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The Egyptian Revolution and the Rule of Law after the Arab Spring

June 17, 2013 by ecsigmund

Written by Judge Mostafa Farrag*

          Egypt has faced many revolutions and uprisings throughout its history, the most famous of which was the nationalist uprising in 1879-1882 against the Egyptian ruler Khedive Tewfik Pasha and European influence in the country. Led by and named after Colonel Ahmed Urabi, Urabi’s Revolt had a long lasting significance as the first instance of Egyptian anti-colonial nationalism, and would later play a major role in Egyptian history.

The symbol of 1919 revolution (Photo courtesy of Michael Collins Dunn)

          

 

 

 

 

 

 

 

         

          

 

          The Egyptian Revolution of 1919 was a countrywide revolution against the British occupation of Egypt and Sudan.  It was carried out by Egyptians and Sudanese from different walks of life in the wake of the British-ordered exile of revolutionary leader Saad Zaghloul other members of the Wafd Party 1919. It was the first revolution involving women in Egypt. The revolution led to the release of Saad Zaghloul, Britain’s recognition of Egyptian independence in 1922, and the implementation of a new constitution in 1923.  Britain, however, refused to withdraw its forces from the Suez Canal Zone, a fact that would continue to sour Anglo-Egyptian relations in the decades leading up to the Egyptian Revolution of 1952.

          The Egyptian Revolution of 1952 began on July 23, 1952 with a military coup by the Free Officers Movement, a group of army officers led by Muhammad Naguib and Gamal Abdel Nasser. The revolution was initially aimed at overthrowing King Farouk. However, the movement had more political ambitions, and soon moved to abolish the constitutional monarchy and aristocracy of Egypt and Sudan, establish a republic, end the British occupation of the country, and secure the independence of Sudan.

Tahrir Square, the place from which raised the sun of freedom (Photo courtesy of Jetpac)

          Last but not least, on January 25, 2011 the revolution that ousted President Hosni Mubarak ended three decades during which Egypt suffered from poverty, unemployment and inequality between citizens. The uprising of against President Mubarak started with a call for change through social media, including Facebook and Twitter.  This call asked the people to protest in the streets for liberty, equality and better standards of living for everyone. Despite attempts by the government to stop the revolution from its cradle, the people fought for their rights and persisted in their demands until their dreams came true.

          The Egyptian revolution is known as the uprising that caused President Hosni Mubarak to step down from his dictatorial throne after 30 years. The Egyptian people were frustrated by an oppressive government, corrupt leaders, a lack of jobs, and a fraudulent parliamentary election that gave the majority of the parliament to the “National Democratic Party” (NDP) that the former president represented. Mubarak tried to consolidate all power in his hands and the hands of the NDP, when tens of thousands, and subsequently millions of Egyptians first took to the streets to demand political change.

          After less than three weeks of protesting, during which Egypt had lost many of its men and women, Vice President Omar Suleiman announced on February 11, 2011 that Mubarak would step down as president and turn power over to the Supreme Council of the Armed Forces (SCAF). The military junta, led by effective head of state Mohamed Hussein Tantawi, announced on February 13 that the constitution would be suspended, both houses of parliament dissolved, and that the military would rule for six months until elections could be held.

          The first round of voting in the country’s first presidential election in history was held on May 23 and 24, 2012, and by June 30, 2012 Mohamed Morsi was sworn in as Egypt’s first democratically elected president before judges at the Supreme Constitutional Court.

The Concept of Democracy 

          Bearing in mind that a democratic form of government does not automatically ensure the freedom and liberty of all citizens and inhabitants, since it remains possible for powerful majorities to abuse and deny the rights of minorities, and since the democratic process itself may be corrupted, resulting in a despotic government; the democratic rule of law is essential to help the government confront these challenges. The rule of law itself does not ensure the existence and enforcements of laws; there should be a moral content as well. This moral content should include the dignity, equality and human rights of all persons. If these moral contents are absent, the citizens may be subject to the rule by law rather than the rule of law.

          The fact that Egypt boasted two houses of parliament and held regularly scheduled elections did not diminish the fact that Egypt was a police state in which “rule by law” rather than “rule of law” prevailed. 

  The Effects of Corruption in the Middle East on the Rule of Law

          In early 2011, many countries in the Middle East and North Africa faced poor economic conditions from high food and energy prices, to high unemployment rates among young people, to weak economic reforms, and unclear measures to fight political corruption. For these reasons, economic reform is, and continues to be a top priority of countries that toppled former governments in 2011, including Egypt.

          So far, countries that experienced civil revolts such as Tunisia, Egypt, Libya, Yemen, Syria, and Bahrain are the economies most negatively affected, at least in the short-term, by the Arab Spring. According to the IMF, Gross Domestic Product (GDP) losses in these countries are estimated at US$ 20.56 billion for 2011 alone. Because of the importance of stability in these countries to the world energy market, the world can only hope that financial reform and a return of the rule of law will help these countries return to much needed economic growth.

          The most achievable near-term opportunities for reform might be understood as those occurring in the “voice and expression phase” of transitional development. More complicated challenges loom for the rule of law, including overhauling the judicial system and the reorganization of the police and security services to ensure that they are subordinate to civil authorities and subject to meaningful checks on their power. These structural reforms will require years to accomplish, as they entail the implementation of extensive training programs, complex reconstruction of legal codes, and the establishment of new institutional habits and cultures.

          The months since Mubarak’s ouster have revealed a much darker outlook for reform. By the end of October 2011, the Supreme Council of the Armed Forces (SCAF) had resorted to familiar methods of repression, including severe limits on the activities of civil society and independent media, and the fomenting of sectarian tensions for political gain. The SCAF’s extension and expansion in September 2011 of the country’s oppressive emergency law, a hallmark of the Mubarak era, sent a chilling signal to those working toward democratic governance. The scope of the law—nominally restricted in 2010 to narcotics and terrorism offenses—was widened to include labor strikes, traffic disruptions, and the spread of false information.

          Rule of law principles exist to prevent unfair domination of voting mechanisms or the manipulation of the results. Such principles can also play an essential role after elections are concluded by empowering opposition parties to publicly critique the ruling party. Looking ahead to the days following the Egyptian elections the rule of law remains weak, not only in Egypt but in most Arab countries as well. Egypt now has a golden opportunity to begin reshaping its future by evaluating candidates and new political parties in accordance with its commitment to these principles. This would be a way to prevent the new government from abusing its new-found powers or prejudicing future elections and their outcomes. Failing to strive for a strong rule of law may precipitate a reversion to old dictatorships and new monopolies on power in the Arab world.

Challenges with Egypt’s latest Constitution

          The Constitution of the Arab Republic of Egypt is the fundamental law of Egypt. It was signed into law by President Mohamed Morsi on December 26, 2012 after it was approved by the Constituent Assembly on November 30, 2012 and passed in a referendum held December 15-22, 2012.

          The struggle over Egypt’s constitution, which may be the most influential example of a constitution among countries in the region undergoing change, demonstrates the difficulty of protecting human rights, as noted by Human Rights Watch in their World Report 2013. The constitution has some positive elements, including clear prohibitions on torture and arbitrary detention, but broadly worded and vague provisions on speech, religion, and the family have dangerous implications for women’s rights and the exercise of social freedoms protected under international law. The constitution also seeming reflects an abandonment of efforts to exercise civilian control over the military.

          The creation of a rights-respecting State can be painstaking work that requires building effective institutions of governance, establishing independent courts, creating professional police forces, and resisting the temptation of majorities to disregard human rights and the rule of law. Sadly, the desire for freedom from oppression and corruption heralded in the Arab Spring has been hijacked by those who seek to replace fallen regimes with rulers who have even less respect for human rights, including the rights of women, as well as religious and ethnic minorities. It is incumbent on the community of nations and NGOs to support peaceful transitions of governments in the Middle East and to persuade, through diplomatic and economic means, the Islamic theocracies in the region to apply the rule of law to protect religious and ethnic minorities and promote equality for women.   

          Finally, democracy and the rule of law are interdependent and both are necessary to create an environment in which human rights can be realized. The big gain of the Arab Spring would be realizing the matching of these essential elements to build a successful form of government and to realize the dream of all the people.

 _____________________________________________________________________________

* Judge Mostafa Farrag is a Hubert H. Humphrey fellow in law and human rights. He was a professional affiliate with International Humanitarian Law Dissemination at the American Red Cross from May-June 2013.  Mr. Farrag is a judge in the Damanhur Primary Court in Egypt and a lecturer at the Arab Academy for Sciences, Technology and Maritime Transportation. He is a member of several boards, including the Arab Association for Commercial and Maritime Law, the Executive Board of the Egyptian State Alumni Association, Rotary International, and the Egyptian Association for Francophone Jurists.  Mr. Farrag holds an LL.M. degree in Logistics of Judiciary and Alternative Dispute Resolution from the Arab Academy for Sciences, Technology and Maritime Transportation and an LL.B. degree in law from Alexandria University.  He has publications including a book entitled Understanding Human Rights which includes a discussion of international humanitarian law, and a second book entitled Egyptian Tourism Legislation.

References:

Robert Stein, Rule of Law: What Does it Mean? 18 Minn. J. Int’l L. 293 (2009) available at
http://www1.umn.edu/humanrts/edumat/Rule%20of%20Law%20Stein%20English.pdf

Arab Spring Human rights, and the Rule of Law, LexisNexis, Dec. 31, 2011 available at
http://www.lexisnexis.com/community/international-foreignlaw/blogs/issues-spotlight-rol/archive/2011/12/31/arab-spring-human-rights-and-the-rule-of-law.aspx

Marc Fisher, Arab Spring Yields Different Outcomes in Bahrain, Egypt and Libya, The Washington Post, Dec. 20, 2011 available at
http://www.washingtonpost.com/world/arab-spring-yields-different-outcomes-in-bahrain-egypt-and-libya/2011/12/15/gIQAY6h57O_story_2.html

Human Rights Watch, World Report 2013: Challenges for Rights after Arab Spring, 2013 available at
http://www.hrw.org/news/2013/01/31/world-report-2013-challenges-rights-after-arab-spring

Christopher Walker and Vanessa Tucker, After the Arab Spring: The Uphill Struggle for Democracy, 2011 available at
http://www.freedomhouse.org/report/algeria/overview-essay

Posted in Arab Spring, Egypt | Leave a Comment »

Why Shifting Drone Strikes from the CIA to the DoD is a Good Idea

June 13, 2013 by ecsigmund

Written by Ellen Policinski*

          The use of drones as a tool to carry out targeted killing operations raises a number of concerns about the legality of the administration’s targeting policies (for details on targeted killing operations generally, see my previous blog post here).  One aspect of drone strikes not previously addressed is the involvement of non-military personnel, particularly the Central Intelligence Agency (CIA).  Although the US currently has the most extensive drone program in the world, at least 59 other countries are known to possess some form of unmanned aerial vehicles and the involvement of non-military personnel in conducting US drone strikes may set a dangerous precedent for the future. 

          Although very little about the CIA drone program has been officially acknowledged due to the covert nature of the operations, it has been asserted that the CIA has conducted drone operations in Northwest Pakistan, Yemen and Somalia.[1] Recently, Attorney General Eric Holder acknowledged in a letter to Congress that four US citizens have been killed in drone strikes since 2009, although only alleged al-Qaeda affiliate Anwar al-Awlaki was deliberately targeted.[2]  It is thought that the drone that killed al-Awlaki was controlled by the CIA.[3]

          From publicly available documents and news reports, it appears that until now there have been two parallel drone programs: one run through the CIA and another run through the Department of Defense (DoD).[4]  For a few months there have been reports discussing the potential shift of drone operations out of CIA control and to DoD in light of new classified policy guidance reported to do just that.[5]  The proposed shift would eventually put command and control over all drone operations in the hands of the military. 

          This move could change the status of CIA personnel involved in carrying out targeted killings abroad.[6]  In wartime, international humanitarian law provides certain protections for the military that do not apply to civilians, such as POW status and immunity for prosecution for taking part in the fighting.  It also protects civilians from attack so long as they do not actively fight in the conflict.  Where military operations are run by non-military personnel, these protections are no longer applicable.  Even more frightening than CIA personnel themselves loosing immunity from attack, to the extent that targeted killing operations are based from within the United States, Americans could be at risk of attack if they live or work near places where drone operations are based.

          CIA agents who participate in targeted killing operations in the context of armed conflict raise important questions under IHL.  Given that lethal drone strikes are unmistakably military operations, the CIA personnel involved may fall under one of two categories: combatants or civilians who are directly participating in hostilities. 

 The CIA as Combatants

          The advantage of being considered privileged combatants is that these personnel would be entitled to immunity from prosecution for acts that under normal circumstances would be considered crimes.[7]  Without this privilege targeted killing would be subject to applicable criminal law regimes, for example the foreign murder statute in the U.S. or even the criminal laws of the country where the killing takes place.[8]

          Even if the CIA is not officially part of the U.S. armed forces, its personnel may still be considered combatants if they meet four criteria: 1) They are commanded by a person who is responsible for his or her subordinates; 2) They wear a fixed distinctive sign, like a uniform, that is recognizable at a distance; 3) They carry their weapons openly; and 4) they respect IHL.[9]  CIA operations are covert and are conducted far from the battlefield.  It is therefore unlikely that they would be considered combatants without formally being incorporated into the armed forces.

 The CIA as Civilians

          Alternately, CIA personnel may be civilians directly participating in hostilities.[10]  This is an important distinction because, unlike soldiers, who may legally be the target of attacks simply because they are combatants, civilians are protected from direct attack unless they actively take part in the fighting. [11]  Therefore, if CIA personnel are conducting a military operation, they would be legitimate targets while preparing or carrying out that operation.

          What constitutes “[d]irect participation in hostilities” making a civilian targetable is not clearly defined in international law.  Because of this, the International Committee of the Red Cross (ICRC) has developed the Interpretive Guidance on the Notion of Direct Participation in Hostilities to clarify the issue.[12]  According to the ICRC Interpretive Guidance, there are three conditions which must all be met for conduct to be considered direct participation in hostilities: 1) the harm caused by an action must meet a certain threshold; 2) the act must directly cause harm to the enemy forces; and 3) the action must have been done with the intent to harm the enemy (otherwise known as the “belligerent nexus” criteria).[13]  If CIA personnel participating in drone strikes meet these three criteria, they are directly participating in hostilities and lose immunity from being intentionally attacked and killed.

          There are two ways to meet the threshold of harm criteria.  The first is by performing an act that is likely to adversely affect the military operations or military capacity of either side of the armed conflict.[14]  The second way to meet the threshold of harm criteria is to harm persons or objects protected from direct attack, such as civilians, medical personnel, or hospitals.[15]  Drone strikes are designed to eliminate enemy forces and undermine the military capacity of the enemy. Accordingly, CIA drone strikes likely meet this criterion. 

          The direct causation threshold makes a distinction between “direct” and “indirect” participation in hostilities.[16]  Indirect participation is more like part of the general war effort or a war-sustaining activity than fighting associated with the conflict.[17]  This could be growing a victory garden or sending care packages to troops stationed abroad.  The line between direct and indirect participation is not always clear and depends on the specific facts of each situation. 

          The ICRC Interpretive Guidance specifically mentions drone operations with respect to the complexity of determining causation, saying that while many of the persons involved in executing a drone strike “are integral to that operation and directly participate in hostilities, only few of them carry out activities that, in isolation, could be said to directly cause the required threshold of harm.  The standard of direct causation must therefore be interpreted to include conduct that causes harm only in conjunction with other acts.”[18]  In other words, all persons involved in a drone operation are actively engaged in the fighting, even if they are not the person who actually “pulls the trigger” to fire the missile used.

          In order to meet the belligerent nexus criteria, the underlying act must be connected to the conflict.  According to this test the act must be done with the intent to support one side conflict over the other.[19]  This is clearly the case where a drone strike is intended to eliminate enemy forces.  In light of these criteria it is quite likely that CIA personnel who take part in drone operations are directly participating in hostilities.

          The difference between being considered a combatant and being considered a civilian is that civilians who actively take part in hostilities can be prosecuted for murder, whereas combatants can only be prosecuted if the attack violated IHL. CIA personnel are therefore themselves placed in a vulnerable position when they are asked to conduct drone operations.

          Whether CIA personnel are considered combatants or civilians directly participating in hostilities, they are legitimate targets for the enemy to attack under IHL.   This is disturbing in light of the fact that drone operations can be conducted from anywhere in the world, far from the traditional zone of hostilities, possibly even based in civilian communities inside United States territory.  Should these facilities be attacked, American civilians would be at risk.  

 

* Ellen Policinski is a legal fellow with the International Humanitarian Law Dissemination unit at American Red Cross National Headquarters.  She holds a J.D. from Villanova Law School in Villanova, Pennsylvania and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland.

[1] See Richard W. Murphy and Afsheen John Radsan, “Measure Twice, Shoot Once: Higher Care for CIA Targeting,” William Mitchell Legal Studies Research Paper No. 2010-14, Texas Tech Law School Research Paper No. 2010-25, 2 (16 June 2010); Peter Baker, “Obama’s War Over Terror,” (NY Times, 10 Jan.2010); Ryan Vogel, “Drone Warfare and the Law of Armed Conflict,” 39 Denv. J. Int’l. L. & Pol’y. 101.

[2] Karen DeYoung and Peter Finn, “U.S. Acknowledges Killing of Four U.S. Citizens in Counterterrorism Operations,” (Washington Post, 22 May, 2013). Available at:
http://www.washingtonpost.com/world/national-security/us-acknowledges-killing-of-four-us-citizens-in-counterterrorism-operations/2013/05/22/7a21cf84-c31d-11e2-8c3b-0b5e9247e8ca_story.html
 on.

[3] Scott Neuman, “CIA Drone Operations Could be Handed to Pentagon,” (NPR, 21 Mar. 2013). Available at:
http://www.npr.org/blogs/thetwo-way/2013/03/21/174925726/cia-drone-operations-could-be-handed-to-pentagon
.

[4] Daniel Klaidman, “Exclusive: No more Drones for CIA” (The Daily Beast, 19 Mar. 2013). Available at:
http://www.thedailybeast.com/articles/2013/03/19/exclusive-no-more-drones-for-cia.html
.

[5] Peter Baker, “Pivoting from a War Footing, Obama Acts to Curtail Drones,” (New York Times, May 23, 2013).  Available at:
http://www.nytimes.com/2013/05/24/us/politics/pivoting-from-a-war-footing-obama-acts-to-curtail-drones.html?pagewanted=all
.

[6] For a discussion of the affect of this move under U.S. law, see the March 20, 2013 Lawfare post by Jack Goldsmith, “No More Drones for CIA.”  To read about a recent legal blow to the secrecy of the CIA drone program, see this March 15, 2013 article on the ACLU website: DC Appellate Court Rejects CIA’s Secrecy Claims in ACLU’s Targeted Killing FOIA Lawsuit or this Reuters article: CIA Must Respond to Request about Secret Drone Program.

[7] ICRC Interpretive Guidance, Part II(C)(X)(1) and Part II (X); Robert Barnidge, “A Defense of Drone Attacks in Pakistan Under Humanitarian Law.”

[8] 18 USC 1119.  For a detailed discussion of this, see the March 10, 2013 post by Kevin Jon Heller, Why the ‘Public Authority’ Defense Doesn’t Work for the CIA on Opinio Juris.

[9] GC III Art. 4(1), (2).

[10] AP I Art. 50, In armed conflict, civilians are generally understood to be all the people who are not combatants .  For instance, AP I, Art. 50 defines civilians as: “Any person who does not belong to one of the categories of persons referred to in Article 4 A 1), 2), 3) and 6) of the Third Convention and in Article 43 of this Protocol.

[11] GC IV Art. 27; AP I Art. 51(3); AP II Art. 13(3). IHL neither prohibits nor authorizes civilian participation in hostilities, but civilians lose their protection from attack if “and for such time as they take a direct part in hostilities.” Attacks conducted by civilians which otherwise comply with IHL are therefore not war crimes, but regular crimes for which those civilians may be criminally tried.  GC IV Art. 27; AP I Art. 51(3); AP II Art. 13(3);  Human Rights Institute, Columbia Law School, Background Note for the American Society of International Law Annual Meeting, “Targeting Operations with Drone Technology: Humanitarian Law Implications” (March 25, 2011) p. 27; Nils Meltzer, ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Part II(B)(X); Robert Barnidge, “A Defense of Drone Attacks in Pakistan Under Humanitarian Law” originally in Boston University International Law Journal, reproduced by the Foundation for Defense of Democracies here.

[12] The ICRC Interpretive Guidance is available in its entirety here.

[13] Id., Part I(V)

[14] Id., Part II(B)(V)(1)(a)

[15] Id., Part II(B)(V)(1)(b)

[16] Id., Part II(B)(V)(2)(a)

[17] Id., Part II(B)(V)(2)(a). How much of a contribution to the military capacity of a party to the conflict a person must make in order for something to be considered direct rather than indirect participation in hostilities depends on there being a close causal relationship between the conduct and the harm that occurs.  Id., Part II(B)(V)(2)(b); Sandoz commentary to AP I at Section/Para. 4787 “The term ‘direct participation in hostilities’… implies that there is a sufficient causal relationship between the act of participation and its immediate cons

[18] Id., Part II(B)(V)(2)(c).

[19] Id., Part II(B)(V)(3)(a); AP I Art. 50.

Posted in Drones, ICRC, Laws of Armed Conflict | 1 Comment »

The Obama Administration’s Counterterrorism Manual and Targeted Killings in the “War on Terror”

January 29, 2013 by ecsigmund

Written by Ellen Policinski*

       The YouTube video above, filmed in 2008, depicts a drone strike on individuals setting up a rocket launcher in Baghdad.  Drone strikes such as this one are one method that is used to carry out the targeted killing policy extensively relied on in U.S. counterterrorism operations.  Targeted killings can also be carried out through other means, such as traditional air strikes or special forces operations.  Targeted killing began after 9/11 under the Bush administration and was later expanded by the Obama administration, which is currently in the process of developing a detailed counterterrorism manual which will lay out the policies behind this practice.  The manual is expected to articulate the process for developing “kill lists” and the framework, or “disposition matrix,” used to target U.S. citizens, although much can already be determined through official and unofficial statements.[1]  However, the manual is likely to leave a significant amount of leeway for conducting drone strikes, particularly the CIA-run drone campaign in Pakistan and elsewhere.[2]  The UN is also attempting to create rules limiting drone use, and has launched an investigation into remote targeting.[3]

         Targeted killings carried out by drones are a constant source of interest in the news, with the public seemingly fascinated by drone technology.  While drones (also known as unmanned aerial vehicles, or UAVs) may be novel, the legal implications are less so.  They fall under the same legal framework as other weapons systems.  Much of the public discussion concerning drones is based on the misconception that they are autonomous.[4]  It is important to note that drones are not autonomous, but rather are piloted remotely by human beings.[5] In light of this, drones should be considered as a weapons platform no different from airplanes or helicopters as far as the law of armed conflict is concerned.  Both drones as a weapons system and the hellfire missiles they typically carry have been subjected to pre-deployment weapons reviews as mandated by international humanitarian law, and have been found to comply with international legal standards.[6]

           Other aspects of the current approach to targeted killing operations are more interesting from a legal perspective.  Targeted killing can be defined as the intentional and premeditated killing of a specific, deliberately selected individual.[7]  At the international level there are two legal frameworks that can apply to this type of deprivation of life by a government: the law of armed conflict or human rights law.[8]  In the context of an armed conflict, targeted killings may be permissible so long as they follow the rules applicable to the conduct of hostilities, discussed below.  In contrast, it is very unlikely that a targeted killing operation conducted in peacetime would comply with international law since the right to life prohibits that killing be the sole aim of an operation.[9] Operations undertaken in peacetime are also more likely to be in violation of U.S. domestic law.[10]

         The three main principles which must be respected in the conduct of hostilities are distinction, proportionality, and precautions.  According to the principle of distinction, belligerent parties in an armed conflict must distinguish between civilians and combatants at all times.[11]  Civilians may not be the target of attacks so long as they do not actively participate in hostilities.[12]  The principle of proportionality provides that the expected damage to the civilian population cannot be excessive compared to the direct and concrete military advantage anticipated to be gained from the attack (although some collateral damage is accepted).[13]  Lastly, precautions must be taken to protect the civilian population from the effects of military operations.[14]  Precautions include choosing the weapons and tactics which are least likely to cause excessive harm to the civilian population and providing prior warnings to the civilian population, whenever possible.

       These rules, including those concerning targeting individuals, only apply during “armed conflict”.  There are two categories of armed conflict; international and non-international armed conflicts.  International armed conflicts may be understood as a war between two or more countries.[15]  Non-international armed conflicts are violent conflicts between a country and one or more armed groups or between armed groups, for example a civil war.[16]  A non-international armed conflict is distinguished from criminal conduct and other forms of violence by the two criteria: 1) the intensity of the violence; and 2) the level of organization of the armed group or groups involved.[17]  Counter intuitively, these types of armed conflicts may cross international borders.

    The traditional understanding in international armed conflict is that international humanitarian law governs the conduct of soldiers anywhere in the world the belligerent parties can be found, meaning that member of the enemy’s armed forces could be targeted regardless of geographic location.[18]

       In the context of modern conflicts the enemy is not necessarily concentrated within the territory of a single country or even a single geographic region.[19]  According to some, the traditional understandings of the geographic limitations of armed conflict risk rewarding terrorist groups who find refuge in countries not participating in the conflict, where they cannot be attacked.[20]  The so-called “Global War on Terror” is an example of a modern conflict against an armed group that transcends international borders, complicating traditional examinations of the use of force.  The U.S. government takes the position that there is an armed conflict between the United States and “Al Qaeda and associated forces,” and the Supreme Court has found that the rules governing non-international armed conflict apply to this conflict.[21]  The Obama administration maintains that the geographic scope of that war is very broad, noting that the Authorization for the Use of Military Force (AUMF) does not contain the geographic limitations of the use of force against those who “planned, authorized, committed, or aided” the 9/11 attacks.[22]

        The notion of a “global” war has been widely rejected by the international community and IHL scholars, but the exact geographic limitations of the conflict remain unclear given that it involves a network of often distinct armed groups operating in multiple countries around the globe.  In the course of its campaign against Al-Qaida, the United States has engaged in targeted killings in Afghanistan, neighboring Pakistan, Yemen, and other places removed from the battlefield as traditionally understood.  If it is determined that any of these attacks occurred outside of armed conflict, it is unlikely that they would be consistent with international legal obligations.  However, if the law of armed conflict does in fact apply, these operations may comply with international law so long as the main tenants of IHL are followed.  As we learn more about the Obama administration’s procedures we will be better able to evaluate whether these attacks comply with the law of armed conflict, and with the upcoming counterterrorism manual we may get the chance to do just that.

* Ellen Policinski is an intern with the International Humanitarian Law Dissemination unit at American Red Cross National Headquarters.  She holds a J.D. from Villanova Law School in Villanova, Pennsylvania and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland.

[1] For a very good summary of what we know about the drone program, both officially and unofficially, see Cara Currier, “Everything We Know So Far About Drone Strikes,” (Propublica, 11 Jan. 2013).  Available at: http://www.propublica.org/article/everything-we-know-so-far-about-drone-strikes.  For a reverse-engineered model of the disposition matrix for U.S. citizens, see Daniel Byman and Benjamin Wittes, “How Obama Decides Your Fate if He Thinks You’re a Terrorist,” (The Atlantic, 3 Jan. 2013).  Available at:
http://www.theatlantic.com/international/archive/2013/01/how-obama-decides-your-fate-if-he-thinks-youre-a-terrorist/266419/
.

[2]  Greg Miller, Ellen Nakashima and Karen DeYoung, “CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say,” (Washington Post, 19 Jan. 2013). Available at:
http://www.washingtonpost.com/world/national-security/cia-drone-strikes-will-get-pass-in-counterterrorism-playbook-officials-say/2013/01/19/ca169a20-618d-11e2-9940-6fc488f3fecd_story.html
.

[3] The UN Special Rapporteur on human rights and counterterrorism us currently investigating drone use by the United States, Israel and others and is expected to report back to the UN General Assembly some time in 2013.  See
http://www.aljazeera.com/news/europe/2013/01/201312411432248495.html
.

[4] Even this debate seems to be about factual circumstances that might make it more difficult to determine who is responsible for an attack than a legal issue, since until machines achieve consciousness there will always be a human being entering the command somewhere in the chain of events. For an in-depth discussion of autonomous unmanned robots see the Human Rights Watch report Losing Humanity: The Case Against Killer Robots, (International Human Rights Clinic, Harvard Law School, 2012). Available at:
http://www.hrw.org/sites/default/files/reports/arms1112ForUpload_0_0.pdf
.  Also look at the back and forth between Tom Malinowski of Human Rights Watch and several of the Lawfare bloggers, especially “Tom Malinowski Ups the Game in Lawfare’s Discussion of Killer Robots,” (Lawfareblog, 14 Jan. 2013) by Benjamin Wittes. Available at:
http://www.lawfareblog.com/2013/01/tom-malinowski-ups-the-game-in-lawfares-discussion-of-killer-robots/
.

[5] Laurie R. Blank, ‘After ‘Top Gun:’ How Drone Strikes Impact the Law of War,’ U. Penn. J. Int’l L, vol. 40 no. 3 p. 677; See, ex. Charles Blanchard, Gen. Counsel, U.S. Air Force, ‘Remarks made at the New America Foundation Conference: Drones, Remote Targeting and the Promise of Law, Panel II,’ 24 Feb. 2011.  Available at:
http://www.ustream.tv/recorded/12909598
; Scott Shane & Thom Shanker, ‘Yemen Strike Reflects U.S. Shift to Drones as Cheaper Tool of War,’ N.Y. Times, (2 Oct. 2011) pp. 1, 14.

[6] For an in-depth look at the requirements for weapons under the law of armed conflict, see the ICRC blog post “How international law adapts to new weapons and technologies of warfare,” by Neil Davidsion (4 Dec. 2012). Available at:
http://intercrossblog.icrc.org/blog/how-international-law-adapts-new-weapons-and-technologies-warfare
.

[7]Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Study on targeted killings, UN Doc. A/HRC/14/24/Add.6, ¶ 1.  Available at:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf
; Nils Melzer, Targeted Killing in International Law (hereinafter Targeted Killing)(Oxford University Press, Oxford 2009) p. 4.

[8] Melzer, supra note 7, at 74.

[9] Alston, supra note 7, at ¶ 33.  The basic legal principal for this evaluation is the prohibition of the arbitrary deprivation of life in ICCPR Art. 6(1), which requires a concrete danger to human life necessitating the use of lethal force.

[10] For a thorough discussion of the U.S. domestic legal issues related to targeted killing, see William C. Banks and Peter Raven-Hansen, “Targeted Killing and Assassination: The U.S. Legal Framework,” 37 University of Richmond Law Review 667. Available at:
https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/BanksRavenHansenLegalFramework.pdf
.  For an in-depth discussion of Constitutional Due Process concerns see Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405 (2009) (contending that CIA drone strikes against non-citizens located outside the United States implicate due process under the U.S. Constitution); and Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing, 2011 UNIV. ILL. L. REV. 101 (2011) (proposing that IHL principles require the CIA to be certain of its targets beyond reasonable doubt and that CIA drone strikes should receive independent review).  Alston, supra note 7, at ¶1.

[11] Additional Protocol I to the Geneva Conventions, Art. 48.

[12] Additional Protocol I to the Geneva Conventions, Art. 51.  In 2009, the ICRC released it’s Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, available here:
https://mail.google.com/mail/u/0/?shva=1#inbox
.  It lists several examples of what can constitute direct participation in hostilities by civilians, including capturing or wounding enemy soldiers; interfering with military deployment through sabotage or road blocks; interfering with military computer networks through online attacks; giving the enemy tactical intelligence for a specific attack; or setting booby-traps.  Indirect participation, like showing general support for the war effort, is not enough.

[13] Additional Protocol I to the Geneva Conventions, Art. 51(5)(b).

[14] Additional Protocol I to the Geneva Conventions, Art. 57.

[15] Geneva Conventions of 1949, Common Article 2.

[16] Geneva Conventions of 1949, Common Article 3; Additional Protocol II to the Geneva Conventions, Art. 1.

[17] ICTY, Prosecutor v. Tadic, (Judgment) IT-94-1-T (7 May 1997) §§ 561-568; ICTY Prosecutor v. Limaj, (Judgment) IT-03-66-T (30 Nov. 2005) §§ 135-170; ICRC Opinion Paper, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” (March 2008).  Available at:
http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf
.

[18] For further discussion the geographic scope of the law of armed conflict see Michael W. Lewis, “Drones and the Boundaries of the Battlefield,” 47 Texas Int’l L. J. 293 (2012).  Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917461
.

[19] Blank, supra note 5.

[20] For example see Lewis, supra note 20, pp. 306-14.

[21] The Supreme Court has held that Common Article 3 of the Geneva Conventions, applicable in both international and non-international conflicts, applies to the conflict against al Qaeda but declined to classify the conflict.  Hamdan v. Rumsfeld, 548 U.S. 557 (2006).  The full text of the decision may be accessed here.

[22] For example, see the speech by Harold Koh, Legal Advisor, U.S. Department of State, ‘ASIL Keynote Address.’  Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917461
.

Posted in Drones, Laws of Armed Conflict | 3 Comments »

2012 Year In Review

January 3, 2013 by ecsigmund

Thank you to all my readers for making the first few months of Humanity in the Midst of War a success.  This blog has been read by nearly 1700 people in 60 countries since its launch in July 2012.  Humanity in the Midst of War is a forum to raise awareness about the principles of international humanitarian law, discuss challenges and developments in this body of law, introduce hot topics, and report on war crimes.  Happy New Years to all and stay tuned for new posts.

The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.  You can view a complete report to see your impact during 2012!

Click here to see the complete report.

Posted in Uncategorized | Leave a Comment »

Arms Trade Treaty – Could it Provide More Ammunition for Government Lawyers?

December 7, 2012 by ecsigmund

          According to the Obama administration “[c]onventional arms transfers are a crucial national security concern for the United States.”[1] The international regulation of conventional weaponry, including small arms, has been linked to US efforts to combat global terrorism[2] and alleviate human suffering in humanitarian crises.[3]   In October 2009, Secretary of State Hillary Clinton expressed the US government’s support for “a strong and robust treaty”[4], however practice has not yet married with promise.  Early this year, the US missed a prime opportunity to take action to stem the proliferation of small arms and other conventional weapons by refusing to join a widely endorse draft of the international Arms Trade Treaty (ATT).  Fortunately, a second chance is now on the horizon.

          Within hours of winning re-election, the Obama administration reaffirmed support for the ATT, sending opponents, worried that a new agreement would enhance the ability of international bodies such as the United Nations to exert control over the sovereign authority of the United States or circumvent constitutionally granted rights, into a tizzy.[5]  Not unexpectedly, the President, who has made foreign policy a hallmark of his terms in office as he strives to rebuild American prestige abroad, answered the call of the international community for renewed American leadership on this issue.  The administration’s commitment to concluding a workable ATT should be commended as a positive step towards strengthening the rule of law internationally by enhancing the regulation of conventional weapons transfers. 

          Currently, no comprehensive global weapons transfer regulations exists, leaving nations free to supply weapons, including; tanks, armoured vehicles, helicopters and aircraft, warships, missiles, and small and light weapons[6], to unsavory governments and armed groups throughout the world with impunity.  Conventional weapons in particular present difficult challenges for the IHL paradigm as they are not in and of themselves illegal.  Undoubtedly, small arms and other conventional weapons have a number of lawful uses including national security and domestic law enforcement, as well as individual self-defense.   The legitimate trade of conventional weapons also has significant economic and commercial benefits.  Notwithstanding these facts, small arms contribute to widespread violations of international humanitarian and human rights laws, placing vulnerable, and otherwise protected populations, at risk of harm. [7]  Small arms are responsible for the deaths of hundreds of thousands of innocent civilians each year.[8]  Small arms trafficking fuels and ultimately prolongs conflict, provides non-state armed groups and cartels with a means to defend their illicit behaviors, restricts the delivery of humanitarian assistance, and inhibits the establishment of sustainable peace long after conflict has ended.   Despite the ouster of Muammar Gaddafi, the security situation in Libya remains chaotic in large part due to the inability of the Libyan government to disarm former rebels, many who now use weapons acquired during the overthrow of the regime to entrench themselves in villages and towns.  The International Committee of the Red Cross has called the establishment of an international arms transfer regulation a “humanitarian imperative.”[9]

          Historically, the US has been at the forefront of strengthening international humanitarian law (IHL).  The Lieber Code, adopted by President Abraham Lincoln during the Civil War, was the first modern codification of IHL principles.  After the Second World War, the United States championed the development of international criminal law, working with France, the UK and the USSR to create the International Military Tribunal at Nuremberg.   In recent times however, the US has been loath to ratify many important international agreements.  During the Clinton administration, Congress repeatedly filibustered attempts to ratify the Comprehensive Nuclear Test Ban Treaty.   During the George W. Bush administration, the United States reneged on the Anti-Ballistic Missile Treaty and withdrew its signature from the Rome Statute despite being instrumental in Statute’s creation.  The United States has failed to ratify Additional Protocols I & II of the Geneva Conventions, the Ottawa Convention prohibiting the use of anti-personnel landmines, and is the only country except Somalia to not ratify the Convention on the Rights of the Child.  Before the pen had even hit the paper, a number of vocal opponents in the Senate threatened to block the Arms Trade Treaty for fear that it would infringe on citizen’s Second Amendment rights to bear arms – something that the ATT simply does not do.  Propagating misinformation, these members of the Senate and certain pro-gun organizations will make the ratification of the ATT difficult, if not impossible in the future.

          On April 16, 2012, just months before diplomats would meet in New York to draft the agreement, Assistant Secretary, Bureau of International Security and Nonproliferation, Thomas Countryman reiterated the Obama administration’s support of the ATT, announcing that the United States would endorse the treaty if it was consistent with four conditions: 1) that the treaty be merely a regulation, not a ban on the international transfer of arms; 2) that nations themselves be left to regulate the implementation of the agreement; 3)that the treaty exclude ammunition as a category of prohibited weapons; and 4) that it not interfere with citizen’s rights to bear arms.[10]

           A reading of the final draft document produced by the July negotiations reveals that the US has greatly influenced the content of the treaty, consistent with the conditions outlined by Assistant Secretary Countryman.   The treaty is not a complete prohibition on the export of weapons, nor does it prohibit the transfer of ammunition.  Instead, the treaty prohibits transfers only when such deliveries would violate UN arms restrictions, such as arms embargo and other international agreements against illicit trafficking, or when the transfer of conventional weapons would be “for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949…”.[11]  Moreover, the treaty places the burden of enforcing its provisions on individual nations, requiring only that State Parties “adopt appropriate national measures and policies as may be necessary” to implement the treaty.[12] In the upcoming negotiations scheduled for March 2013, it is unlikely that the United States will be a major roadblock to the successful adoption of the ATT, although it is foreseeable that the Senate will torpedo ratification.  If this is true, the focus will turn to the other major arms producing nations like the United Kingdom, France, Russia, China, Italy, and Germany[13], most of which have expressed support for the treaty.

           Heralded as a potential game changer, without more substantive enforcement provisions covering a full scope of both weapons and ammunitions, the ATT may be no be than symbolic.  Left to self-regulate, nations will likely maintain status quo arms relationships with even greater legal justification.  Complying with the lenient regulations of the draft treaty may provide legal cover for governments, allowing officials to wipe their hands clean of any criminal liability so long as they follow a form process of conducting national assessments and taking “feasible measures” to avoid unlawful transfers mandated by the treaty.   Although weapons trades may be prohibited in the worst situations, they will be made expressly legal in all other cases.  Diversion and direct transfer of weapons to non-state armed groups or unfriendly nations will surely continue.  The ATT is unquestionably an encouraging development in the international humanitarian and human rights realms, but may ultimately fall well short of minimizing the “humanitarian consequences of the illicit trade in and unregulated trade of conventional arms” that the treaty is designed to address. 

  

 

[1] Secretary of State Hillary Clinton, U.S. Support for the Arms Trade Treaty, October 14, 2009 available at
http://geneva.usmission.gov/2009/10/14/armstradetreaty/
.

[2] Asst. Secretary, Bureau of International Security and Nonproliferation Thomas Countryman, Positions for the United States in the Upcoming Arms Trade Treaty Conference, April 16, 2012 available at  
http://www.state.gov/t/isn/rls/rm/188002.htm
.  See also Under Secretary from Arms Control and International security Ellen Tauscher, Arms Trade Treaty, February 18, 2012 available at
http://www.state.gov/t/us/136849.htm
 (linking the creation of tje ATT to preventing terrorism).  

[3] See Countryman, supra note 2.

[4] Clinton, supra note 1.

[5] Louis Charbonneau, After Obama Win, U.S. Backs New U.N. Arms Treaty Talks, Reuters, Nov. 7, 2012 available at
http://www.reuters.com/article/2012/11/07/us-arms-treaty-un-idUSBRE8A627J20121107
.

[7] International Committee of the Red Cross, Protecting Civlians and Humanitarian Action Through an Effective Arms Trade Treaty, 1, July 2011 available at  
http://www.icrc.org/eng/assets/files/publications/icrc-002-4069.pdf
.

[8] United Nations Sixty-second General Assembly First Committee, Irresponsible Weapons Transfers, Soaring Death Toll from Small Arms, Light Weapons Underscores ‘Pressing Need’ For Arms Trade Treaty, Disarmament Committee Told,  UNGA GA/DIS/3350 October 23, 2007 available at
http://www.un.org/News/Press/docs/2007/gadis3350.doc.htm/
.

[9] International Committee of the Red Cross, Arms Trade Treaty a Humanitarian Imperative, August 8, 2012 available at
http://www.icrc.org/eng/resources/documents/film/2012/arms-trade-treaty-peter-herby-film-2012-07-31.htm
.  

[10] Countryman, supra note 2.

[11] Draft of the Arms Trade Treaty, supra note 6, Art. 3.  

[12] Id.at Art. 11.  

[13] Richard F. Grimmett, Conventional Arms Transfers to Developing Nations, 2002-2009, Congressional Research Service, 32-33, September 10, 2010 available at
http://www.fas.org/sgp/crs/weapons/R41403.pdf
.

Posted in Arms Trade Treaty, Geneva Conventions, ICRC | Leave a Comment »

Border Skirmish, No – “International Armed Conflict”, Yes: The Case of Syria and Turkey

October 6, 2012 by ecsigmund

          Today, the world is watching as the internal conflict in Syria threatens to erupt into a full scale regional war after a border incident between Syrian and Turkish military forces left five Turkish civilians and multiple Syrian soldiers dead. On Wednesday, Syrian military forces fired mortar rounds into Akcakale, a small town inside Turkey’s southern border, killing a woman and her four children.[1] Turkish forces responded with artillery strikes against the Syrian army.  The Turkish Parliament has authorized the use of military force in Syria for a period of one year, raising the specter of all-out war as the Turkish military continued retaliatory strikes for a fourth straight day on Saturday.[2]  These events are sure to send lawyers and adviser, eager to classify the hostilities, scrambling for answers.

          Up to now, military operations have remained limited in scope, with Turkey and Syria exchanging low levels of artillery fire across the border resulting in few casualties.  So does an “international armed conflict”, a legal term of art used by the international community to describe a military conflict between two or more nations, exist between Syria and Turkey and thereby trigger the application of international humanitarian law (IHL)?  The short answer is yes. While a state of war is not recognized between the two nations, all combat operations between Syria and Turkey must comply with IHL.  But how does one reach this conclusion?

          To determine whether acts of violence equate to international armed conflict, practitioners turn to the Geneva Conventions and their commentary for answers.  Common Article 2 of the 1949 Geneva Conventions, regulating the application of international humanitarian law in the context of international hostilities, states that these laws “shall apply to all cases of declared war or any other armed conflict which may arise between two or more [Parties to the Conventions], even if the state of war is not recognized by one of them.”[3]  Unlike situations of non-international armed conflicts – that is internal conflicts (sometimes referred to as “civil wars”) or conflicts between non-state armed groups – international armed conflicts need not reach a minimum threshold of intensity for international humanitarian law to come into effect.  (To read more about non-international armed conflicts and the status of the conflict within Syria, see my previous post classifying the situation here).  Accordingly, any military action taken by one nation against another nation may produce of an international armed conflict even if the belligerent nations do not make a formal declaration of war.

          Some however, have argued that not every use of force brings into application IHL principles per se.  Instead, some violent military exchanges may simply be “‘incidents’ falling short of an armed conflict.”[4] Gary Solis, retired U.S. Marine Crops Lieutenant Colonel and Adjunct Professor at Georgetown University Law Center, posits that the question does not turn on the use of force alone, but instead on the intention of nations involved in the conflict.[5]  According to Solis, if nations intend to engage in an armed conflict, then IHL would apply.  Solis cites a number of historical examples to highlight this point, arguing that in some cases, governments have been unwilling to label military engagements “armed conflicts” or “wars” even if they are protracted and violent.[6]

          Proponents of this view may point to statements made by the Turkish and Syrian leadership to illustrate a lack of intent in the present situation.  For example, after the passage of the authorization for use of force, Turkey’s Deputy Prime Minister Besir Atalay reassured observers that “[t]his is not a war mandate. It is a measure for deterrence”[7].   Moreover, Ibrahim Kalin, a senior adviser to Turkey’s Prime Minister Recep Tayyip Erdogan, announced that “Turkey has no interest in a war with Syria.”[8] Finally, reports indicate that the Syrian government has apologized for the attack and pledged that “the incident will not be repeated.”[9]

          Such a criterion however, blurs the line between jus in bellum (justifications for war) and jus in bello (conduct in war) considerations.  IHL is not concerned about why nations decide to engage in hostilities, but simply the regulation of the means and methods used by nations in hostilities.  The issue of intent and the labels nations choose to describe a military dispute are political, not legal considerations.  There are a number of political reasons why nations may be unwilling to classify a limited military engagement as an “armed conflict” or “war”.  Such definitive labels may compel a nation to sever diplomatic relations with hostile countries.  Although a state of conflict might exist between two countries, they may retain extensive trade relations.  Identifying a dispute as a “war” may thus have far reaching consequences that nations are unwilling to accept.  Moreover, declarations of war create a perception that hostilities will continue for an extended duration and may become more intense, making it increasingly difficult to resolve a dispute without resort to the full exertion of military force.

          Turning again to the black letter law, the commentary to Article 2 of the Geneva Conventions supports the view that any use of force by one nation resulting in the retaliatory use of force by the aggrieved nation, triggers the application of IHL regardless of the designation nations give to a dispute.  In relevant part, the commentary suggests:

It remains to ascertain what is meant by “armed conflict”. The substitution of this much more general expression for the word “war” was deliberate. One may argue almost endlessly about the legal definition of “war”. A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence.   The expression “armed conflict” makes such arguments less easy. Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to human personality is not measured by the number of victims. Nor, incidentally, does the application of the Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances. If there is only a single wounded person as a result of the conflict, the Convention will have been applied as soon as he has been collected and tended, the provisions of Article 12 observed in his case, and his identity notified to the Power on which he depends. All that can be done by anyone: it is merely a case of taking the trouble to save a human life![10]

This commentary makes clear that there is no requisite duration or intensity of hostilities in the context of an international armed conflict.  The military conflict between Syria and Turkey thus falls squarely within the law of armed conflict paradigm.   This conclusion is further evidenced by the authorization for the use of military force and statements made by Prime Minister Erdogan.   Early this morning, the Prime Minister announced that “[Turkish] armed forces on border region (sic) have given the required response in line with the rule of engagements. Targets in Syria, which were detected by radar, were shot by shelling”[11] [emphasis added].  The Prime Minister further noted that “Turkey will never remain unresponsive against these sorts of provocations of Syrian regime within the framework of rules of engagement and international law“[12] [emphasis  added]. These statements reflect the awareness by the Turkish government that the use of military force must comply with the laws of armed conflict.  Therefore, regardless of the political statements made by Turkish or Syrian leadership to the contrary, and notwithstanding the limited scope and duration of the dispute, the situation between Turkey and Syria is an international armed conflict.

[1] Kadir Celikcan, Mortar from Syria Kills Five Family Members in Turkey, Reuters, Oct. 3, 2012 available at
http://www.reuters.com/article/2012/10/03/us-syria-crisis-turkey-mortar-idUSBRE8920VV20121003
.

[2] Bassem Mroue and Suzan Fraser, Turkey and Syria Trade Artillery Fire for 4th Day as Assad Regime Warns it will ‘Crush’ Rebels, Associated Press, Oct. 6, 2012, available at
http://www.theprovince.com/news/Staterun+agency+Turkish+artillery+return+fire+Syria+fourth+after/7353272/story.html
.

[3] Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 1949, Art. 2. (Geneva Convention I).

[4] Gary D. Solis, The Law of Armed Conflict; International Humanitarian Law in War, (Cambridge University Press, 2010), 151-52.

[5] Id.

[6] Id.

[7] Turkey Authorizes Military Operations in Syria, Says No Intention of War, Todays Zaman, Oct. 4, 2012 available at
http://www.todayszaman.com/newsDetail_getNewsById.action?newsId=294241
.

[8] Id.

[9] Id.; see also U.S. Sees Turkish Response to Syria as Appropriate, Proportionate, Reuters, Oct. 4, 2012 available at
http://reuters.com/assets/print?aid=USBRE89316L20121004
.

[10] Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 1949, Commentary, available at 
http://www.icrc.org/ihl.nsf/COM/365-570005?OpenDocument
.

[11] Turkey Strikes Syria Again After Mortar Shells Falls in Southern Turkey, Balita, Oct. 6, 2012 available at
http://balita.ph/2012/10/06/turkey-strikes-syria-again-after-mortar-shell-falls-in-southern-turkey/
.

[12] Id.

Posted in Geneva Conventions, Laws of Armed Conflict, Syria, Turkey | 2 Comments »

Rule #1: The Law of Armed Conflict Applies to Cyber Warfare

October 2, 2012 by ecsigmund

          It is not unforeseen that the United States could suffer a major cyber attack against its military or civilian computer networks in the near future.  In fact, attacks against US companies and government facilities occur with regularity, jeopardizing confidential information, military assets and data systems previously considered secure from infiltration.  Cyber attacks can take many forms, from the transmission of viruses, to the placement of “back-door” bugs into software, to overloading network servers with massive streams of email.

          To prevent and counter attacks to military networks, the government created United States Cyber Command (USCYBERCOM), a division of United States Strategic Command (USSTRATCOM).[1]  Notably, the defense of civilian networks is the responsibility of the Department of Homeland Security.  Earlier this year, the US received a lot of attention after it was revealed that the Obama administration had authorized the use of Stuxnet, a sophisticated computer worm, against an Iranian nuclear facility, neutralizing portions of the facility’s centrifuge system.[2]

          It is no secret that the United States and many other nations are pursuing advanced cyber warfare capabilities to respond to threats in the emerging theater of warfare, cyberspace. The Chinese military has been particularly vocal in their expressions of the significance of cyberspace for military operations.  Last year two officers, writing for the China Youth Daily, stated; “[j]ust as nuclear warfare was the strategic war of the industrial era, cyber-warfare has become the strategic war of the information era, and this has become a form of battle that is massively destructive and concerns the life and death of nations.”[3]  Moreover, the Chinese military has extensively touted the creation of its own elite cyber warfare units which are said to be able to conduct sophisticated cyber operations.[4]

          The International Committee of the Red Cross (ICRC) has steadfastly argued that many of the same principles that regulate battlefield combat also apply in cyberspace.[5]  Despite the ICRC’s insistence that international humanitarian law applies by analogy to cyber warfare, the question of whether laws regulating conduct in cyberspace even existed remains unsettled among nations and legal practitioners, including many in the US government.  It was therefore a pleasant surprise when Harold Koh, Legal Advisor of the Department of State, affirmed that “[c]yberspace is not a ‘law-free’ zone where anyone can conduct hostile activities without rules or restraint” but which, in some circumstances, may be regulated by the law of armed conflict.[6]

          Last month, Koh, speaking at the Cyber Command Inter-Agency Legal Conference, laid out a series of 10 principles that would guide US government policy on cyber activities.  These principles offered insights into how the legal community has sought to address the legality of cyber activities and the many difficult challenges associated with new technologies.  Koh’s acknowledgement represents an important development in American policy, providing some clarification into the legal ramifications of this method of combat.

          But what exactly is cyber warfare?  It should not be shocking to hear that there is no internationally agreed upon definition of cyber warfare.  In the past, the ICRC has utilized the following (simplified) definition: “any hostile measures against an enemy designed ‘to discover, alter, destroy, disrupt or transfer data stored in a computer, manipulated by a computer or transmitted through a computer.’”[7]  Certainly the Geneva Conventions, even in their modern form, do not specifically address the question of cyber warfare.  Despite this omission, the framers of the Geneva Conventions, understanding the evolution of war fighting tactics, weaponry, and technology, had the wisdom to craft a set of documents which would account for the development of new means and methods of warfare and regulate them under the same basic principles recognized as customary practice during times of armed conflict.  Although cyber warfare raises many new legal complexities which will require further consideration, a few issues are settled.

          As is the case with any other application of international humanitarian law, in order for cyber activates to be subject to IHL rules, they must occur during an armed conflict.  For instance, common identity theft or the vigilante hacking of a company’s records would not be regulated by IHL, but would remain criminal acts punishable under a nation’s domestic laws.  Those cyber activities falling under the purview of IHL would need to comply with the four main jus in bello (conduct in war) principles: military necessity, distinction, proportionality, and humanity.  Accordingly, any cyber strike must be done for a militarily necessary reason (i.e. weakening opposing forces), distinguish between civilian and military targets, have a military advantage which outweighs the collateral harm caused to civilian technology or lives, and ensure that the results of the strike do not cause any unnecessary or superfluous suffering to the target.

          To see what the application of IHL might look like in practice, consider these very simple examples.  Cyber attacks targeting exclusively military targets, such as battlefield radar stations or communication facilities would likely be acceptable under IHL.  The neutralization of such facilities would weaken an opponent’s armed forces and would be unlikely to cause civilian harm.  On the other hand, attacks against civilian infrastructure, particularly medical facilities or structures that house “dangerous forces”, such as nuclear power plants or dams, would be illegal.  A cyber strike against an opposing nation’s financial institutions with the intent to spread terror amongst a civilian population would similarly be an impermissible use of force.

          But can cyber attacks themselves be considered a use of force which would trigger the application of IHL and a nation’s right to self-defense?  Yes, according to Koh, who expressed the United States’ view that a cyber attack “may in certain circumstances constitute a use of force within the meaning of Article 2(4) of the UN Charter.”[8]  While each situation is fact dependent, “cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force”[9], noted Koh.  Should the United States be the victim of such an attack, it would be justified under international law to respond in self-defense.[10] Critically, this response need not be a reciprocal cyber attack, but may instead be a kinetic attack.[11]

          As Koh eloquently expressed in his address, this seems like “common sense”[12].  A cyber attack which may have the same devastating effects as a kinetic weapon need not be held to a different legal standard.  Some, like USCYBERCOM chief of staff Rear Adm. Margaret Klein, have already shot back, expressing her view that there is “a lack of clear legal guidance” about what laws apply electronic warfare.[13]  While many difficult legal questions remain to be answered[14], it would be not only counterproductive, but destructive to discard this universal body of law designed to protect humanity from the devastations of war.  The regulation of cyber activities is simply the next evolution in this essential body of law.

          In the end, the application of international humanitarian law to cyber activates will reduce harm to innocent civilians, as well as damage to civilian infrastructure and the environment.  Moving forward, more work needs to be done to create consensus on the challenging legal issues presented by cyber security and offensive cyber operations.  This will take time, but Koh’s principles do put the United States in a position to lead this conversation internationally and to shape IHL norms in the future.

 A full reproduction of Koh’s statement can be found at Opinio Juris.

[1] United States Strategic Command, US Cyber Command, Dec. 2011, available at
http://www.stratcom.mil/fCyber_Command
.

[2] David E. Sanger, Obama Order Sped Up Wave of Cyber Attacks Against Iran, New York Times, June 1, 2012 available at
http://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?pagewanted=all&_r=0
.

[3] Chris Buckley, Update-1 – China PLA Officers Call Internet Key Battleground, Reuters, June 3, 2011 available at
http://www.reuters.com/article/2011/06/03/china-internet-google-idUSL3E7H30J620110603
.

[4] Id.

[5] See International Committee of the Red Cross, Cyber Warfare, Oct. 10, 2010 available at
http://www.icrc.org/eng/war-and-law/conduct-hostilities/information-warfare/overview-information-warfare.htm
; See also International Committee of the Red Cross, No Legal Vacuum in Cyber Space, Aug. 16, 2011 available at
http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm
.

[6] Chris Borgen, Harold Koh on International Law in Cyberspace, Opinio Juris, September 19, 2012 available at
http://opiniojuris.org/2012/09/19/harold-koh-on-international-law-in-cyberspace/
(reproducing speech delivered by Koh to U.S. Cyber Command Inter-Agency Legal Conference, September 18, 2012).

[7] Cyber Warfare, supra note 5.

[8] Opinio Juris, supra note 6.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13] Aram Rouston, US: Laws of War Apply to Cyber Attacks, Army Times, September 18, 2012 available at
http://www.armytimes.com/news/2012/09/dn-laws-of-war-apply-cyber-attacks-091812/
.

[14] Challenges, among others, include proper attribution of attacks, determinations of when cyber activities qualify as a use of force, and the interconnectivity of civilian and military systems.

Posted in Cyber Warfare, Geneva Conventions, ICRC, Laws of Armed Conflict | 5 Comments »

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