Am I my brother's keeper?

(No sign of Muammar. An oversight.)

Cain, Abel and Muammar Gaddafi are perhaps not the most obvious of bedfellows. But Cain's riposte to God after killing the mysterious and unexplained death of Abel (a matter that remains sub judice)* is as pertinent now as it was to biblical author: what responsibility do we carry singly and jointly for the well-being of our fellow human beings? Relatedly, how does this operate in a world in which Article 2(7) of the UN Charter restates the most ancient tenet of international law - non-interference in the internal affairs of another sovereign state? In short, are we the keepers of our Libyan sisters and brothers as they face the threat of annihilation by their own government in a (final) spasm of murderous repression? 

Let's look at the notion of non-intervention, at the doctrine of humanitarian intervention and the notion of an international "Responsibility to Protect", known as R2P in txtspk.

Non-Intervention - the international community's prime directive?

If non-intervention is a cardinal rule, then Cain is right and as long as it happens next door, it's no concern of mine: I am implacably not my brother's keeper.

Some countries argue that non-intervention is the cornerstone of the international system, and that this has been the case for centuries. This is, of course, palpably risible nonsense. Advocates of non-intervention generally mean that they are in favour of non-intervention in their affairs; it is therefore no surprise that the strongest and most persistent advocates of the non-interventionist mantra include PR China, North Korea, Saudi Arabia, Cuba, Sudan and Zimbabwe, all of which have human rights records that they would wish to protect from outside scrutiny or interference. 

It is also important to note both that history is based around countries intervening in each others' internal affairs, and that intervention spans a much wider ambit than simply the use of force - sanctions, consumer boycotts, trade agreements reflect power realities and are used by stronger states to coerce weaker ones. Try asking an Irish or Greek politician about the amount of non-intervention that they’ve had to accept in their internal affairs in the form of a financial bailout – and no shots were fired. In other words, intervention in the internal affairs of other states is the norm, and the non-interventionist language in Article 2(7) is the aberration. 

 (Do we protect them? If not you, who? If not now, when?)

Humanitarian Intervention

Back in the early 1970s the International Law Association (ILA) created a framework for humanitarian intervention** which was picked up over the next decade led by Fernando Teson, an Argentine lawyer proposed along with some American lawyers a doctrine of humanitarian intervention. As a legal proposition, humanitarian intervention proposes an exception to the ban on the use of force in Article 2(4) of the UN Charter in cases of genocide, crimes against humanity or massive human rights abuses where there is no option due to time or because the Security Council is deadlocked. 

All good. (Except that Teson and his proto-neo-conservative American chums decided that not being a democracy was a gross violation of human rights, and then used this to propound the deeply problematic notion of "pro-democratic wars"; Teson's supporters tended to find themselves on the hawkish/paranoid Republican right, some of whom went so far as to suggest a NATO invasion of central Europe to drive out the Soviet totalitarians. No prizes from your blogmaster for guessing the likely outcome of that particular policy choice if you'd tried to implement it.)

In one of those strange historical oddities,*** Teson's champions today are on the left, under the banner of solidarism. Nicholas Wheeler's "Saving Strangers" is the classic exposition of the need for a framework for where there should be an exception to the UN Charter rules on non-intervention and bars on the use of force. As Wheeler shows, the three classic Cold War interventions that could have been presented as humanitarian interventions (India in East Pakistan/Bangladeshi War of Independence, 1971; Tanzania in Uganda, 1978; Vietnam in Kampuchea, 1979) never claimed any humanitarian rationale at the time. Kosovo in 1999 is a partial example of humanitarian intervention, but some structural elements were not in accord with the ILA's 1974 blueprint. Similarly, UK/US/FR extending UNSCR 688 to (and arguably beyond) breaking point for Operation Provide Comfort with the Northern and Southern No-Fly Zones over Iraq.

(Op Northern Watch - aka heroic Jags over northern Iraq. Ahh....)

So under humanitarian intervention, you can present yourself as your sister's keeper, but you don't always get a chance to do anything about it - and if you do want to do something about it, then you need to make sure you work through the ILA check list, and crucially, you need to make explicit that it is a humanitarian intervention at the time that you do it. 

Bottom line: humanitarian intervention provides an optional route for States that want to intervene - if the world is indifferent, humanitarian intervention doctrine does not require the community of nations to do anything about massive human rights violations. Just ask Jim Hacker - he explains it far more eloquently than me; the Russians were indeed too strong...

Responsibility to Protect (R to P, R2P)

The 2005 UN World Summit outcomes document specifically recognised the need for a responsibility for collective action to stop "genocide, war crimes, ethnic cleansing and crimes against humanity" - which are all defined in the ICC Rome Statute. This is the genesis for Responsibility to Protect - a key turning point in international law. 

Paragraph 139 of the 2005 World Summit outcomes states in part:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 

Which is a real drafting hodgepodge, betraying the lack of unanimity in the international community. The answer appears to be that there is no unilateral right of intervention, the Security Council should do the right thing but there may be a regional organisation get out clause. Or not. 

So R2P is not clear yet: NGOs are pushing for clarity and for the world to move towards a Responsibility to Protect. Let's see how we're getting on. We need to speak clearly that the international community does have responsibilities and Libyan-style repression is a crime, pure and simple.

* This is a legal blog. You get legal jokes - bear with me, some of them are even funny.

**The ILA's Third Interim Report of the Subcommittee on the International Protection of Human Rights by General International Law, New Dehli, 1974

***For example the manner in which the British Conservatives have moved from being the principal supporters of British membership of the EEC to being dominated by anti-EU forces, whereas the British left moved from visceral anti-EEC agitation based on the notion that the EEC was an anti-worker capitalist plot to being broadly in favour of the EU as a method of promoting workers' interests.

LOAC or IHL? Words matter!

(The ICRC Customary International Law Study - a wonderful piece of work.) 

Rant Mode: ON (You have been warned.)

Words matter. Names matter.

And that is why  is why I'm always so annoyed with the ICRC's insistence on using the term "International Humanitarian Law" (IHL) when referring to the Law of Armed Conflict (LOAC). The principal (& principled) problem is that as a term IHL is dangerously close to International Human Rights Law (IHRL), inviting comparison, conflation and breeding confusion. It is true that some eminent commentators - e.g. Professor Philippe Sands QC - have characterised the two bodies of law as twins separated at birth, raised by mutually antagonistic parents. This is fair enough as both legal cannons emanate from a well-spring of humanitarianism, designed to protect people from the arbitrary predations of States and the powerful; but they are distinct.

And distinct for a reason. Human Rights Law is universal and applies at all times; these are, after all, universal minimum guarantees. The 1948 Universal Declaration of Human Rights (UDHR) enumerates the fundamental rights of people worldwide (even if there were UN members which routinely violated the UDHR's requirements in 1948 - e.g. colonial rule, apartheid, or slavery). Numerous national, regional and international human rights instruments have been added (e.g. the International Covenant on Civil and Political Rights (ICCPR) in 1966, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979; the African charter on Human and Peoples Rights from 1981) which together with some Courts - notably the European Court of Human Rights (ECtHR) in Strasbourg - have transformed the rights of people worldwide by enunciating them and providing redress (however patchy and imperfect.) This is a proud history and a firm foundation for building a better future.

 (The rather wonderful companion to the red book, above.)

The Law of Armed Conflict (LOAC), however, is of a fundamentally different form. First and most importantly, LOAC can by definition only apply during conflict; simply, it is legal to kill an enemy combatant in wartime when killing the same person in peacetime is called murder. Second, as lex specialis (special law relating to specific circumstances), LOAC replaces the existing law for the period in which it is applicable where the two conflict. Third, specific and different rules apply for International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs). Finally, LOAC has large elements that predate the Treaties and exist under Customary International Law which the ICRC attempted the thankless task of pulling together it the Customary Law Study (the red book at the top of the post) - a good piece of work, being improved with the current update, and is especially rewarding when read in tandem with Chatham House's critique (the blue book). 

(Not a pizza)

Any attempt to merge the two is like comparing an apple with a pizza; they are both about rights, but their form and function is entirely different.

So when the ICRC as the guardians of the central LOAC treaty-based legislation (Geneva Conventions I - IV from 1949 and the two Additional Protocols to the Conventions from 1977) tries to broaden the scope of the Conventions by extending the scope of NIACs down from insurgencies where insurgents hold territory and operate a chain of command to civil unrest and riots*, problems are inevitable. The most obvious is that as lex specialis, applying LOAC to civil unrest would actually reduce the protection of human rights, as LOAC overrides the human rights protections.

(Libya's new-old flag: today's protesters are using a variant of the old Royalist flag from pre-1969)

Applying this notion in situations in Libya today could have the following legal effect: by replacing human rights law with LOAC, instead of treating Libyan protesters as civilians engaged in awe-inspiring demotic civic dialogue, who have, amongst other things, the right to life, liberty and security of person under UDHR Article 3, the civilians could be treated as rebel combatants and legally killed as long as there was a military advantaged gained by doing so. When Col. Gaddafi promises to "die in Libya" then it's reasonable to assume that such a legal position would remove what little restraint still exists on the use of force. As bad as things are in Libya, they could be much, much worse if the survival of the state legally allowed essentially unlimited use of force against protesters.

Thus to suggest that LOAC and IHRL are the same thing is bonkers, as it serves to reduce protections and increase the incentive for oppressive regimes to go for broke. Madness, in my humble opinion.

So, a plea for clarity. LOAC is LOAC because it covers armed conflicts - and IHRL covers peacetime. The names help remind us of this, and makes for better policy.

Rant Mode: OFF

*This is a serious and separate problem. Fortunately, Chatham House are conducting an experts' working group on the Classification of Conflict which I'm looking forward to reading in due course. 

Armed Attacks in Cyberspace

 (The front door to our wonderful playroom.)

I was at Chatham House last night for Elizabeth Wilmshurst's excellent International Law Discussion Group series, this time addressed by Col. Hays Parks USMC (Retd), the editor of the forthcoming US Department of Defense Manual on the Law of Armed conflict. (Yes, it's finally happening, and we can replace US Army Field Manual FM 27-10 from 1956!) As expected, Col. Parks was excellent, and with a distinguished audience asking pointedly interesting questions, it was heaven for a LOAC* geek! As usual, ILDG was all very interesting, and there will be a formal note of the meeting on the ILDG website shortly.

(An Annex to our wonderful playroom.)

But one of the most interesting elements was the news that there will be a chapter on the law covering electronic attacks and cyberwarfare. This will be the shortest of the chapters, reflecting the novelty of the subject, but it will be fascinating to see the conceptual approach that the US are taking; crucially, what will they say about the definition of an armed attack in cyberspace? All to be revealed shortly, it seems.

* Don't let Wikipedia or the ICRC mislead you, dear reader. LOAC is not "International Humanitarian Law", it is the law to regulate - and make less terrible - armed conflict... hence, the Law Of Armed Conflict - LOAC! Please note: this blog has no strong views on this subject. Too much.

Steam Trains - Little Ones

Well, with thanks to my parents for an excellent choice of birthday present, here's  me playing on the Romney Hythe & Dymchurch Railway last November - brilliant fun!

Our noble steed for the day - No 8, Hurricane. And snow!

All of the best childish delights....

 Amid the Romney Marshes - desolate, but inviting. And as the train is so small, 20 mph feels like 60 - small genius!