Monthly Archives: July 2014

Guest Post: Groundhog Day: Accusations of Bias in the Human Rights Council Inquiry on Gaza

By Catherine Harwood, Leiden University

The Human Rights Council (HRC) resolved on 23 July 2014 to establish an international commission of inquiry to investigate alleged violations of international humanitarian law (IHL) and human rights in the Occupied Palestinian Territory (OPT). Unsurprisingly, this resolution has fuelled the raging political storm surrounding the conflict in Gaza. The political divide is evident in the results of the vote: 27 states in favour, 1 state against, and 17 states abstaining. The main reason put forward by states that did not support the resolution was that it was biased against Israel. But do these concerns hold water?

The United States was alone in voting against the resolution, explaining that it was a “biased and political instrument” that would “create another one-sided mechanism targeting Israel”. This statement referred to a controversial HRC fact-finding mission into Israel’s Operation Cast Lead in 2009. Other states also abstained out of concerns of bias in the resolution. The European Union explained that its members abstained as the text was “unbalanced, inaccurate, and prejudges the outcome of the investigation by making legal statements”, and “fails to condemn explicitly the indiscriminate firing of rockets into Israeli civilian areas as well as to recognize Israel’s legitimate right to defend itself.” The EU does not however consider that the commission holds a one-sided mandate. Some sections of the media take a different view, with headlines such as “UN to investigate Israel’s Gaza offensive” and “UN votes to investigate Israel, not Hamas”.

Are these claims of bias justified? Continue reading

Guest Post: A Matter of Distinction: ‘active’ and ‘direct’ participation in hostilities and the war crime of using child soldiers

By Catherine Harwood, Leiden University

The Rome Statute prohibits the use of children under fifteen years to ‘participate actively in hostilities’ in international and non-international armed conflicts [arts. 8(2)(b)(xxvi) and 8(2)(e)(vii)]. Trial judgments in the Lubanga and Katanga cases interpreted ‘active participation’ broadly to include both ‘direct’ and ‘indirect’ participation in hostilities. Recently, Pre-Trial Chamber II committed Bosco Ntaganda to trial for charges including the use of child soldiers, and implicitly followed this approach. However, Mr. Lubanga is currently appealing his conviction, including on the basis that ‘active’ participation should be limited to ‘direct’ participation in hostilities.

This contribution argues that in light of the drafting history of the Rome Statute, the current interpretation of ‘active participation’ should be sustained. ‘Indirect’ participation which exposes children to real danger should be prohibited, without requiring a nexus between the activity and loss of civilian protection. This would preserve the intended ‘buffer zone’ of protection, so that children’s participation in risky combat-related activities is prohibited, even when they retain civilian protection.

In practice, the Rome Statute’s semantic inconsistencies, inherited from international humanitarian law (IHL), could be ameliorated by using ‘direct participation’ to denote the general limit of civilian protection, and ‘active participation’ to refer to the use of child soldiers. This approach would also encourage greater consistency between the English and French versions of the Statute.

  • Active and direct participation under international humanitarian law

In IHL, parties to an armed conflict must distinguish between civilians and military objectives, and attacks directed at civilians are prohibited. Civilians lose this protection when they take a ‘direct part in hostilities’ [Additional Protocol I, art. 51(3) and Additional Protocol II, art. 13(3)]. To make matters more complicated, the limit to civilian protection in Common Article 3 to the Geneva Conventions is ‘active’ participation. However, only the English texts contain this irregularity. The term participent directement (direct participation) is used consistently in the French texts, and ‘active participation’ is not recognised.  Nicole Urban suggests that this indicates “a uniform meaning across IHL”, and that ‘active’ and ‘direct’ are synonyms.

‘Direct participation’ is not defined in conventional IHL. The ICRC’s Interpretive Guidance provides a narrow definition which comprises a certain threshold of harm, direct causation of harm and a belligerent nexus [p. 93]. Direct participation generally encompasses activities likely to cause harm to the adversary’s military capacity or operations.

IHL also prohibits the participation of children in hostilities. AP I, art. 77(2) requires that children do not take a ‘direct’ part in hostilities. AP II does not contain any threshold: art. 4(3)(c) simply states that children must not ‘take part’ in hostilities. These rules are identical in English and French texts. The ICRC Customary Rules also articulate that customary international law simply prohibits children to “take part in hostilities”.

Why then does the Rome Statute specifically prohibit ‘active’ participation of children in hostilities, in both French and English? To understand this peculiar phrase it is necessary to revisit the statutory drafting history. Continue reading

David Scheffer proposes (legally) unsatisfactory solution for justice in Syria

In a Opinion Piece for the LA Times, David Scheffer, seasoned diplomat, esteemed and influential expert in International Justice issues, makes his own proposal to push forward for justice in Syria. Essentially, he proposes a treaty between the UN and a third state (i.e, not Syria):

The third option, proposed here, would require a treaty between the United Nations (acting by General Assembly vote) and a government committed to justice for the victims of these two conflicts. Neighborhood candidates such as Turkey, Jordan and even Lebanon or European nations such as France and Italy come to mind.


There also is precedent for such action. Three tribunals were created to bring to justice perpetrators of heinous crimes committed in Sierra Leone, Lebanon and Cambodia.

The Special Court for Sierra Leone, which recently fulfilled its mandate to prosecute crimes committed during its civil war in the 1990s, and the Special Tribunal for Lebanon in The Hague, focusing on the assassination of Lebanese Prime Minister Rafik Hariri in 2005, are international courts created under negotiated treaties between the United Nations and Sierra Leone and Lebanon, respectively.

The problem is that the three examples put forward by Scheffer are in fact very different in terms of their legal nature and sources of their authority. Continue reading