TARGETING NARCOINSURGENTS IN AFGHANISTAN: THE LIMITS OF INTERNATIONAL HUMANITARIAN LAW

In October 2008, upon the request of the Afghan government, NATO Defence Ministers meeting in Budapest agreed that ‘ISAF [International Security Assistance Force] can act in concert with the Afghans against facilities and facilitators supporting the insurgency, in the context of counternarcotics, subject to the authorization of respective nations’. In explaining the scope of the contemplated actions, NATO officials noted that drug producers and traffickers who aided the ongoing insurgency could now be attacked. NATO's Supreme Allied Commander Europe (SACEUR), US General Bantz Craddock, justified the policy on the ground that the Taliban reaped over $100 million annually from the drug trade. US Secretary of Defence Robert Gates likewise defended the decision as sound strategy.It soon became clear that other key figures were less enamoured with the new approach, or the subsequent guidance issued to effectuate it. On 5 January 2009, Craddock instructed General Egon Ramms, the German Commander of Allied Joint Force Command Brunssum, which overseas NATO operations in Afghanistan, ‘to attack directly drug producers and facilities throughout Afghanistan’. The threshold for engagement seemed to require little connection to the insurgency. According to SACEUR's guidance, it was ‘no longer necessary to produce intelligence or other evidence that each particular drug trafficker or narcotics facility in Afghanistan meets the criteria of being a military objective’ because the alliance ‘has decided that (drug traffickers and narcotics facilities) are inextricably linked to the Opposing Military Forces, and thus may be attacked’.

TERRITORY, BOUNDARIES AND THE LAW OF ARMED CONFLICT

Israel's military operation in the Gaza Strip from 27 December 2008 until 18 January 2009 raised a host of legal questions on status and the conduct of hostilities, many of which have been subjected to intense scrutiny. But perhaps the two most troubling questions that remain unresolved concern the appropriate legal regime that governed the conflict and the geographical reach of the law. Was this an international armed conflict? If so, who were the ‘contracting parties’ and what was the territorial scope of the conflict? Alternatively, was the armed conflict one between a state, Israel, and a non-state actor, Hamas, and thus subject to the rules that apply in non-international armed conflict? This latter position jars with our intuition not least because the codified law assumes non-international armed conflict takes placewithinthe territory of a contracting state. The disquiet is apparent in the Israeli Supreme Court judgment of 2009,Physicians for Human Rights v. Prime Minister, in which the Court had to determine the legal regime governing the armed conflict between Israel and ‘the Hamas organization’. Describing the normative ‘arrangements’ as ‘complex’, it noted that ‘the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties’.

SOME COMMENTS AND OBSERVATIONS ON THE MONTREUX DOCUMENT

Growing concerns that PMSCs were operating in a legal vacuum led to increasing calls for further clarification on the role of such entities in conflict zones and to mounting pressure to develop a regulative framework under international law. In September 2008, 17 States endorsed the Montreux Document, an initiative sponsored by the Swiss government and the ICRC. The Montreux Document is a non-binding document aimed at identifying and reasserting the most relevant international legal obligations that govern the conduct of PMSCs during armed conflicts. It also provides for a set of guidelines on ‘good practices’ for States in regard to the operation of PMSCs in armed conflicts. Although it does not create any legal obligations, and only recalls existing ones, it is the first intergovernmental document to address international obligations in respect to the activities of PMSCs. It can thus be seen as a first step toward the establishment of a better regulative framework of PMSCs' activities in conflict zones. This article provides an overview of the process that led to the endorsement of this document and an analysis of its content. It also addresses some of the questions left unanswered by the Montreux Document.

CONTROLLING THE RECOURSE TO WAR BY MODIFYING JUS IN BELLO

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.

THE RENDULIC ‘RULE’: MILITARY NECESSITY, COMMANDER'S KNOWLEDGE, AND METHODS OF WARFARE

Unlike most other areas of international law which address only State responsibilities, the law of war assigns to individuals the responsibility to observe positive rules. The threat of being charged with a war crime, with all the attached opprobrium, is the chief means by which observance of the law of war is ensured. No one could rightly argue that war crimes prosecutions, even if they were always effectively prosecuted – and they are not – ensure perfect compliance with the law, but they are the best mechanism devised to date. Although war crimes trials has earlier antecedents, the prosecutions following World War II marked the beginning of the modern war crimes model.World War II prosecutions were notable for the scale of atrocities alleged in the various indictments. Once the crimes were defined, and the architecture put in place to establish the various tribunals, proof of wrongdoing was rarely in doubt. There were expected legal issues to be sure: claims ofex post factocrimes, immunities for acts of state, and the defense of superior orders, among many others; but in general prosecutors fully expected convictions across the board. And many convictions did result, though there were several exceptions that resulted in full or partial acquittals.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW: CONFERENCE REPORT

On 24–25 September 2009, the Faculty of Laws, University College London and the International Humanitarian Law Project, London School of Economics held a conference in cooperation with the International Committee of the Red Cross entitled ‘The European Convention on Human Rights and International Humanitarian Law’.Armed conflict situations (including belligerent occupations) have increasingly become the subject of litigation before national courts and the European Court of Human Rights (ECtHR). As a result, there is now a substantial body of case-law on the application of the European Convention on Human Rights (ECHR) in armed conflict situations. The ECtHR has had to engage with questions involving situations of armed conflict and occupation since the Turkish intervention in Northern Cyprus in the 1970s. The increasing resort to the ECHR by claimants whose rights have allegedly been violated in contemporary armed conflicts and occupations, raise new and complex questions of law. To what extent does the ECHR, as a human rights legal regime, apply in such situations, especially when alleged violations have been perpetrated abroad? How does the ECHR interact with international humanitarian law (IHL)?