Court held:
Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility
Despite the standard of State direction, enforcement, instruction or effective control set out by the ICJ, the International Criminal Tribunal for the Former Yugoslavia (ICTY) articulated a different test in the Tadic case. (With the International Criminal Court later adopting the ICTY approach in the Lubanga case.) In Tadic, the ICTY was deciding whether the Federal Republic of Yugoslavia’s support for the Bosnian Serb armed forces rendered the armed conflict against the government of Bosnia and Herzegovina international. The Appeals Chamber distinguished the required degree of control over private individuals from the required degree of control over an organized armed group such as the Bosnian Serb armed forces. Because a member of an organized group that has structure, a chain of command, and a set of rules will conform to the group’s standards and be subject to its authority, it is sufficient for the group to be under the “overall control” of the State rather than the “effective control” described in Nicaragua. The ICTY explained:
international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question …. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.
Of course, the ICJ, and legal experts such as Dapo Akande, have disagreed with the Tadic test for various reasons. For instance, the ICJ has argued that the ICTY standard was used to determine whether or not an armed conflict was international, but that “logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.” Akande argues that the ICJ test for attribution of responsibility is correct, while the test of whether or not there is an international armed conflict is simply whether or not force has been used by one State against another, for example by training and arming non-state armed groups.
It may be tempting to consider another avenue of State responsibility for the actions of non-state actors. In 2013, the government of Austria shared its position against supplying arms to the Syrian opposition, stating, “Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid and assistance in the commission of such acts.” The position referred to the Article on State responsibility for aiding or assisting in the commission of an internationally wrongful act: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”
However, as the rule clearly states, it applies to a State aiding or assisting another State. Referring to this as a test for “complicity,” Derek Jinks has explained why it only applies to assisting or aiding another State:
The structure of the rules suggests that the lower [complicity] threshold suffices for imputing the conduct of another state because the public character of any such acts is clear-that is, other states clearly have international legal personality. Attribution of the private acts, on this view, is appropriate only if the nexus between the state and the ostensibly private actor confers a public character on the conduct in question-recasts the private acts as “state action.”
Finally, by providing Syrian fighters with the means and skills to engage in war, the US also bears the obligation to ensure that they comply with IHL, even if the fighters’ actions aren’t attributable to it. Under Article 1 common to the four Geneva Conventions of 1949 and Additional Protocol I (and also considered to be part of customary law), States must ensure respect for IHL by other participants in an armed conflict. States “may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.” A useful and recent piece by Knut Doermann and Jose Serralvo explores the content of this obligation of due diligence, which has been reaffirmed by the ICJ as well as the UN Secretary-General, General Assembly and Security Council. The authors explain, “a State with close political, economic and/or military ties (for example, through equipping and training of armed forces or joint planning of operations) to one of the belligerents has a stronger obligation to ensure respect for IHL by its ally. This is precisely the underlying logic of CA 1 …” As what can be considered an offshoot of this, the Arms Trade Treaty, which the US has signed but not ratified, reiterates all States’ obligation to ensure respect for international humanitarian law and translates this into an explicit prohibition of weapons transfers if the transferring State has knowledge that the weapons will be used to commit certain war crimes. Short of such knowledge, a risk assessment must be carried out and the weapons withheld if an overriding risk of serious violations is found.
If we apply the Nicaragua test to what we know about US efforts to train and equip Syrian fighters, the US does not appear to be directing or enforcing the fighters’ actions or to have effective control over their operations. Even under the Tadic test applicable to a State’s influence over organized armed groups, it does not appear that the US is “organi[z]ing, coordinating or planning the military actions of the military group” (and this is assuming the fighters qualify as an organized group for the purpose of this test). Nevertheless, the US does have an obligation to use its influence wisely and cautiously, and to ensure that the fighters comply with international humanitarian law.