ALMA Newsletter - March 2019
Welcome to ALMA's celebratory newsletter edition that marks ALMA's 9th anniversary. In order to commemorate this significant date, we have asked a few members, colleagues and experts to share with us some of the major IHL-related developments from the last 9 years. You can read their contributions below. In addition you can also find the usual information about recent publications and upcoming events.
This festive edition is also the ideal opportunity to acknowledge the true life force of ALMA - its members and volunteers. In the last 9 years we have had numerous volunteers, and it is them who we owe the greatest gratitude, for enabling ALMA to continue with our projects, newsletter, social media presence etc. On that note, we also like to invite you to join us, and take part in our 10th and exciting year of activity.
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9 Years of IHL Developments - Experts' Recap
In order to best mark 9 years of activity in the field of IHL, we asked some of ALMAs' members, colleagues and IHL experts to share with us their thoughts on crucial, curious or otherwise significant IHL-related developments from the last 9 years that they most personally connect to.
The Mavi Marmara / Yfat Barak-Cheney, ALMA member
"When I was woken up by an urgent message, asking me to come into the office on May 31st, 2010, little did I know that the next year of my work will revolve so much around the "Mavi Marmara", the Gaza Flotilla incident that occurred that morning. This was my first "lifecycle" of an IHL event - from the discussions and preparations before, to the ongoing and unclear developments of the first few hours and days, and the aftermath of Commissions of Inquiry and criminal investigations. It continues to mark its influence also on the implementation of IHL in Israel and beyond until today".
The Exiting Growth of Clinical Education in IHL / Prof. Laurie Blank, Emory Law School
"Over the past 9 years, we have seen an amazing explosion of interest in experiential education in IHL. When ALMA was founded in 2010, clinical IHL work was brand new and only possible at one or two institutions worldwide. Today, there is a phenomenal energy and enthusiasm for experiential learning in IHL, with more than seven IHL Clinics operating around the world and several more in development – as well as the now well-established International Humanitarian Law Clinic Exchange Program among the IHL Clinics at Emory University, Leiden University, the Interdisciplinary Center-Herzliya, and Roma Tré University.
As the founder of the first IHL Clinic (Emory), watching this growth has been incredibly inspiring for me — students around the world are excited and highly motivated not only to learn IHL, but to learn through immediate engagement with cutting-edge and challenging topics and by providing assistance to organizations around the world working to enhance compliance with the law, improve protection of civilians, and maximize the role and effectiveness of IHL. Let’s keep it going!"
The Turkel Report / Shani Dann, ALMA member
"An important process that has occurred during the last 9 years is the publication and implementation of the Turkel report. The first part of the Report dealt with various aspects of the actions taken by Israel regarding the Flotilla incident of May 2010, in the context of the blockade on Gaza Strip. The second part of the Report examined the question of whether the Israeli investigative process of complaints and allegations raised with regard to violations of the law of armed conflict is consistent with the Israel's obligations under international law. The report included recommendations to adopt domestic legislation that will define offences of war crimes.
Although this suggested legislation has not been adopted yet, the acknowledgment of its importance, and the understanding of the need to inject it in domestic legislation, not only strengthens Israel’s compliance with international humanitarian law but also emphasises its commitment to International Humanitarian Law and to the prevention of future violations under International Humanitarian and Criminal Law".
Humanitarian Exemption / Emanuela-Chiara Gillard, senior research fellow (Chatham House)
"It was in 2010, nine years ago, when in the face of famine in parts of southern Somalia under al-Shabaab control, the Security Council adopted an exemption to the sanction regime against him. The Security Council clarifying that the prohibition on providing funds or other assets to Al-Shabbab did not extend to support that might be provided in the course of humanitarian operations. This was a response to the kind of difficulties that may arise when civilians in need are under the control of an organized armed group, designated under sanctions or counterterrorism measures that prohibit funds and other assets to be provided directly or indirectly to such groups.
The prohibitions can potentially cover incidental payments that humanitarian actors must make to be able to operate, or provide relief supplies. The relief efforts might be then diverted to such groups or otherwise benefit them. In the most extreme cases, even provisions of medical care are diverted to members of the groups.
At present, civilians in need find themselves under the control of designated groups in numerous situations, including Al-Qaeda in the Arabian Peninsula in Yemen, Boko Haram in Nigeria, what remains of ISIL in Syria, and Hamas in Gaza. However, nine years after this issue came to the fore, Somalia remains the sole UN sanction regime to include an exemption for humanitarian action. There has been some progress in including exemptions or safeguards for humanitarian action in EU measures and in national counter-terrorism regimes, but these remain the exception rather than the norm. Ensuring such exemptions are included systematically in all relevant instruments, is a ‘crucial and significant development’ that has not happened in the last nine years".
Law v. Power / Yael Vias Gvirsman, ALMA member
"Thinking back at the past 9 years of IHL and the enforcement of sanctions against grave breaches of IHL, the general theme of Law Versus Power comes to mind as the most significant legal development.
I know we still have a long way to go, however recent decisions at the International Criminal Court represent major steps forward in view of an international rule of law where 'Great Powers' are also accountable, ending impunity for war crimes in IACs and in NIACs.
For illustration see 13 May 2014 ICC Prosecutor decision re-opening a preliminary examination into alleged responsibility of UK officials for war crimes in Iraq (systematic abuse of detainees); 27 January 2016 Pre-Trial Decision authorizing the Prosecutor to open an investigation into alleged crimes committed by all parties to the armed conflict in Georgia, including Russian armed forces; and the most recent pending 20 November 2017 ICC Prosecutor request for authorization to open an investigation in Afghanistan, including the alleged conduct of US CIA agents and treatment of Al Quaeda/Taliban suspects in Afghanistan and other countries.
In sum, three of the five permanent, veto Security Council Members's citizens' conduct are now under the ICC review. This creates an interesting equation in the Law Versus Power paradigm where Law and Justice are gaining in importance in a world still governed by Power".
The Conviction of Charles Taylor / Dr. Sigall Horovitz, ALMA member
"One of the most important IHL events in recent years, is the conviction of Charles McArthur Ghankay Taylor, the former President of Liberia. Taylor was convicted for war crimes and crimes against humanity committed in the Sierra Leone, through his influence on local rebels with the intention of gaining profit from Sierra Leone's ongoing supply of diamonds. Beyond the justice made both with thousands of direct victims and all citizens of Sierra Leone, the conviction has international significance, since it strengthened and confirmed the norm that leaders, even without physical presence at the scenes of the crimes, may be found guilty of serious international crimes. Taylor was convicted in 2012 by the Special Tribunal for Sierra Leone, which was established in 2002 by the UN and the Sierra Leone government. The establishment of the tribunal is an important IHL event of its own, being the first court established on the basis of a bilateral treaty between the UN and a State.
On a personal note, as part of the prosecution team in the Taylor case, I felt a great sense of mission and am proud of the team's achievements under the leadership of the Chief Prosecutor of the Court, Ms. Brenda Hollis".
Renewed Approach to Belligerent Occupation / Michal Luft, Adv
"In 2016, the ICRC published an updated interpretation to the 70 years-old Geneva Conventions, where it formally adopted a new approach regarding the applicability of the law of belligerent occupation. According to this new approach, occupation (and the laws governing it), might still remain in force even when foreign forces withdraw from the occupied territory, to the extent that such forces retain key elements of authority or other important governmental functions. In such situations, “the law of occupation might continue to apply within the territorial and functional limits of those competences”. This is a major development within IHL in general and of the law of belligerent occupation in particular, as it has practical implications on foreign-controlled territories around the globe. Specifically in our region, the application of such an approach to Israel's ongoing control over the Gaza Strip, implies that Israel continues to bear legal duties stemming from the laws of belligerent occupation, vis-à-vis Gaza residents".
The Establishment of the Law of Armed Conflict Unit / Col. (Res.) Noam Neumann, Israeli Ministry of Justice
"In 2013, after almost two years of intensive work, an independent public commission headed by former Supreme Court Justice Jacob Turkel (hereinafter: the Turkel Commission), issued a voluminous report in which they reviewed the standards under international law for the examination and investigation of alleged violations of the Law of Armed Conflict. In its report, the Commission concluded that Israel's mechanisms for examining and investigating complaints and claims of violations of the rules of the law of armed conflict generally comply with its obligations under international law, while at the same time made 18 recommendations for further improving the Israeli system. At the time, although the subject had increasingly become a topic of interest for international law scholars and practitioners alike, comprehensive research and writing were relatively scarce, and as a result this report become an important milestone in the field.
One of the recommendations made by the Turkel Commission was to establish a unit within the Ministry of Justice that would specialize in the Law of Armed Conflict, which would be able to advise the Attorney General on such matters. Such a unit has been formally established in September 2017. The unit has since provided professional legal advice to public sector bodies, on implementing aspects of the Law of Armed Conflict, including Jus ad Bellum, Jus in Bello and the Law of Belligerent Occupation, arising in decision-making and policy-shaping processes, legal procedures and legislative initiatives".
The AI Revolution / Dr. Daphné Richemond-Barak, Head of International Humanitarian Law Desk (ICT)
"On September 1, 2017, Vladimir Putin declared that "[w]hoever becomes the leader in [Artificial Intelligence] will become the ruler of the world." By doing so, he signaled a major change in how states wage war – with potentially major repercussions for IHL.
This change includes, but is certainly not limited to, the use of autonomous weapons (which have already received considerable attention under IHL). Not. unlike the potential ban of autonomous weapons, banning the use of cognitive technologies in military and security affairs seems utterly unrealistic at this stage. The challenge lies instead in identifying the broader implications that AI will have on the conduct of war and, in turn, on the regulation of war. The role of international lawyers will thus be to contend with the legal, ethical, and policy issues arising out of this AI revolution".
The Publication of the Tallinn Manual / Ido Rosenzweig, ALMA Chairman
"One of the most interesting events for me, was the publication of the Tallinn Manual on the international law applicable to cyber warfare, in April 2013. Not often we get see an IHL publication that has such an immediate and extensive impact on general discourse and practice.
Although the Tallinn Manual is a non-binding document that is based on the work and discussions of a group of legal scholars and practitioners, it was promptly settled as the anchor of discourse in any discussion related to cyber warfare. Indeed, it quickly became a key IHL publication in general, dealing with questions of IHL applicability to cyber warfare, including attribution, distinction, collateral damage, etc.
Though the Tallinn Manual has received its share of criticism, regardless if you agree with it or not, it is clear that any discussion or publication on cyber warfare, must refer to it".
The Conflict in Syria / (Col.) Pnina Sharvit Baruch, senior research associate at INSS
"The most significant and major impact on IHL bearing event is the conflict in Syria. This conflict has produced many challenges, first and foremost on strategic and operational levels, but also in the legal arena. This particular conflict has challenged concepts of Jus-ad-Bellum in the face of an urgent need to intervene in Syria and save the civilians who found themselves under vicious attacks from both ISIS and other armed groups, and from the Syrian government itself. The gap between the 'right and moral' thing to do and the legal debate on the manner, exemplified once again the need to reconsider JAB standards.
This conflict also illustrated, once more, the need to have a comprehensive framework of rules applicable to armed conflicts against non-state actors that goes beyond the limited rules envisioned originally for civil wars.
The fact that many states got involved in this conflict also ignited the debates surrounding IHL and its application among the States involved, thus contributing to the development of IHL derived from practitioners and not merely by academics".
Call for Proposals and Opportunities
1) INSS "Law and National Security" program calls upon students to join as interns: The program deals with a variety of legal aspects relating to national security by applying them to current events, with the aim of influencing policy-making. The program is headed by Col. (res.) Pnina Sharvit Baruch, former head of the International Law Department of the Military Advocate General's Office and a lecturer on international law at Tel Aviv University. Qualified students are welcome to send CV and legal writing sample to firstname.lastname@example.org.
2) Historical perspectives on medical care in armed conflict, ICRC Law & Policy: The ICRC is interested in a multidisciplinary approach to this issue; submissions from academics or policy researchers with expertise in law, history, military strategy, social science or other relevant fields are welcome. Authors are invited to send short research proposals (about 2 pages) to the Washington Delegation of the ICRC at email@example.com for review and feedback at any time. Completed policy papers should be submitted by 31 April 2019.
3) Call for Papers: Protection of the Environment in relation to Armed Conflict- Beyond the ILC: The Goettingen Journal of International Law (GoJIL) has published a call for papers for a Special Issue. The objective of the special issue is to review the work of the International Law Commission (ILC) on the topic up until now but also looking beyond the Commission’s work to search for legal avenues on how to consolidate the protection of the environment. The GoJIL, a student-run law journal, is based on a double-blind peer review process and is available open access. The deadline for the submission of abstracts is 1 June 2019 and final paper must be submitted no later than 1 August 2019.
IHL Articles and Media
1) Daphne Eviatar, Breaking the Silence on Civilian Casualties from U.S. Air Strikes in Somalia (Just Security)
2) Thomas Van Poecke, The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences (EJIL:Talk)
3) Pnina Baruch, The Violent Events along the Gaza-Israel Border: The Report of the Commission of Inquiry of the Human Rights Council (INSS)
4) Srinivas Burra, Legal Implications of the Recent India-Pakistan Military Standoff (Opinio Juris)
5) Charlie Dunlap, Did Pakistan’s photos/videos violate the Geneva Conventions…or ease a crisis? (Lawfire)
6) Aakash Chandran, International Armed Conflict And Pakistan's Obligations Under Geneva Convention (LiveLaw)
7) Katharine Fortin, Geneva Academy Briefing: State Responsibility for Human Rights Violations Committed in the State’s Territory by Armed Non-State Actors (armedgroups-internationallaw)
8) Betcy Jose and Alessa Sänger, What’s a War Crime Gotta Do To Get Some Attention? (DuckofMinerva)
Upcoming IHL Events
1) Short Course: The Law of Non-International Armed Conflicts: This short course discusses the protection offered by IHL in NIACs and examines why and to what extent IHL of IACs and IHL of NIACs are different or similar, as well as where the rules applicable to NIACs can be found. It also addresses some problems and controversies specific to IHL of NIACs, including the difficulty to ensure the respect of IHL by armed non-state actors. Geneva Academy of International Humanitarian and Human Rights Law, Geneva, Switzerland, 15-29 March 2019.
2) Competition on the Law of Armed Conflict and IHL for Military Academies: The Academies Competition provides teams of 3 Officer Cadets from the top military academies from around the world with an early appreciation of the critical importance of humanitarian law in multi-national military operations. International Institute of Humanitarian Law, Sanremo, Italy, 25-29 March 2019.
3) 31st - 32nd Edition of the Jean-Pictet Competition on International Humanitarian Law: Committee for the Jean-Pictet Competition, Obernai, France, 30 March - 6 April 2019 (Francophone and Anglophone).
4) Proportionality and the Individualisation of War: This seminar deals with the question of how to think about the conditions for the determinacy of the concept and whether in fact it functions less to restrain, and more to permit, the use of force. University of Westminster, London, United Kingdom. 4 April 2019.
5) Legal Resilience in an Era of Hybrid Threats: The aim of the event is to explore the legal challenges presented by hybrid threats and to develop the notion of legal resilience as a framework for countering these challenges more effectively. The conference brings together representatives from academia, government and international organisations. The event is held in collaboration with the European Centre of Excellence for Countering Hybrid Threats, the Geneva Centre for Security Policy and the Lieber Institute of the United States Military Academy. University of Exeter, Exeter, United Kingdom, 8-10 April 2019.
6) International Military Course on the Law of Armed Conflict: The general aim of the course is to provide military officers, including operators and military lawyers, as well as civilians, with the opportunity to learn how to apply the principles and rules of IHL and the Law of Armed Conflict. International Institute of Humanitarian Law, Sanremo, Italy. 8-19 April 2019.
7) ICSRIHL 2019 : International Conference on Substantive Rights and International Humanitarian Law: The Conference aims to bring together leading academic scientists, researchers and research scholars to exchange and share their experiences and research results on all aspects of Substantive Rights and International Humanitarian Law. It also provides a premier interdisciplinary platform for researchers, practitioners and educators to present and discuss the most recent innovations, trends, and concerns as well as practical challenges encountered and solutions adopted in the fields of Substantive Rights and International Humanitarian Law. The International Research Conference, Paris, France. 18-19 April.
8) International Humanitarian Law, Human Rights Law on Torture and Space Law: The Symposium shall entail panel discussions on specific issues relating to International Humanitarian Law and the Human Rights Law on Torture, to be concluded by a Plenary Session on Space Law, in collaboration with Indian Space Research Organisation (ISRO). Indian Society of International Law and Indian Journal of Law and International Affairs, New Delhi, India. 13-14 April 2019.