First, the treaty law of IAC is far more detailed and robust than the treaty law of NIAC. Most importantly, the Geneva Conventions and Additional Protocol I are far more protective of both civilians and combatants than either Common Article 3 or (with respect to certain internal conflicts) Additional Protocol II. Second, the customary law of IAC remains distinct from the customary law of NIAC, though the gap has certainly narrowed since the 1990s. For its part, the ICRC identifies seventeen customary rules applicable in IAC but not in NIAC and five applicable in NIAC but not in IAC. “States that take a more conservative approach to customary international law may conclude that the gap between IAC and NIAC remains even wider than the ICRC maintains.” 30 Third, grave breaches of IAC treaty law trigger obligatory universal jurisdiction, meaning that all states have a legal duty to either prosecute or extradite perpetrators for prosecution elsewhere. 31 Finally, the Statute of the International Criminal Court recognizes thirty-four war crimes in IAC but only nineteen war crimes in NIAC. 32 Notably, the Statute recognizes clear violation of the
answer to every situation involving children and armedconflict. However, the international community owes children every protection that can apply to the severity of their situations. Scholarly writings, judicial opinions, and other forms of primary and secondary soft law are the appropriate methods of assistance to help children in these unique and precarious situations (although, perhaps not in that specific order) short of direct humanitarian intervention. This is the proper time to formally recognize this group and afford the support for future deterrence, diplomatic negotiation, and guidance for criminal proceedings. The laws regarding the composition of a group within the meaning of genocide have been shown to directly parallel traits exhibited by children. As such, a group under the definition of genocide should include children.
The faithful construction of mediating doctrines requires great care and invites close scrutiny, but there is no alternative. Borderline cases are not simply a theoretical problem. Borderline cases are a practical problem that combatants confront on the battlefield where the stakes of both action and inaction are high, and the need to decide is unavoidable. When we contem- plate a particular borderline case as an academic exercise, we need not con- clude that a person is taking a direct part in hostilities, or that they are not. We may simply reserve judgment. But when soldiers confront borderline cases, they must decide to attack, or to refrain from attack. They have no third option. They must choose, and if the legal rule does not provide clear guidance, we must construct a mediating doctrine that will serve them better. While mediating doctrines are not legal rules, strictly speaking, we may be legally obligated to construct and apply them. After all, States are legally obligated to respect and to ensure respect for the law of armedconflict in all circumstances, clear cases and borderline cases alike. 21 If States cannot en-
Women have played a crucial role in a conflict scenario. Sometimes as participant and most of the time as victims, women are the sole bearers of the devastating effects of a conflict situation. Before the occurrence of World War I, there wasn’t any requirement to create special laws to protect the women sect as their participation was in majority during wars. Post World War 1, a need for protection of women, was felt and this resulted into creation of separate laws for the protection of women in armedconflict under International Humanitarian laws. This did not mean that women lacked any protection earlier. Since the creation of the International humanitarian law, the women had the same general legal protection as men. If they were wounded, they were protected by the provisions of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field; if they became prisoners of war, they benefited from the Regulations annexed to the Hague Conventions of 1899 and 1907 on the Laws and Customs of War on Land.
The fundamental principle underlying the gradual development of these standards and rules alongside the evolution of automation technolo- gies, however, should be that what matters is ever greater compliance with the core obligations of the law of armedconflict: necessity, distinction, proportionality and humanity. Whether the actor on the battlefield is a “who” or a “what” is not truly the issue, but rather how well that actor per- forms according to the law of armedconflict. Debate over standards or rules for automated or autonomous systems should remain scrupulously neutral as between human or machine, and should affirmatively reject any a priori preference for human over machine. Even seemingly indisputable calls for a first principle of “meaningful human control” mistake the issue, which is lessening the harms of armedconflict within the law by the means that are the most effective. The principle of humanity is fundamental, but it refers, not to some idea that humans must operate weapons, but instead to the promotion of means or methods of warfare that best protect humanity within the lawful bounds of war, irrespective of whether the means to that end is human or machine or some combination of the two.
such a standard would ignore the realities of combat, in which attackers operate in the fog of war. A more manageable standard that comports with the notion of feasibility asks whether a reasonable warfighter, having ex- hausted all reasonably available means of verification in light of the prevail- ing circumstances, would launch the attack. This standard allows attackers to balance the potential military advantage against both the likely collateral damage and any degree of doubt as to the objective’s status as a lawful tar- get, just as the law of armedconflict allows military advantage to offset col- lateral damage more generally. Obviously, precision capabilities play a key role in this process, especially ISR assets that allow targets to be located, monitored and identified. While these capabilities have immense military utility, they can also be constraining. If a “reasonable warfighter in the same or similar circumstances” would consider their use both helpful in
One of the concerns raised with regard to warnings is that after advising civil- ians to evacuate a certain area, military forces might consider anyone who did not evacuate as forfeiting civilian status and becoming a lawful attack objective. This, of course, is not the case and civilians who have not left the area must be taken into account in the proportionality analysis. Nevertheless, successful warnings that lead to most civilians leaving a combat area do allow military forces more freedom of action in the knowledge that less civilian collateral damage is expected. In today’s asymmetrical battlefield, when fighters intermix with civilians and civilian locali- ties are used as bases of operation, causing civilians to evacuate an area is one of the useful means available of minimizing civilian casualties. In that regard, warn- ings have become an important tool in promoting the protection of civilians on the one hand, while enhancing military freedom of action on the other. This dem- onstrates that the rules of the law of armedconflict are not necessarily a zero-sum game and warnings, as well as other precautionary measures, can be beneficial for all sides involved.
54. The first paragraph of Article 49 states: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive” (emphasis added). This appears to be a total prohibition. This conclusion is reinforced in the official com- mentary to the Fourth Geneva Convention: “The prohibition is absolute and allows of no excep- tions . . . .” ICRC C OMMENTARY , supra note 29, at 279. However, persons may leave voluntarily or may be excluded. Exclusions occur most prominently in the case of infiltrators, such as per- sons who had entered Iraq unlawfully to take part in a jihad against coalition forces. “Infiltrators are simply not shielded by the Convention as protected persons.” D INSTEIN , supra note 4, at 167. Exclusion could also be argued for persons such as the Palestinian terrorist Abu Abbas, who hi- jacked the cruise ship Achille Lauro and murdered US citizen Leon Klinghoffer in 1985. Abbas had been given sanctuary by Saddam Hussein and was living in Baghdad when captured by US forces. Had he not died of a heart attack while in custody in Iraq, he should have been amenable to removal from Iraq to face trial in the United States. A strong argument can be made that Arti- cle 49 could not have been intended to insulate criminals from the process of law in the manner of an extradition, especially where the crime occurred outside of the occupied territory and be- fore the occupation. For a discussion of deportations and exclusions generally and the Israeli practice specifically, see id. at 160–68.
spective State obligations under international human rights law. This will produce significantly disparate effects in terms of sanctions, e.g., in the case of States who are parties to the European Convention on Human Rights as compared to that of those States who have obligations under the International Covenant on Civil and Political Rights alone. This is largely due to the enforcement mechanisms in place in relation to each of these treaty structures. While this difference may well have an impact on the formal aspects of enforcement (e.g., court rulings and pecuniary awards against States in the case of the former), one cannot avoid the implications for States that flow from judgments of courts like the European Court of Human Rights and Inter-American Court of Human Rights, or bodies such as the United Nations Human Rights Council. Such pronouncements, influencing as they do in the age of mass communication the court of public opinion, may well have a deter- mining effect on the preparedness of States to employ autonomous systems ahead of the creation of any corresponding permissive environment, whether this be po- litical or social.
The Goldstone Report, issued in September 2009, is the product of the United Nations Fact-Finding Mission on the Gaza Conflict, established, interestingly enough, by the President of the UN Human Rights Council in April 2009. Its man- date was “to investigate all violations of international human rights law and inter- national humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period [between] December 27, 2008 and January 18, 2009, whether before, during or after.” 2 The military operations being referenced were, of course, those of the Israeli
acts of violence or acts of a similar nature which would result to mass arrests, the use of police and sometimes the armed forces to restore order. The above lists do not fall within the ambit of IHL as they are not considered as armed conflicts in the real sense of the word and this has raised serious challenges to members of the armed forces who have been drafted to the affected states to protect the lives of Nigerians in what seem to be a peace keeping operations. The Joint Task Force (JTF) in Nigeria (operating mostly in the Northern part of the country) have been trained in the military to observe the rules of IHL in combat and may not be versatile in the field of Human rights law and this is a great challenge. Another challenge that is encountered is the determination of the point at which a mere situation of violence becomes an armedconflict so that IHL will apply and to understand and appreciate the law governing the use of force and that protecting the victims of such armedconflict 6 . Some Nigerians are of the opinion that the
81. See, e.g., DOJ White Paper, supra note 1, at 3 (“The United States is currently in a non-international armedconflict with al-Qaeda and its associated forces.”); Memorandum from the Secretary of Defense to the Secretaries of the Military Departments et al. on the Application of Common Article 3 of the Geneva Conventions to the Treatment of De- tainees in the Department of Defense 1 (July 7, 2006), available at http://www.defense.gov/pubs/pdfs/DepSecDef%20memo%20on%20common%20artic le%203.pdf (“The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda.”); Human Rights Council, United States of America, National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1, ¶ 84, U.N. Doc. A/HRC/WG.6/9/USA/1 (Aug. 23, 2010). It should be noted that a number of official statements demonstrate that the United States views itself as being in an armedconflict with Al Qaeda without specifying whether that conflict is an IAC or NIAC. See, e.g., Koh, supra note 17, at 14; John Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at Harvard Law School: Strengthening Our Security by Adher- ing to Our Values (Sept. 16, 2011), available at http://www.whitehouse.gov/the-press- office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our- values-an [hereinafter Brennan Speech at Harvard]; T HE W HITE H OUSE , I NTERNATIONAL S TRATEGY FOR C YBERSPACE : P ROSPERITY , S ECURITY , AND O PENNESS IN A N ETWORKED W ORLD 2, 3 (2011), available at http://www.whitehouse.gov/sites/default/files/ counter- terrorism_strategy.pdf [hereinafter N ATIONAL S TRATEGY FOR C OUNTERTERRORISM ]. See also John Bellinger, ArmedConflict with Al Qaeda?, O PINIO J URIS (Jan. 15, 2007), http://opiniojuris.org /2007/01/15/armed-conflict-with-al-qaida/.