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Begin New Search Topic Humanitarian Intervention Publishing Institution Center for Global Legal Challenges, Yale Law School

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. 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

3. Historical Examples of Unauthorized Humanitarian Intervention

Author:
Julia Brower, Ryan Liss, Tina Thomas, and Jacob Victor
Publication Date:
08-2013
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In December 1971, India sent troops into what was at the time known as East Pakistan. For the preceding months, Pakistani forces had been engaged in a violent conflict with a Bangladeshi separatist group.1 The Indo-Pakistani conflict was sparked by the Bangladesh Liberation War, a conflict between the West Pakistanis and the East Pakistanis, who were mainly of Bengali ethnicity.2 In the 1970 Pakistani election, the East Pakistani Awami League secured a simple majority in the Parliament of Pakistan.3 The West Pakistani leadership, however, stalled in relinquishing power.4 The Awami League declared the independence of East Pakistan as Bangla Desh on April 10, 1971.5 West Pakistani forces engaged in violent attempts to end the insurrection, committing widespread atrocities against the Bengali population of East Pakistan.6 Over a million Bengalis were killed.7 And, an estimated 8 million refugees fled to India.8 In December 1971, fighting broke out between India and Pakistan when India sent armed troops into East Pakistan.9 U.N. debates over the conflict took on a distinctly Cold War tone, stalling any action on the part of the United Nations.10 The military conflict between India and Pakistan lasted only thirteen days before Pakistani forces in East Pakistan surrendered.11 By January 4, 1972, the Secretary-General was able to report that the cease-fire between the two states “appeared relatively stable.”12 As a result of India’s intervention, East Pakistan ultimately achieved independence and became modern-day Bangladesh.13 In justifying its unauthorized intervention, India framed the issue as mainly one of self-defense and regional security. Citing the millions of refugees flowing from East Pakistan into India, the Prime Minister of India wrote to the U.N. Secretary General that Pakistan’s actions “pose a serious threat to our security” and that the resulting military action taken against Pakistan was “entirely defensive.”14 The Indian Ambassador to the Security Council argued that Pakistan had committed a crime of “refugee aggression,” that is, its aggression came from the strain its actions placed on India’s social structure and finances.15 India also argued that it had a right to intervene in light of the humanitarian catastrophe engulfing East Pakistan. The Indian Ambassador to the U.N. claimed that India had “absolutely nothing but the purest of . . . intentions: to rescue the people of East Bengal from what they are suffering.”16 India also maintained that its authority to intervene to end the humanitarian catastrophe was based in part on the consent of Bangladeshi people, even though Bangladesh was not yet an independent state.17 In making this argument, India argued that the rule of self-determination might be applied to the Bengali people.18
Topic:
United Nations, Military Strategy, Legal Theory, and Humanitarian Intervention
Political Geography:
Pakistan, India, and Asia