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News Roundup 16 November – 22 November

November 25, 2020
  1. MSF denounces ongoing violence in Salamabila
  2. The ‘false positives’ scandal that felled Colombia’s military hero
  3. Ethiopia rejects African mediation, pushes toward rebel-held Tigray capital
  4. Libya talks pause without naming transitional government
  5. Israel advances plans in sensitive East Jerusalem settlement
  6. Ukraine: Armed Groups’ Arbitrary Pandemic Restrictions
  7. Why more women are joining Myanmar’s Arakan Army insurgency
  8. Azerbaijan enters Nagorno-Karabakh district after peace deal
  9. Tigray refugees recount the horrors of Ethiopia’s new conflict
  10. Ethiopia Tigray crisis: Abiy issues ‘ultimatum’ as civilians flee fighting

News Roundup 9 November – 15 November

November 18, 2020
  1. Guterres ‘remains committed’ to maintaining 1991 ceasefire in Western Sahara
  2. Ethiopia claims big advance in Tigray, Amnesty reports mass killing
  3. Ethiopia’s Tigray conflict sees hundreds dead, thousands flee to Sudan
  4. Ethiopian PM accuses Tigrayan rebels of ‘massacring’ civilians
  5. UN envoy urges Yemen’s warring parties to place ‘a firm bet on peace’, as famine threat continues
  6. Egypt: Shifting tactics by armed groups curb Sinai development
  7. Armed groups target Colombia’s children as reform process slows
  8. UN launches new Libya talks amid cautious optimism
  9. ICC Prosecutor calls for Libya ceasefire progress, decries ‘powerful forces’ hampering global justice
  10. Civilians bear the brunt of violence in Mozambique’s Cabo Delgado

News Roundup 2 November – 8 November

November 11, 2020
  1. The humanitarian fallout of the Nagorno-Karabakh conflict
  2. UN rights chief warns of possible war crimes in Nagorno-Karabakh conflict
  3. Ethiopia: Over 50 ethnic Amhara killed in attack on village by armed
  4. Protect children and relief workers caught up in conflict, urges UN rights envoy
  5. Second recent attack on Kabul school draws Guterres’ strong condemnation
  6. In Myanmar’s Rakhine State, trust in armed group grows as election hopes fade
  7. France ‘to reduce troop presence’ in Sahel
  8. Rival factions in Libya agree on implementation of ceasefire deal
  9. Deputy UN chief pushes Security Council on global ceasefire, to fight ‘common enemy’
  10. Colombia’s ex-FARC rebels march in Bogota over killings

Protection of the Environment and Non-State Armed Groups: IHL and Islamic Law Perspectives

November 6, 2020

Dr Ahmed Al-Dawoody is the legal adviser for Islamic law and jurisprudence at the ICRC. He also teaches at the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland, a course on the Islamic law of armed conflict. Prior to joining the ICRC, he was an Assistant Professor in Islamic Studies and Islamic law and jurisprudence at Al-Azhar University in Cairo. He has published more than two dozen articles and book chapters on Islamic Law and is the author of The Islamic Law of War: Justifications and Regulations (Palgrave Macmillan, 2011). He is writing this piece in his personal capacity.

Sarah Gale is a Protection Delegate with the International Committee of the Red Cross. She completed her Juris Doctor (law degree) in Canada at the University of Victoria and her Master of Laws at the Geneva Academy of IHL and Human Rights. She has worked with various organizations in multiple conflict and post-conflict contexts prior to joining the ICRC in 2016. She is writing this piece in her personal capacity.

Introduction

There are a range of ongoing efforts to strengthen and clarify the protection of the environment, including during armed conflict. This blog post focus on using existing tools, the most basic principles of International Humanitarian Law (IHL), distinction, proportionality and precautions, to protect the environment in armed conflict. Reflecting on and utilizing already existing instruments is important, given the fact that efforts to enhance or strengthen rules on the protection of the environment during armed conflict takes time. Additionally, in current debates on how to better protect the environment during armed conflict, non-state armed groups (NSAGs) are often underrepresented. As important players in times of conflict, we need to improve engagement with such groups who play an equal part in working to protect the environment during armed conflict. One means of doing this is by going back to the basics, using these as tools to begin the conversation alongside other means of influence such as Islamic law. Islamic law contains important provisions on the protection of the environment and can be invoked in relevant contexts to reinforce IHL principles.

This blog post is seeking to touch on how the basic principles of IHL can be used to engage with both NSAGs and armed forces to improve protection of the environment during international and non-international conflicts. Islamic law is a powerful source of influence when working with NSAGs which align with Islamic principles, in encouraging and facilitating respect for the law.

Country/Region: IRAQ. Caption: Fao. Palm trees damaged during the Iran-Iraq war in the 1980s have not grown back.Photographer: KHALAF, Mike Mustafa. Copyright: ICRC

Definition of the Environment

This blog post refers to the ‘environment’ or ‘natural environment’ (terms which are not defined in IHL), “to constitute the natural world together with the system of inextricable interrelations between living organisms and their inanimate environment, in the widest sense possible” (see footnote 23, citing Sands et al).

It is generally accepted that the natural environment is civilian in character. The ICRC’s updated Guidelines on the Protection of the Natural Environment in Armed Conflict provides a concise summary of the debate around the anthropocentric versus intrinsic approach to classifying all aspects of the environment as civilian or not. (p. 18) In this blog post, we adopt the intrinsic approach as interpreted by the ICRC in the Guidelines. According to the Islamic worldview, everything in this universe is the creation of God, and human beings are entrusted with the responsibility of protecting it and contributing to human civilization. The second caliph Abu Bakr (d. 634) instructed his army commander: “do not cut down fruit-bearing trees or destroy buildings; do not slaughter a sheep or a camel except for food; do not burn or drown palm trees; do not loot; and do not be cowardly.” (Ahmed Al-Dawoody, p. 1003)

With the natural environment established prima facie as comprised of civilian objects, the application of the basic principles of IHL becomes quite straightforward. There must be a distinction between military objectives and civilian objects, with a prohibition on targeting civilian objects, which includes all parts of the natural environment. The natural environment being comprised of civilian objects also means that during the proportionality assessment, damage to such objects has to be taken into account to ensure that it is not excessive to the military advantage gained. In addition, under the principle of precautions, constant care must be taken to spare all parts of the natural environment as civilian objects, with all feasible precautions taken to avoid and minimize incidental damage.

These concepts are core principles in Islamic law, since all fighting must be directed solely against enemy combatants and civilian objects must not be deliberately harmed during hostilities. Seventh-century Muslim jurists deliberated the permissibility of certain indiscriminate means (catapults and poison or fire tipped-arrows) and methods of warfare (nights attacks and shooting at the human shield) with the same IHL objectives of minimizing incidental harm to civilians and civilian objects. Further, Islamic law prohibits the deliberate destruction of enemy animate and inanimate property. Hence, wanton destruction of enemy property as advocated by the renowned jurist al-Awzāʻı̄ (d. 774) constitutes the criminal act described metaphorically in the Qur’ān as fasād fī al-arḍ (literally, ‘destruction in the land’).

Reflective of the Islamic law prohibition of ‘destruction in the land’, in addition to the protected status of all parts of the environment as civilian objects, there are specific IHL rules which serve to prohibit the destruction of any part of the natural environment, not justified by imperative military necessity. (Guidelines, Rule 13)

How can these rules be used to protect the environment

Recognizing the civilian status of the natural environment as well as its sanctity through Islamic religious/legal perspectives, immediately places the absolute protection that in and of itself, the natural environment cannot be targeted, unless it becomes a military objective due to its location, purpose, or use. Furthermore, from a pragmatic perspective, medieval Muslim armies would not resort to wanton destruction because of the customary practice for enemy possessions to be distributed among the members of the winning side of the battle. The challenging aspect lies in the practical application of these rules and the interpretation of what is disproportionate damage to the environment.

To take an example, if there was an attack on a military objective, such as a military base located near a river, through the proportionality and precautions assessment it would have to be determined that the impact on the river would not be disproportionate to that of the perceived military advantage anticipated. However, there are inherent ambiguities in conducting such assessments and is difficult to do in practice. As a starting point, when planning the attack and assessing the means/methods of warfare, the NSAG should ask questions such as, is the river used as drinking water for nearby communities, is there sensitive fish habitat in the river, what would the impact of harmful chemicals be on water quality over the longer term. This example is reminiscent of the premodern Muslim jurists’ deliberations over the permissibility of the use of poison-tipped arrows, referred to above, which is prohibited. To be noted that in IHL there is an absolute prohibition on the use of poison or poisoned weapons. (ICRC Customary IHL Study, Rule 72)

In another example, if a military used a forest to hide military weapons or personnel, part of that forest may become a military objective. However, the entire forest does not then become a military objective. The specific area where the weapons/personnel are hidden may become a military objective, but the rest of the forest remains civilian in character. Further, the civilian use of the specific section which has become a military objective would still need to be taken into account. This specific section of the forest where the weapons/personnel are hidden may be considered to be a dual use object (an object that may be used for both military and civilian purposes), where the civilian impact would have to be taken into consideration. (ICRC, Expert Meeting Report, p. 37) While the separation of military and civilian parts of a dual use object is debated, we are arguing for the most protective interpretation of the basic principles as applied to the environment. Should the attack on weapons hidden in the forest release toxic chemicals, this may have direct as well as reverberating impacts on the health of the forest, otherwise a civilian object. Such impacts need to be taken into account through proportionality and precautions assessments. While a certain level of collateral damage is permitted to the environment, the same for any civilian object, the extent of the damage must be lawful. For instance, the United Nations Environment Programme has highlighted, “burning an entire forest to reach a single minor target”, would be disproportionate. (p. 13)

Application to NSAGS

In order to keep NSAGs central to the discussion, it is necessary to recognize the capacity of NSAGs to undertake environmental assessments for certain attacks to ensure they respect the principles of proportionality and precautions. NSAGs vary in size and capacity. While some may have the capabilities to undergo complex assessments, others may not, which has implications in assessing whether everything feasible was done to protect the environment as civilian objects. (IHL Customary IHL Study, Rule 15) For the sake of being practical and engaging in realistic dialogue with NSAGs, in the view of the authors, it could be argued that the ‘sliding scale’ of obligations could be an applicable argument when it comes to assessments of potential environmental harm. (p. 426) Long term environmental harm from military actions can be difficult to assess, for even the most sophisticated of players. In the Final Report to the Prosecutor of the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, it was admitted the environmental impact of the bombing campaign was unknown and difficult to measure (at para 23). Such a sliding scale would recognize that not all NSAGs have the ability to undertake sophisticated assessments on potential environmental damage, but allows space for the conversation to be had with the understanding that at least a basic level of assessment is required when it comes to environmental impact of operations. However for NSAGs with a certain level of sophistication, information on long-term environmental risks has improved since the NATO Bombing Campaign, which translates into an expectation that this information will be gathered and included when making assessments on incidental damage to the natural environment (Guidelines, p.54)

Relying on Islamic law as a source of influence for NSAGs who refer to this framework as their source of reference can also be used to support NSAGs in fulfilling obligations on the protection of the environment. Ideally, developing codes of conduct by NSAGs based on the sources of references they are willing to abide by, that ensure the protection of the environment, is a pragmatic approach to fill in the gap where an NSAG lacks the capacity to undertake assessments aiming at the protection of the environment. This is an example where engagement with NSAGs to provide expertise that helps them develop their capacities to undertake environmental assessments is important.

Conclusion

NSAGs can either act as a positive or negative force in the protection of the environment during armed conflict. This emphasizes the need to engage with NSAGs, starting from the most basic provisions of IHL, reinforcing these messages through Islamic law in Muslim contexts. We have seen attacks by NSAGs causing destruction to farmland, as well as burning oil wells releasing toxic chemicals into the atmosphere resulting in significant damage to the environment. (see here, article by Kira Walker) On the other hand, there are examples of NSAGs who play a proactive role through including rules on the protection of the environment in their codes of conduct. Engaging with NSAGs is a necessary step in the growing recognition on the importance of protecting the environment in armed conflict. Without engaging NSAGs, the environmental conversation will only ever be one sided, and incomplete.

News Roundup 26 October – 1 November

November 4, 2020
  1. Pakistan: Schools ‘must never be targeted’, UNICEF says after deadly blast
  2. UN Syria envoy places hope in new talks, works towards lasting ceasefire
  3. UN shocked and outraged over horrific attack on school in Cameroon
  4. Mali, France differ over holding talks with armed groups
  5. Suspected ADF attack in DRC village kills more than 20 civilians
  6. DR Congo army says Burundi rebels forced from strongholds
  7. Central African Republic: How COVID-19 is impacting peace and conflict
  8. Markedonov on why international mediators’ efforts for Nagorno-Karabakh conflict settlement not effective
  9. U.S. urges diplomacy as Nagorno-Karabakh fighting rages
  10. Russian strike on Syria’s Idlib fighters a ‘message’ to Turkey

Online HILAC lecture: International humanitarian law and non-state actors

November 2, 2020

Tomorrow evening, the T.M.C. Asser Institute will host a great line-up of panellists to celebrate the publication of the co-edited volume International Humanitarian Law and Non-State Actors (Asser Press).

Edited by Ezequiel (co-editor of this blog), Marcos D. Kotlik and Manuel J. Ventura, the volume explores some of the roles that multiple non-state actors play in today’s non-international armed conflicts, through interactions among themselves and with States on a daily basis and for a myriad of different reasons. The book includes analysis addressing all kinds of non-State actors, such as non-State armed groups, individuals, the UN through its different agencies, the ICRC, humanitarian NGOs and human rights bodies)

In the presence of the editors and some of the book’s authors, the panelists Ezequiel Heffes, Yasmin Naqvi, Marco Sassòli, Rebecca Mignot-Mahdavi and Tilman Rodenhäuser will discuss some of the real-life challenges presented by non-State actors in conflict settings, and how (and to what extent) we can address them to affect the resolution of practical and theoretical problems in the realm of IHL.

Starts at:18:00 (CET time)

Venue:Online

Organiser:HILAC and Asser Press REGISTER

News Roundup 12 October – 25 October

October 28, 2020

12 October – 18 October

  1. Yemen’s warring sides complete largest prisoner swap in 5 years
  2. Iraqi fighters ‘agree conditional ceasefire’ to halt US attacks
  3. Victims or villains? The volunteer fighters on Burkina Faso’s front line
  4. The obstacles to Sudan’s landmark peace deal
  5. UN urged to take action against Myanmar over civilian abuses
  6. Karabakh war leaves civilians shell-shocked and bitter
  7. Turkish-Backed Syrian Fighters Join Armenian-Azeri Conflict
  8. Continued violence strains Colombia peace process, Security Council hears
  9. An ‘airlift of hope’ in Yemen, UN envoy tells Security Council
  10. The impact of explosive weapons on children in Syria

19 October – 25 October

  1. UN salutes new Libya ceasefire agreement that points to ‘a better, safer, and more peaceful future’
  2. Libya: Military leaders resume UN-sponsored talks
  3. Warring Libya rivals sign truce but tough political talks ahead
  4. Step up action to achieve COVID-19 ceasefire, Guterres says in UN Day message
  5. Nagorno-Karabakh Conflict: Shortage of Specifics Complicates Search for Solutions
  6. Absence of US Diplomacy on the Armenia-Azerbaijan Conflict Risks a Wider War
  7. From conflict to a pandemic: Kashmir’s volunteer aid brigade
  8. Central African Republic: While many ‘people are hungry for trials’ some warlords still walk free
  9. Little progress on disputed Abyei region between Sudan and South Sudan
  10. Behind the global ceasefire call: 75 years of UN mediation, preventing conflict, promoting peace

Compliance Symposium: The Role of the United Nations Special Representative of the Secretary-General for Children and Armed Conflict

October 23, 2020
(c)Anne Schintgen

Up at Opinio Juris, you can find the latest post by Anne Schintgen “Compliance Symposium: The Role of the United Nations Special Representative of the Secretary-General for Children and Armed Conflict”, in our co-hosted symposium on Compliance in Armed Conflict. Check it out here!

Forgotten Freedoms: The Right to Free Expression in Areas Controlled by Non-State Armed Actors

October 23, 2020

Melina Fidelis-Tzourou holds a Law Degree from the University of Athens and an LLM from the Geneva Academy of IHL and Human Rights. She has prior experience working with the ICRC Mission in Greece, the Greek Council for Refugees and as an associate in a law firm specialising in litigation of national military cases. She is currently supporting Fight for Humanity as a pro bono legal and policy Researcher. Ann-Kristin “Anki” Sjöberg is the Co-Director and Founder of Fight for Humanity, focusing on extending human rights to armed and political actors, especially armed groups. She has 16 years of experience from working in the non-profit sector on issues linked to conflict, security, armed groups, and gender. She holds a PhD in International Relations focused on Political Science from the Graduate Institute of International and Development Studies, Geneva, Switzerland.

Back to Basics: Non-State Armed Actors and Human Rights Obligations

It’s the same old story. Are non-state armed actors bound solely by international humanitarian law (IHL) or by international human rights law (IHRL) as well? The discussion is on-going, unsettled, borderline passé and, still, painfully relevant.  

In a gist, while no one denies the applicability of IHL to non-state armed actors when they are parties to a non-international armed conflict, the question of whether such actors also have IHRL obligations is a bit more complex and has encountered vehement opposition by certain factions of the international community. Leading the charge in said opposition are predominantly states themselves, which fear that such a concession would legitimize the status of such actors and strip states of certain sovereign prerogatives by forcing them to ‘share’ responsibilities with ‘rebels’, at best, or ‘terrorists’, at worst. In this (steadily flailing) attempt to preserve their sovereign interests, states – and other supporters of this position – will invoke the proverbial ‘big guns’ of their legal armory: IHRL was born out of a historical imperative to protect human individuals from the power of governments. It regulates the vertical relation between sovereign states and their subjects. It was crafted to address states and states alone. End of story. 

Or…to be continued?

Indeed, it seems that contemporary reality no longer justifies this paradigm, as discussed in a recent webinar organized by Fight for Humanity. Even more, contemporary reality dictates a deconstruction of doctrinal orthodoxy, lest the IHRL enterprise be warped into a normative scheme which lends itself to the preservation of power structures, as opposed to a framework which concerns itself with the protection of human dignity. In light of such considerations, certain scholars (some of which are participating in this symposium) have proposed that non-state armed actors should also be bound by IHRL, at least to a degree which is commensurate with the context and the capabilities of each specific non-state armed actor. 

Institutional practice to this effect has also been gaining traction. Reports by UN Special Rapporteurs, independent commissions of inquiries and also IHL focused organizations such as the ICRC have been gradually accepting the applicability of IHRL to non-state armed actors, with varying degrees of caution and qualifiers in their statements. These developments indicate a coalescing consensus that non-state armed actors, at least in cases where they control territory and exercise government-like functions, are bound by IHRL norms as well. This is a welcome advancement that better corresponds to the protection needs of contemporary reality, which is mind-boggling. It has been estimated that approximately 60-70 million civilians currently live in areas under the control of non-state armed actors, their lives and all manifestations thereof subject to the conduct of these actors, which, if not subsumed under IHRL, will – by default – be left discretionary and unregulated, at least when IHL does not apply.

Freedom of Expression in Areas Controlled by Non-State Armed Actor Areas: Why does it Matter?

While theory and practice may be incrementally accepting that IHRL binds non-state armed actors, the discussion, as for example in the 2014 UN Report on South Sudan, still revolves mostly around rights related to the so-called integrity of the person or ‘protection rights’ that are more closely related to IHL. This is to some extent understandable, but it overlooks the reality on the ground. Non-state armed actors are not solely committing abuses. Rather, they are also capable of engaging in less vilified conduct, such as administering territory through military and civilian institutions, setting up judicial systems and holding trials, running prisons, structuring healthcare or organizing elections. By emphasizing solely on rights which refer to the integrity of the person, the international community is failing to address other civil and political rights (or ‘participation rights’), which are equally relevant, and which non-state armed actors can and should respect in order not to leave a rights’ gap.

One such right is freedom of expression. Often cited as the ‘cornerstone’ for a free and democratic society, freedom of expression is considered an indispensable condition for the full development of a person. Indeed, freedom of expression is not a hermetic right. Rather, it permeates the entire IHRL edifice, constituting an essential prerequisite for the unfettered enjoyment of other cardinal rights, such as freedom of religion, freedom of assembly and association or the right to vote and take part in the conduct of public affairs. 

As for its substantial safeguards, freedom of expression – which is inherently linked to freedom of opinion – generally includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any medium. Moreover, while freedom of expression is a limitable right, it can only be restricted for reasons relating to the protection of rights and freedoms of others, the protection of national security, public safety and order, and subject to necessity and proportionality conditions being met (See Art. 19(2), ICCPR; Art. 10, UDHR; Art. 10(1) ECHR; Art. 13(1) ACHR).

In light of these observations, it is easy to discern why freedom of expression is immensely important for populations living under the control of non-state armed actors. In general, the displacement of state authorities by the non-state armed actors and the corresponding substitution of control will usually result in a certain degree of social volatility and political heterogeneity (which may well include ethnic or religious heterogeneity). In turn, this context can engender fervent expression of opinion, which may directly oppose the rule of the non-state armed actors in control, question its administrative methods and capabilities, openly condemn its conduct or call for a return of governmental authorities or alternative authorities, tempting the non-state armed actors to repress such voices.

This is why advocating for the respect of freedom of expression by non-state armed actors is important. People living in territories controlled by such actors need to feel that they can voice their content or dissatisfaction with the status quo, without fearing retribution. They must be allowed access to information and ideas which may question the non-state armed actor’s rule or legitimacy, without fearing for their lives and that of their families. Local media and journalists need to be free to report on the situation transpiring on the ground without suffering repercussions. Such reporting could not least help strengthen the compliance with IHRL, as well as IHL, by shedding light on violations occurring on the ground.

In this vein, non-state armed actors must understand that they cannot propagate the oppression which they, and the people they may claim to protect, may have faced at the hands of governmental authorities, by silencing voices and ideas of people who oppose them. Freedom of expression is a human right which must be respected, not a ‘reward’ only for those who are in the process of overthrowing an oppressive regime or have succeeded to do so.

Moreover, freedom of expression is an imperative channel for social cohesion and peace, which is desperately needed in many areas controlled by non-state armed actors. It combats oppression by allowing people to articulate, develop, amend, deconstruct, reject, criticize, own or advocate ideas and opinions and opens up space for dialogue. This is especially essential in non-state areas where a minority has become a majority, creating new minorities, new grievances, and additional hinders to solving conflicts. 

In short, freedom of expression fosters a sense of justice by enabling accountability and representation of different groups. Ultimately, these lay the foundation for a functioning society, which conforms to IHRL standards and democratic values.

An Unexplored Opportunity –Respect for Freedom of Expression as an Avenue for Compliance?

For the skeptics, who still insist that only IHL binds non-state armed actors, one may viably argue that IHL also safeguards freedom of speech, albeit in a more rudimentary way. Indeed, IHL of non-international armed conflicts, which is binding upon non-state armed actors, prohibits violence to life and person. According to the ICRC, respect for the person should be understood in the widest possible sense to include all 

‘rights and qualities which are inseparable from the human being by the very fact of his existence and his mental and physical powers; it includes, in particular, the right to physical, moral and intellectual integrity’. 

Under this interpretation, one could argue that freedom of opinion and expression is also protected by IHL, as cardinal manifestations of respect to the person. Simply put, under IHL, the limiting of such a freedom may be more easily justifiable, for legal reasons which space      does not allow us to extrapolate upon.

And for the non-skeptics, Fight for Humanity and the Centre for Applied Human Rights of the University of York, are developing a research project that will further explore the role and potential of non-state armed actors and freedom of expression. Story to be continued.

Compliance Symposium: Pariah or Stakeholders? Enhancing Compliance with Humanitarian Norms by Including Non-State Armed Groups’ Views and Practice

October 23, 2020

Up at Opinio Juris, you can find the latest post by Annyssa Bellal and Pascal Bongard “Compliance Symposium: Pariah or Stakeholders? Enhancing Compliance with Humanitarian Norms by Including Non-State Armed Groups’ Views and Practice” in our co-hosted symposium on Compliance in Armed Conflict. Check it out here!