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1. Accountability for War Crimes in Syria: The “Criminalization” Confusion

Author:
Oona A. Hathaway, Paul Strauch, Beatrice Walton, and Zoe Weinberg
Publication Date:
04-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In 1942, three years before World War II came to a close, international lawyer Hersch Lauterpacht prepared a memorandum for the Committee on Crimes Against International Public Order. In it, he considered whether the Nazis should be tried for war crimes when the war ended. Before he could address when and whether to prosecute the Nazis for war crimes, he observed, it was first and foremost necessary to determine “what is a war crime.” Nearly 80 years later, this question looms yet again—this time in the horrific Syrian civil war. No international court or tribunal currently has jurisdiction over the vast crimes committed in Syria since 2011. It seems unlikely at the moment that Syria itself will provide an accounting, and the prospect of the United Nations Security Council agreeing to establish a new tribunal or refer the Syria situation to the International Criminal Court (ICC) appears slim. As a result, domestic courts, mainly in Europe, have taken the lead in pursuing criminal accountability for crimes committed in Syria. The International, Impartial, and Independent Mechanism (IIM), established by the UN General Assembly in 2016, is also beginning to assist domestic Syria-related prosecutions.
Topic:
International Law, United Nations, Humanitarian Intervention, and International Criminal Court (ICC)
Political Geography:
Global Focus

2. What is a War Crime?

Author:
Oona A. Hathaway, Paul Strauch, Beatrice Walton, and Zoe Weinberg
Publication Date:
04-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Here we propose a potential solution to the challenges surrounding the definition of war crimes we identified. In an effort to eliminate the confusion that results from over-reliance on prior criminalization, we distill the concept of war crimes down to its essence. A better approach, we argue here and in a forthcoming article, is to define war crimes as consisting of two key elements: (1) a breach of international humanitarian law (IHL) that is (2) “serious.” This approach is not only more jurisprudentially grounded, but it also has several benefits in the context of ongoing prosecutions of Syrian war criminals in Europe.
Topic:
Genocide, International Law, War Crimes, and Humanitarian Crisis
Political Geography:
Global Focus

3. State Practice on Sovereign Immunity in Employment Disputes Involving Embassy and Consular Staff

Author:
Julia Brower
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report identifies and analyzes foreign case law and statutes on sovereign immunity in employment disputes brought by dismissed embassy and consular staff from twenty-seven countries and two international courts. State practice remains quite diverse, and it is not possible to identify one clear, specific majority test for whether foreign States are immune in such disputes. However, several recent trends exist, with state practice in Europe in particular starting to coalesce around a common approach. The findings of this report must be considered with the limitations of the research in mind. The vast majority of case law surveyed in this report is from Europe and English-speaking countries. Only a handful of translated decisions or statutes from Latin America, Africa, and Asia could be found, and significantly, this report does not include any decisions from China or Brazil.
Topic:
Law, Protected People, Diplomatic Immunity, and Sovereign Immunity
Political Geography:
Global Focus

4. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict

Author:
Daniel Hessel, Julia Shu, and Sarah Weiner
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL. But if states are only governed by the IHL applicable to NIACs once an intensity threshold has been crossed, what law applies below that threshold? The answer varies with the circumstances, depending on whether the state is responding to a threat within its own territory or from outside; and if the threat is from outside the state, whether the host state consents to the use of force against the non-state actor. Thus, to answer the question of what law applies before a NIAC is established, this white paper analyzes three different scenarios in which a state contemplates forceful engagement with a non-state actor. Each scenario presumes that t he non- state actor is organized and has engaged in some violence, but that the intensity of the clash has not crossed the intensity threshold and thus has not risen yet to the level of a NIAC. 1. In Scenario One, a state seeks to engage a non-state actor that operates exclusively within the state’s territorial borders. 2. In Scenario Two, an intervening state seeks to engage a non-state actor located in another state, with the consent of the host state. 3. In Scenario Three, an intervening state seeks to engage a non-state actor located in another state, without the consent of the host state. The analysis of each scenario first identifies the authority that governs whether and when the state may initiate forceful engagement with the non-state actor (the “may the state use force” evaluation), then discusses which legal regime governs the scope and nature of the resulting use of force (the “how may the state use force” evaluation). Different legal regimes govern the acting state’s options in each of the scenarios. Although the authority for action differs, the inquiries for Scenarios One and Two are quite similar. In Scenario One, the acting state may engage the non-state actor with force by virtue of its territorial sovereignty. It must act, however, through a domestic law enforcement framework and in compliance with human rights law. In Scenario Two, the acting state derives the authority to use force against the non-state actor from the host state’s consent. However, it may only rely on that consent insofar as it comports with the host state’s human rights obligations under international law. In raising the possibility of one state violating another state’s territorial integrity, Scenario Three raises a different set of questions. The intervening state’s threat or use of force within another state’s territory is only lawful when authorized by the U.N. Security Council or justified under the Charter’s Article 51 self-defense provision. The intervening state’s use of force is accordingly regulated by the traditional IHL of international armed conflict. Where scenarios overlap (when, for example, the intervening state has both consent and Article 51 authority to act), the acting state may rely on more than one source of authority. It must, however, continue to ensure that it has authority to use force and that its use of force comports with the legal framework appropriate for the nature and intensity of the conflict. It is worth noting at the outset that these scenarios highlight developing areas of international law. Some raise questions that have clear answers in existing legal authority, while others contend with more inchoate legal regimes. Where state practice has not yet solidified into definitive international norms, legal ambiguity remains. In such instances, this white paper notes the existence of ambiguity and examines the history, purposes, and principles of relevant legal regimes to proffer answers.
Topic:
Military Strategy, Non State Actors, Law, and Conflict
Political Geography:
Global Focus

5. Common Article 1 and Duty to "Ensure Respect"

Author:
Zachary Manfredi
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper investigates whether the “to ensure respect” clause of Common Article 1 of the 1949 Geneva Conventions creates third state obligations. Third state obligations could impose both negative and positive duties on states to ensure that other states and some non-state actors comply with the Conventions. This issue has gained salience in light of the imminent publication of new set of commentaries on the Conventions by the International Committee for the Red Cross. The new commentaries will likely suggest that third state obligations under Common Article 1 are robust. This paper assesses the anticipated ICRC position in light of both the drafting history of Common Article 1 and subsequent interpretations by major international tribunals and states. It concludes that Common Article 1 provides for some third state obligations, but that their scope and content remains underspecified and highly contested.
Topic:
International Law, Humanitarian Crisis, Red Cross, and Geneva Convention
Political Geography:
Global Focus

6. State Responsibility for Non-State Actors That Detain In The Course of a NIAC

Author:
Emily Chertoff, Lara Dominguez, Zak Manfriedi, and Peter Tzeng
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This white paper addresses three questions that arise when a non-state actor that is receiving assistance from a state actor in a non-international armed conflict engages in detention activities: (1) Under international law, when does a non-state actor have the authority to detain individuals captured in the course of a non-international armed conflict? (2) When does a state providing assistance to a non-state actor become responsible under international law for the non- state actor’s actions? (3) Assuming such responsibility exists, what actions must the state take if it believes the non-state actor may engage in human rights abuses or violations of the law of armed conflict? In response to the first question, neither the Geneva Conventions nor customary international humanitarian law provides a legal basis for non-state actors to detain captured individuals in non-international armed conflicts. However, international humanitarian law also does not expressly prohibit non-state actors from detaining individuals. Instead, it regulates the conditions of detention. If non-state actors comply with Common Article 3 of the Geneva Conventions and relevant provisions of the Second Additional Protocol, detention by armed groups in non-international armed conflict does not violate an explicit provision of international humanitarian law. As long as detention is not arbitrary, internment by non-state actors is also unlikely to constitute the war crime of unlawful confinement. In response to the second question, under agency-based theories of the state responsibility doctrine, actions of non-state actors may be directly attributed to the state if (1) the state exercises either strict or overall control over the non-state actor such that the group operates as a de jure or de facto state organ or (2) the state exercises effective control over a specific operation undertaken by the non-state actor. Additionally, to the extent Common Article 1 requires states to ensure that all parties to an armed conflict respect the Geneva Conventions, it may create an alternative and additional source of state liability for the actions of non-state actors. Finally, in response to the third question, this white paper recommends a series of ex ante and ex post measures states can adopt when engaging with a non-state actor. These include, vetting, training, acquiring written agreements, providing punishment frameworks, and ceasing support when actors commit violations of IHL. Since existing jurisprudence does not contemplate mitigation of state responsibility for the conduct of non-state actors, it is difficult to assess to what extent any of the proposed measures would limit the state’s liability. Nevertheless, states adopting these recommendations will both make violations less likely and be more likely to discharge their duties under international humanitarian and human rights law. By taking ex ante measures designed to prevent violations and creating ex post incentives for non-state partners to comply with IHL norms, states reduce the risk armed groups will engage in detention practices that violate international law.
Topic:
International Law, Non State Actors, Humanitarian Intervention, and Armed Conflict
Political Geography:
Global Focus

7. Collective Self-Action

Author:
Ananth Padmanabhan and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Collective self-defense is an express exception to the U.N. Charter’s prohibition on the use of force by states. It permits a member state to intervene in the defense of another member state when that state has been subject to an unlawful armed attack. Here we consider (1) the obligations that international law places on an intervening state and (2) the best practices for an intervening state that may be derived from past state practice.
Topic:
United Nations, Military Strategy, Legal Theory, Military Intervention, and Collective Defense
Political Geography:
Global Focus

8. The Meaning of "Assist, Encourage, or Induce" in the Weapons Ban Context

Author:
Christina Koningisor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
More than half of all multilateral disarmament treaties currently in force prohibit member states from “assist[ing], encourag[ing], or induc[ing]” another party in its pursuit or use of the prohibited weapon. This report examines this provision across five major disarmament treaties and arrives at three key findings
Topic:
Arms Control and Proliferation, Treaties and Agreements, Military Strategy, and Multilateralism
Political Geography:
Global Focus

9. Optimal Deterrence: An Evaluation of the Leaks-Regulating Regime

Author:
Ananth Padmanabhan, Tina Thomas, and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Recent high-profile leaks have led to renewed calls, especially from some members of Congress, for a more rigorous leaks-prosecuting regime. In response, others, most visibly the press and certain watchdog groups, have strongly resisted the claim that a more forceful response to unauthorized disclosures benefits the American public. This report evaluates the existing leaks-regulating regime and considers which of the current reform proposals are most likely to provide optimal deterrence. First, this report outlines the myriad and sometimes contradictory interests at stake implicated by unauthorized disclosure of classified information: protecting national security, safeguarding First Amendment rights, ensuring government accountability and transparency, promoting consistency in prosecution, and furthering efficient government functioning. Second, this report examines why it has proven difficult for the government to successfully prosecute leaks. It identifies four leading reasons. First, it can be difficult to identify a leaker, given the vast proliferation of the classification system and the expansion of national security bureaucracy. Second, the government faces significant legal burdens at trial— prosecutors often have to rely on circumstantial evidence; in the case of intangible information disclosure, the government may also have to deal with a heightened scienter requirements. Third, a trial may attract unwanted attention to an issue the government prefers to keep secret and defendants sometimes try to capitalize on this by using “graymail” defenses. Finally, the recipients of unauthorized disclosures—usually members of the press—enjoy robust constitutional protections that can restrict evidence gathering.
Topic:
Governance, Legal Theory, Deterrence, Classification, and Leaks
Political Geography:
Global Focus

10. Arms Trafficking: The International and Domestic Legal Framework

Author:
Oona A. Hathaway, Elizabeth Nielsen, Chelsea Purvis, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The conventional arms trade,2 both legal and illegal, is vast in scope. As of 2001, there were an estimated half billion documented small arms in the world, more than one for every twelve people.3 International arms sales are a booming business, and the United States is the world’s largest exporter. In 2008, worldwide arms transfer agreements reached a value of $55.2 billion, of which 76.4% involved developing nations.4 The United States accounted for $37.8 billion, or 68.4%, of these worldwide arms transfer agreements,5 and U.S. activity falls into five categories: foreign military sales agreements between foreign governments and the Department of Defense, direct commercial sales to foreign buyers negotiated by U.S. companies, leases of military equipment by U.S. entities, excess defense materials, and emergency decreases of weapons stockpiles.6 An extensive legal regime has emerged at the international and domestic levels to regulate conventional arms trafficking. This report aims to provide an overview of that framework. It surveys existing international arms trafficking agreements and provides an analytic framework for distinguishing between them. It also surveys the domestic legal framework regarding arms trafficking. Together, these overviews provide a starting point for identifying the shortcomings of existing law, identifying gaps in the legal framework as it currently operates, and considering options to begin to address these shortcomings. This report begins in Part I by briefly outlining the scope of the problem of conventional arms trafficking. It then turns in Part II to identifying three fundamental axes on which international arms trafficking agreements differ. First, each agreement targets one or more points in a conventional arms life cycle: it targets the point of production; the point of domestic ownership and transfer; or the point of interstate transfer. Second, agreements differ in the scope of weapons they cover—they may target different classes of weapons (such as major conventional weapons, small arms and light weapons, and dual-use technologies) and different legal categories of weapons (for example, some cover both legal and illicit weapons, while others only focus on illicit weapons). Third, agreements differ in terms of their enforceability: some are legally binding while others set nonbinding goals. Part III of the report examines the ways in which the United States regulates arms trafficking through its domestic laws and international agreements. It shows that the United States places strong controls on interstate transfers of arms, but it has a more mixed record when it comes to regulating earlier stages of the arms life cycle. While U.S. law places a number of marking and recordkeeping requirements on arms producers and sellers, domestic ownership laws are lax compared to those of other countries. Part IV shows that there are three major gaps in extant arms trafficking agreements. First, the international agreements that are the most enforceable either fail to target arms trafficking at multiple points in the life cycle or fail to cover a broad scope of weapons. Second, arms trafficking agreements do not adequately regulate the illicit resale of arms in the black market after they are produced and sold for the first time legally. This is because there is no binding and enforceable agreement that requires states to track all domestic weapons transfers, from their initial sale to the final sale before their export. Finally, major arms suppliers, such as the United States, are not party to several major arms trafficking agreements. To address these shortcomings, this report offers three options available to U.S. policymakers for strengthening arms trafficking laws. First, the United States could increase multilateral engagement by ratifying the leading regional arms trafficking agreement, Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunitions, Explosives, and Other Related Materials (CIFTA). Doing so would likely require no changes in U.S. domestic law but would strengthen the U.S. ability to coordinate its arms control efforts with other countries while encouraging other countries to more effectively address arms trafficking. Second, the United States could increase bilateral programmatic assistance to address arms trafficking—at the very least by taking arms trafficking into account in existing assistance programs. Finally, the United States could engage more actively in leading negotiations over a robust and comprehensive arms trade treaty. Such an agreement would ideally aim to bring the international legal standards developed in CIFTA to the global stage. In leading the way toward such a comprehensive treaty, the United States could encourage universal adoption of the high standards the United States already has in place to ensure that arms are not transferred for illegitimate purposes—purposes that may directly affect U.S. security interests.
Topic:
International Trade and Finance, Arms Trade, Trafficking, Legal Theory, and Illegal Trade
Political Geography:
Global Focus