Humanitarian actors' engagement with accountability mechanisms in situations of armed conflict : workshop report

The Individualisation of War Project explores the tensions arising from the increased prominence of the individual in the theory and practice of armed conflict133. One manifestation of this process of individualisation are the endeavours to enhance accountability for violations of international humanitarian law (IHL) and international human rights law (IHRL). These include the establishment of international and national tribunals and non‑judicial mechanisms such as commissions of inquiry, and the imposition of targeted sanctions. These are important measures for promoting compliance with the law and, consequently, enhancing the protection of civilians, but their implementation can give rise to tensions with humanitarian actors’ activities to provide protection and assistance, often to the same civilians. Humanitarians frequently have valuable first‑hand information on violations or are in direct contact with affected communities. However, the risk exists that if they share this information with accountability mechanisms – or are suspected of doing so – this may undermine their operations (and those of others) and put their staff and beneficiaries at risk. This is not a new tension, but it has become more prominent following the establishment of a number of international criminal tribunals in the 1990s.The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) / ERC Grant Agreement No 340956 - IOW - The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict

Arbitrary Withholding of Consent to Humanitarian Relief Operations in Armed Conflict

This article examines the requirement under international humanitarian law (IHL) that consent to humanitarian relief operations must not be arbitrarily withheld. It begins with a brief outline of the rules of IHL regulating humanitarian assistance in armed conflict. The article then considers the origin of the rule prohibiting arbitrary withholding of consent to humanitarian relief operations before proceeding to set out the circumstances when consent will be considered to have been withheld arbitrarily under international law. It proposes three tests for arbitrariness in this context, and also examines how international human rights regulates humanitarian assistance in armed conflict

Assessing the African Union Concerns about Article 16 of the Rome State of the International Criminal Court

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world

When should the ICC prosecutor defer investigations or prosecutions in situations of active armed conflict in favor of peace negotiations?

A key reform that has the potential to make the international criminal justice project stronger,more efficient and more effective is the consideration of peace negotiations as an additional factor in the Prosecutor’s decision of whether or not to pursue an investigation or prosecution ‘in the interests of justice’, in accordance with Article 53(1)(c) and 2(c) of the Rome Statute. At present, this would require a revision of the Policy Papers issued on this question, in particular, the 2013 Policy Paper on Preliminary Examinations and the 2007 Policy Paper on the Interests of Justice. Significantly, such reform has the potential to prevent or alleviate, at least in part, some of the most pressing problems encountered by the ICC Office of the Prosecutor (OTP), namely, the lack of state cooperation, limited budget, and lengthy or complex proceedings.The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) / ERC Grant Agreement No 340956 - IOW - The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict

Drawing the Cyber Baseline: The Applicability of Existing International Law to the Governance of Information and Communication Technologies

"Cyberspace" is often treated as a new domain of State activity in international legal discourse. This has led to the assumption that for international law to apply to cyber operations carried out by States or non-State actors, "cyber-specific" State practice and opinio juris must be demonstrated. This article challenges that assumption on five different bases. First, it argues that rules of general international law are generally applicable to all domains, areas, or types of State activity. In their interpretation and application to purported new domains, limitations to their scope of application cannot be presumed. Second, this article demonstrates that the concept of "domain" is not aimed at excluding certain domains from international law’s scope of application. Third, in any event, cyberspace is not a domain or a space, in the way that land, air, sea, or outer space are. Rather, it is a combination of multilayered information and communications technologies operating across different domains. Fourth, and relatedly, international law is technology-neutral, in that it applies to all technology unless stated otherwise. Fifth, the framing of certain international legal rules as policy recommendations cannot displace existing international law. On those bases, we conclude that existing international law applies as a whole and by default to States’ use of information and communications technologies

The international law framework regulating the use of armed drones

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike

The immunity of heads of states of nonparties in the early years of the ICC

Published: 30 July 2018More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya's head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union, but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrest and their inviolability when abroad.The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) / ERC Grant Agreement No 340956 - IOW - The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict

Immunities of Heads of States & The International Criminal Court

This talk considered the recent decision by the Appeals Chamber of the International Criminal Court, in the case against former Sudanese President Omar Al Bashir, that heads of states and other senior state officials are not immune, under customary international law, from the jurisdiction of international tribunals. It was argued that the finding is not only wrong as a matter of law but failed to properly understand the legal basis on which the Court exercises its criminal jurisdiction. There was a clearer and more persuasive basis on which to hold that the former President Bashir was not immune from arrest and surrender to the Court. This talk explored the implications of the ICC\u27s ruling for the Court as an international institution

The Oxford guidance on the law relating to humanitarian relief operations in situations of armed conflict : an introduction

Published on 27 Oct 2016In many, if not most, armed conflicts, far more deaths occur as a result of the humanitarian crisis created by the conflict rather than from hostilities or the use of force. In addition to those who die as a result of a lack of food, water, access to medical care or adequate sanitation, untold suffering is caused in conflicts across the globe to millions of other civilians. However, in many recent conflicts humanitarian actors have faced serious challenges in delivering much -needed relief supplies and services to civilians in need. Humanitarian access has become a central challenge to the protection of civilians in armed conflict. Belligerants often impede the delivery of much needed humanitarian relief supplies exacerbating hunger, disease and want. The United Nations Secretary -General, in his recent reports to the Security Council on the Protection of Civilians, has identified improving access for humanitarian operation as one of the five “core challenges” to enhancing the protection of civilians in armed conflict.The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) / ERC Grant Agreement No 340956 - IOW - The Individualisation of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict