Category Archives: IHL

Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment

[I’m delighted to welcome Catherine Harwood again with her thoughts on the recent Lubanga Judgment’s take on active participation in hostilities]

  • Introduction

On 1 December 2014, the Appeals Chamber of the International Criminal Court dismissed Mr Lubanga’s appeals against conviction and sentence. Mr Lubanga had been convicted of the war crimes of enlisting and conscripting of children under the age of fifteen years and “using them to participate actively in hostilities” under Article 8(2)(e)(vii) of the Rome Statute, and was sentenced to 14 years imprisonment.

Mr Lubanga’s grounds of appeal included that the Trial Chamber had misconstrued the concept of ‘active participation in hostilities’ in Article 8(2)(e)(vii). In a previous post I discussed his appeal and supported the distinction made by the Chamber between ‘active participation’ in Article 8(2)(e)(vii) and other manifestations of ‘active’ or ‘direct’ participation in hostilities in international humanitarian law (IHL). I cautioned against the adoption of a unitary concept, writing that it was preferable to retain this distinction in light of the drafting history and purpose of Article 8(2)(e)(vii). I argued in favour of a bifurcated approach “in order to discourage the use of children in roles that place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.”

This contribution follows up on that post, after the delivery of the Appeal Judgment. In upholding the  conviction and sentence, the Appeals Chamber endorsed the distinction between ‘active participation’ in Article 8(2)(e)(vii) and the notion of ‘direct participation in hostilities’. However, it concluded that the Trial Chamber had erred in its interpretation of ‘active participation’. This contribution argues that despite some elements of ambiguity, the Appeals Chamber’s ‘link to combat’ approach is workable and appropriately connected to the underlying protective purpose of the prohibition. Continue reading

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

The Israeli intervention: more legal questions on the Application of IHL and Aggression

The story on everybody’s mind since Monday is of course the Israeli’s ultimately bloody take over of a Turkish ship in international waters of the coast of Israel. Beyond the complex political situation, which I will try to avoid considering here (although I do find Turkey’s official support of the activists ironic given its own track-record in terms of human rights and refusal to acknowledge Kurdish pleas for independence, or at least autonomy), this situation raises a incredibly large array of legal questions, some of which are being dealt with already.
There is the question of whether this is an act of piracy, which I think is unlikely given the definition given in UNCLOS, as is developed here. The question of the legality of Israel’s blockade of Gaza has also given rise to a dense debate on Opinio Juris and the issue of whether the ICC can and should exercise jurisdiction for these events has been considered by Professor Schabas.

I’d like to briefly raise some additional issues that are puzzling me, and in fact relate to some of the previous arguments made.

For one, everybody is assuming the application of IHL to the situation, due to the conflict in Israel, or evaluating its application in light of the conflict between Israel and Hamas. Professor Schabas does this in his link by saying that the it would constitute a war crime because the situation in the occupied territories and Gaza in particular is an armed conflict. I find this quite unpersuasive, or at least to be explained. The facts are that Israel boarded a ship sailing under a Turkish flag in high seas. There is of course a political link with what is going on in Gaza, but is there a legal one? I would argue that there isn’t and that the fact that there is an armed conflict in the occupied territories is irrelevant.One rather needs to evaluate the existence of a conflict between Israel and Turkey in order to apply IHL to the situation. This is a strong methodological disagreement, but has few practical consequences. Indeed, it seems generally accepted (see the ICRC opinion paper) that a single event of military nature can trigger the application of IHL. In any case, given Tukey’s jurisdiction over the boat, the act can definitely prosecuted under national criminal law, and it is in this context that the claims to individual self-defense must be assessed.

Which leads to my second point, which is interesting in light of the ongoing debates at the ICC Review Conference in Kampala, is whether the Israeli intervention constitutes an act of aggression against Turkey. I’d say it probably constitutes an unauthorized use of force under the UN Charter, but does it rise to the level of Aggression? After a perfunctory reading of Resolution 3314 of the Assembly General on the definition of aggression, there are at least two categories listed in Article 3 of the Resolution that could seem to apply on the face of it:

“Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;”

This would apply assuming that a ship sailing under a Turkish flag, over which Turkey has exclusive jurisdiction, is considered as Turkish territory for the purposes of establishing an act of Aggression. I’m not familiar enough with the Law of the Sea to say for sure, but it would make sense. If such a qualification did apply, Israel’s international responsibility could be engaged.

In relation to the this point, what is, if any, Turkey’s responsibility under international law? As the country of nationality of the ship, it must be responsible for the actions of the ship to some extent. One can imagine that Israel could claim that Turkey failed in its international obligations by supporting the breaching by a ship carrying its flag of the territorial sovereignty of another State, despite that State’s systematic opposition to such entering in its territorial waters (this of course raises questions on the “excuses” that Turkey could put forward in terms of the provision of humanitarian aid in a situation of armed conflict and the correlative claims from Israel that the political claims associated to the endeavor would deny neutral status).