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1. Saudi Coalition “Admission” of Error in Bombing Cholera Treatment Center Implicates the United States

Author:
Oona A. Hathaway
Publication Date:
01-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In June 2018, the U.S.-supported Saudi led coalition struck a cholera treatment center run by Médecins Sans Frontières/Doctors Without Borders (MSF) in Yemen. A recent internal investigation released by the coalition tries to lay the blame for the strike on MSF. But tucked into the report is a cryptic admission that the coalition did not “complete the necessary procedures used by the Coalition Forces” before undertaking the strike. This suggests that the coalition has not stuck to a deal it made with the United States to maintain U.S. support by properly vetting strikes, leaving the United States and its personnel legally exposed for continuing to support operations that violate international humanitarian law.
Topic:
International Law, Military Strategy, Humanitarian Crisis, and Air Force
Political Geography:
Middle East, Yemen, Saudi Arabia, North America, and United States of America

2. 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

3. 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

4. The Missing State Department Memo on US Officials’ Possible Aiding and Abetting Saudi War Crimes

Author:
Oona A. Hathaway
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Today the Senate Foreign Relations Committee is set to consider dueling bills on Saudi Arabia. A bill sponsored by Senator Robert Menendez (D-N.J.), would block arms sales to the Kingdom and in-flight refueling of Saudi aircraft. This largely mirrors a series of measures passed in the House on July 17 to block the sale of billions of dollars of arms to Saudi Arabia and the United Arab Emirates. But in an unusual move, Committee Chairman Jim Risch (R-Idaho) broke comity to put forward his own separate bill focused more narrowly on the killing of journalist Jamal Khashoggi that would merely deny visas to a few Saudi government officials and require that the secretary of state conduct a review of the United States’ relationship with the country. In all likelihood, this is the bill that will advance, allowing the U.S. sales of arms to Saudi Arabia to continue.
Topic:
Foreign Policy, International Law, International Trade and Finance, Arms Trade, and Humanitarian Crisis
Political Geography:
Middle East, Saudi Arabia, North America, and United States of America

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. UNCLOS Dispute Settlement in Context: The United States’ Record in International Arbitration Proceedings

Author:
Julia Brower, Christina Koningisor, Ryan Liss, and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The United Nations Convention for the Law of the Sea (UNCLOS) establishes a compulsory dispute settlement regime for resolving disagreements between member states. Critics of the Convention have argued that the mandatory dispute resolution provisions force member states to cede too much control over the dispute resolution process to an international body. They have also argued that the dispute resolution process is biased against the United States, and that the United States tends to fare poorly in international arbitration proceedings. This report addresses the first criticism by examining possible exceptions to mandatory dispute resolution provisions. At least one Annex VII tribunal has interpreted Article 281(1) of UNCLOS to permit states to contract around the mandatory dispute resolution provision through regional agreements. However, a subsequent tribunal applied a much more constrained interpretation of the Article 281 exception. Ultimately, the impact of this exception will depend upon which interpretation is applied. The report also examines the scope of the Article 298(1)(c) exception, which exempts from binding resolution “disputes in respect of which the Security Council . . . is exercising the functions assigned to it by the [U.N.] Charter.” This exception is not confined to specific subject matters, but it is limited by the procedural difficulties of adding or removing an item from the Security Council’s agenda, as well as by the political costs that such an effort entails. Finally, the report notes that UNCLOS’s compulsory dispute settlement regime is not accompanied by similarly robust enforcement provisions. The report addresses the second criticism by examining the United States’ record in arbitration proceedings under eighteen multilateral treaties containing mandatory dispute resolution provisions, as well as a series of bilateral aviation agreements that provide for mandatory dispute resolution. Fifteen of those agreements have yielded very few readily identifiable arbitration proceedings involving the United States.
Topic:
International Law, United Nations, Legal Theory, and Arbitration
Political Geography:
North America and United States of America