Tag Archive | "the Geneva Conventions"

Critical Analysis: Protecting refugees in the midst of war

SYRIA-CONFLICT-PALESTINIAN-YARMUK

Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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soldiers blinded in WWI

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 2 of 3)

This is the second blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  The first blog post described key features of the Chemical Weapons Convention.  This second blog post compares the Chemical Weapons Convention to other sources of international law that address chemical weapons.  The third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.

 

Part II: International Law Addressing Chemical Weapons

This post analyzes the sources of international law—other than the Chemical Weapons Convention (“CWC”)—that address chemical weapons, and then explains how the CWC provides the strongest protections against chemical weapons.[1]  Both  customary international law and international treaty law provide clear prohibitions on using chemical weapons in international war, and under some interpretations, customary international law prohibits the use of chemical weapons in non-international war.  However, in contrast to the CWC, neither customary international law, nor international treaty law, address the production, stockpiling, or possession of chemical weapons.  First, this post examines the multilateral treaties addressing chemical weapons that predate the CWC.  Next, this post discusses customary international law about chemical weapons.  Finally, this post compares the CWC to the other sources of international law addressing chemical weapons.

 

A. Multilateral Treaties Addressing Chemical Weapons

chlorine attack in wwi

Aerial photograph of one of the first chlorine attacks on the Western Front in World War I (www.cbwinfo.com)

France and Germany reached the first international agreement on chemical warfare in 1675.[2]  Subsequently, on July 29, 1899, the Hague Declaration Concerning Asphyxiating Gases was created during the First Hague Peace Conference of 1899.  The Hague Declaration expressly prohibited the use of projectiles to disperse asphyxiating gases, but it only applied in instances of war between two or more signatories, which included thirty-two countries.  The second Hague Peace Conference, in 1907, expanded the prohibition on chemical weapons by forbidding all signatory countries from “employ[ing] poison or poisoned weapons.”  Unfortunately, despite these attempts to prevent chemical weapons use, major violations occurred during World War I.  Germany used multiple forms of chemical warfare to fight Allied forces.  Germany’s use of phosgene and chlorine gas during World War I changed the “lethality of chemical warfare forever.”[3]

The 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the “Geneva Protocol”) prohibited “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices.”[4]  The Geneva Protocol developed during a conference, overseen by the League of Nations, in Geneva from 4 May to 17 June 1925.  The use of chemical weapons during World War I motivated the Geneva Protocol.  The Geneva Protocol restated the prohibitions in the Hague agreements and expanded the prohibition to all use of chemical weapons in international war.  The Geneva Protocol only applies to international war because the parties only “agree to be bound as between themselves”; thus, the prohibition only applies to war between two or more signatory states.[5]  Over the years, General Assembly of the United Nations (“U.N.”) adopted resolutions to show the continued legitimacy of the Geneva Convention,[6] and the Geneva Protocol continues to be a binding source of international law.  The early treaties used broad language that covered both chemical and biological weapons, but later treaties distinguished between the two.[7]  The Geneva Protocol was the strongest multilateral-international-treaty protection against chemical weapons until the adoption of the CWC in the 1990s.

 

B. Customary International Law Addressing Chemical Weapons

The International Court of Justice Statute treats customary international law as a binding source of international law.[8]  Customary international law, under most definitions, contains two elements: (1) state practice and (2) opinio jurisState practice exists if states consistently and uniformly conform to the same actions.  State practice “does not mean that the practice must be ‘universally followed;’ rather ‘it should reflect wide acceptance among the states particularly involved in the relevant activity.’”[9]  Opinio juris exists if states engage in the relevant state practice “because they believe it is required by international law, not merely because . . .  they think it is a good idea, or politically useful, or otherwise desirable.”[10]  Despite generally agreement about these basic definitions, customary international law “remains an enigma” because of disagreement about some particulars, such as how to identify it.  Establishing the existence or scope of customary international law is difficult because broad customs and practices create it, rather than from “any single, definitive, readily-identifiable source.”[11]

In order to identify and clarify customary international law, the International Committee for the Red Cross (“ICRC”) published a study in 2005 called Customary International Humanitarian Law, which identified 161 rules of customary international law.  Those rules are now available here, in the ICRC’s online database.  Despite criticism from the U.S. government about how the ICRC conducted the study, these rules provide some guidance about what constitutes customary international law.[12]  ICRC Rule 74 addresses the topic of chemical weapons.  According Rule 74, “[t]he use of chemical weapons is prohibited,” and according to Rule 74’s official summary, “State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.”

soldiers blinded in WWI

Soldiers blinded by gas lined up outside a first-aid post near Bethune, France during WWI (International Committee of the Red Cross)

While treaties are generally only binding on the parties to the treaty, treaty rules can become binding on non-parties “as a customary rule of international law.”[13]  Analysts disagree about when a widely adopted treaty becomes binding on third parties, but any U.N. resolution recognizing a treaty as binding on third parties is influential.  For example, in 1969, the U.N. adopted a resolution asserting that the widespread accession to the Geneva Protocol made the use of chemical weapons in international warfare contrary to customary international law.  Specifically, the U.N. resolution “Declares as contrary to the generally recognized rules of international law, as embodied in the [Geneva Protocol], the use in international armed conflicts” of chemical weapons.[14]  The ICRC cited to this U.N. resolution to support Rule 74 as a statement of existing customary international law.  Despite the general consensus that customary international law prohibits using chemical weapons in international wars, scholars disagree about whether Rule 74 accurately represents customary international law regarding the claimed prohibition on the use of chemical weapons in domestic armed conflict.[15]

Essential international organizations, such as the U.N., consider all use of chemical weapons a violation of international law.  The U.N. relies on both the Geneva Protocol and “other relevant rules of customary international law” to enable investigations of both domestic and international use of chemical weapons because the Geneva Protocol only applies to international war.  The U.N. is empowered to investigate allegations of the use chemical weapons by any U.N. member under the Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons.[16]  The enabling General Assembly Resolution refers to both the Geneva Protocol and “other relevant rules of customary international law,” which enables investigations into alleged use of chemical weapons by any U.N. member-state in international war or domestic war.  This framework provides an enforcement regime for the customary international law identified by the ICRC in Rule 74.  As described in the first post and illustrated in the third post of this series, the OPCW also lends its expertise to the U.N. if such an investigation occurs in a country that is not a CWC State Party.

 

C. Comparison of the CWC and Other Sources of International Law

Past treaties, including the Geneva Protocol, provide fewer protections than the CWC.  None of the early treaties addressed the production, stockpiling, and possession of chemical weapons, which are essential for preventing chemical weapons use.  Unlike the CWC, the “Geneva Protocol does not… prohibit the development, production or possession of chemical weapons”; instead, the Geneva Protocol only prohibits the use of chemical weapons in international war.  Similarly, the Geneva Protocol provides insufficient protection because compliance is voluntary, there is no mechanism to verify compliance, and it, “implicitly, does not cover internal or civil conflicts.”  This is not to disparage the protections of the Geneva Protocol; rather, this is to emphasize the innovations of the CWC relative to earlier protections.  The differences between the two treaties are understandable: Geneva Protocol takes up no more than two typed pages, while the official copy of the CWC is one-hundred eighty-one pages and took more than a decade to negotiate.  Without the earlier treaties—and their shortcomings—negotiators would have been less likely to develop the complex structure of the CWC.  Overall, the more detailed and comprehensive structure of the CWC provides better protections than previous chemical weapons treaties.  Similarly, existing customary international law does not provide the same protections as the CWC.  Irrespective of whether the prohibition on using chemical weapons applies in both international and non-international war, no one claims that customary international law prevents countries from stockpiling, producing, or transferring chemical weapons.[17]

 

D. Conclusion

In sum, using chemical weapons in international war violates international law, and under some interpretations, using chemical weapons in non-international war violates international law.  Thus, both international treaty law and customary international law  authorize the investigation and prosecution of actual use of chemical weapons.  However, these international investigations and prosecutions occur only after the damage is done and the victims are hurt.  And sometimes they do not happen at all.  By not addressing more than the use of chemical weapons, most sources of international law provide no preventative protections against the horrors of chemical weapons.

While no legal structure can be perfect, the CWC definitely provides better protections than any existing alternative.  The main advancement of the CWC is the ability to ensure that countries do not reach the point of use, by enabling intervention upon mere possession, development, or production of chemical weapons or their precursors.  The proactive CWC requires the destruction of existing chemical weapons stockpiles and prevents the transfer of those chemical weapons to others.  The CWC prevents the use of chemical weapons by eliminating access to chemical weapons.  Events in the Syrian Arab Republic illustrate the difference between the protections of the CWC and other sources of international law.  There, despite knowledge of Syria’s chemical weapons stockpile, the U.N. only stepped in to investigate after reports of actual chemical weapons use surfaced because Syria had not adopted the CWC.  The third and final blog post in this series analyzes those events in detail.

 

Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy

 

[1] For a detailed explanation of the CWC, see the first blog post in this three part series.

[2] Megan Eshbaugh, Note, The Chemical Weapons Convention: With Every Step Forward, We Take Two Steps Back, 18 Ariz. J. Int’l & Comp. L. 209, 216 (2001).

[3] James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention, 31 Mich. J. Int’l L. 475, 481-82 (2010).

[4] Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65.

[5] Id.

[6] See, e.g., Measures to Uphold the Authority of the 1925 Geneva Protocol, G.A. Res. 65/51, U.N. Doc. A/RES/65/51 (Dec. 8, 2010).

[7] Early treaties addressed chemical and biological weapons together, but international law has treated them separately, at least since the adoption of the 1972 Biological Weapons Convention.  Biological weapons are weaponized bacteria or viruses.  Chemical weapons are weaponized synthetic substances.  The first post of this series explains the difference between chemical weapons and biological weapons in more detail.

[8] Statute of the International Court of Justice, art. 38(1)(b), June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993.

[9] Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (quoting Restatement (Third) of Foreign Relations Law, § 102, cmt. b (1987)).

[10] Id.

[11] Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1015 (7th Cir. 2011).

[12] See generally Noura Erakat, The U.S. v. the Red Cross: Customary International Humanitarian Law and Universal Jurisdiction, 41 Denv. J. Int’l L. & Pol’y 225, 227-29 (2013) (describing criticisms from the U.S. government about the methodological approach used by the ICRC during the study).

[13] Vienna Convention on the Law of Treaties, May 23, 1969, art. 38, 1155 U.N.T.S. 331, 8 I.L.M. 679.

[14] U.N. G.A. Res. 2603-A (16 December 1969) U.N. Doc A/RES/2603 (XXIV) A.

[15] Compare Carsten Stahn, Syria and the Semantics of Intervention, Aggression and Punishment: On ‘Red Lines’ and ‘Blurred Lines’, 11 J. Int’l Crim. Just. 955, 958 (2013) (relying on Rule 74 as accurate customary international law), with Jillian Blake & Aqsa Mahmud, A Legal ‘Red Line’?: Syria and the Use of Chemical Weapons in Civil Conflict, 61 UCLA L. Rev. Disc. 244, 255-56 (2013) (treating Rule 74 as inaccurate and arguing that customary international law only prohibits using chemical weapons in international conflicts).

[16] G.A. Res. 42/37, C, U.N. Doc. A/RES/42/37 C (Nov. 30, 1987).

[17] See Stutts v. De Dietrich Group, 2006 U.S. Dist. LEXIS 47638, at *39 (E.D.N.Y. June 30, 2006) (noting absence of “prohibition on the development, manufacture and stockpiling of chemical weapons” from customary international law).

 

 

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The London Blitz

The Agitator: IHL permits limited reprisal attacks against civilians

An oft-stated axiom of international humanitarian law is that civilians can never be targeted in armed conflict, enshrined by rules 48, 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions.  The International Committee for the Red Cross study of customary law affirms that under customary law civilians can not be targeted.

The London Blitz

The London Blitz

However, the United Kingdom issued a “reprisal” reservation to the basic AP1 rules when it signed the convention in 1998, a reservation clearly based on its experience with the German bombing of London in World War II.   During the so-called “Blitz”, Germany indiscriminately bombed London for 76 straight nights (known as the Blitz).  Prior to the war, PM Chamberlain stated that aerial bombing of residential areas was clearly illegal, but once the Blitz started and with Germany posing an existential threat, the UK war department explicitly chose to target German residential areas rather than military targets.  The UK was clearly on the horns of a dilemma: its RAF bombers were suffering catastrophic losses when they attempted to bomb well-defended military targets in Germany.    The only viable way for RAF bombers to bomb Germany targets was to focus on civilian infrastructure in residential areas that was less heavily defended.   Of course, that meant killing lots of German civilians.

The Blitz dilemma was the basis of the 1998 reservation which reserved Britain’s limited right to target enemy civilian targets if UK citizens were being attacked.  The reservation states the UK must issue a formal warning to the adverse party first, and civilian-directed force will only commence if the warning is disregarded.  Also, the force used must be proportional to the violence to which it responds.  Finally, the right of reprisal ends once the adversary ceases its attacks.

So what do we make of the reprisal reservation?  The UK’s experience cannot be summarily dismissed, but what does it mean for humanitarian law?  Can it be argued that the right of reprisal exists in IHL?  Are there examples of state practice?  I.e., is it an argument that it was implicitly invoked by Israel in Operation Cast Lead or Sri Lanka in its war against the Tamils?  Both states were facing enemies that targeted civilians.  Lastly, what level of violence does IHL require a state to endure when facing an enemy that targets civilians?

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University of Denver Sturm College of Law

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