International Law and the ICTY

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International Law and the ICTY

• By Andrew Strong

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Introduction

• The law as it currently exists
• The problem all guerrilla movements may be
  illegal
• A better formulation of the law
• Law should match reality
• Problems with the new formulation can be managed

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Jus ad Bellum / Jus in Bello

• Jus ad Bellum Just War
• The motivations for entering a conflict are
  considered just by the international community
• Jus in Bello Just Means
• The methods used in a war the tactics,
  strategies, etc. are considered just by the
  international community

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ICTY Extending Jus in Bello

• With the formation of the ICTY and specifically
  the Tadic decision Jus in Bello can be applied to
  put an individual in jail

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Jus in Bello Responsibly Attacking Only
Justifiable Targets

• 1. Duty to discriminate
• Justifiable targets
• Combatants vs. Non-Combatants
• 2. Duty of Proportionality
• Means employed must be proportional to the
  objective.
• Killing a fly with a hand grenade

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Defining the Duty to Discriminate

• During an armed conflict individuals can be
  broken into three categories represented below.

Group A Clearly legal targets enemy soldiers,
paramilitary Group B Ambiguous targets regime
collaborators, informants, spies,
sympathizers Groups C Illegal targets
uninvolved civilians, innocent bystanders
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What is a Justifiable Target?

• Currently a justifiable target is governed by
  Common Article 3 of the 1949 Geneva Convention
  and 1977 Protocol II
• Restricts justified targets in an internal armed
  conflict to individuals taking an active part in
  the conflict

Group C clearly illegal targets Uninvolved
civilians and innocent bystanders
Group B Ambiguous targets collaborators,
informants, spies
Group A legal targets armed soldiers,
paramilitary
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Defining the Duty of Proportionality

• Means employed be a guerrilla must be
  proportional to the objective.
• Example
• An insurgent may launch a coordinated attack on
  the military barracks.
• The insurgent may not drive a truck of explosives
  into the station and blow up the block

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Putting the Two Together

• The casualty spillover into Group B implicates
  both a duty to discriminate and the duty of
  proportionality.
• Are the ambiguous victims combatants or
  non-combatants?
• Were they killed pursuing a legitimate target
  with proportional means

Group A legal targets armed soldiers,
paramilitary
Group B Ambiguous targets collaborators,
informants, spies
Group C clearly illegal targets Uninvolved
civilians and innocent bystanders
Casualties from insurgent attack
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Problems with the Current Approach

• Duty to Discriminate
• Armed Combatants are not the only legitimate
  threat to an insurgency,
• The relative strength of a regime compared to a
  guerrilla force can make regime informants and
  collaborators as deadly as armed combatants

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The current Duty to Discriminate effectively
makes every insurgency illegal!
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Sphere of guerrilla violence that is legally
justifiable should be proportional to
availability of other means of effecting change
and brutality of the regime.
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Measuring Alternatives to Violence and Regime
Brutality

• Measure as empirically as possible
• Neutral organizations such as Amnesty
  International produce such reports
• Average reports from half a dozen organizations

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Discriminating Targets

• During an armed conflict individuals can be
  broken into three categories represented below.

Group A Clearly legal targets enemy soldiers,
para-military, etc Group B Ambiguous targets
regime collaborators, informants,
sympathizers Groups C Illegal targets
uninvolved civilians, innocent bystanders
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What is a Justifiable Target?

• Restrict justifiable targets to Group A?
• Problematic because often a collaborator or
  informant can be as dangerous as a soldier.
• Individuals can fluidly move between rings
• X might be a combatant one minute, lay down his
  rifle and become a civilian the next, before
  picking up his rifle again.

Group C clearly illegal targets Uninvolved
civilians and innocent bystanders
Group B Ambiguous targets collaborators,
informants, spies
Group A legal targets soldiers, paramilitary,
etc.
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Restrict justifiable targets to Group A plus a
defined set of the most threatening individuals
from Group B?

• Problematic because the threat from Group B will
  vary depending on brutality of regime and
  alternative available means of dissent

Group B Ambiguous targets collaborators,
informants, spies
Group A legal targets soldiers, paramilitary,
etc.
Group C clearly illegal targets Uninvolved
civilians and innocent bystanders
Example If U.S. government is informed that
individual X is handing out leaflets calling for
a revolution, X may not be able to board an
airplane as easily and may have his/her phone
tapped. Thus the justifiable targets in the U.S.
would be narrower If the North Korean government
is informed that individual Y is doing the same
thing, Y could be killed. So the justifiable
targets A in North Korea would be broader
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Duty to Discriminate Varies
Line determining acceptable target should thus be
flexible and correspond to regime violence
towards dissidents and legal alternative means
available.
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Extending Things and Examples

• What the Iraq Insurgency looks like

Insurgent violence after the Interim Government
should be illegal as media sources are a viable
option and the governments brutality index
against any specific demographic is relatively low
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Extending Things and Examples

• What would be a justifiable pattern of violence
  for Iraq Insurgency

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Extending Things and Examples

• Contrast the Iraqi insurgency with the KLA
  insurgency

The insurgent violence in Kosovo could thus be
justified
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Extending Things

• Under this rubric, events such as Abu Graib and
  Guantanimo Bay should be taken very seriously as
  they could be used to justify a broader sphere of
  violence against the United States

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Extending Things and 9/11

• Theoretically, this rubric could be used to
  justify an event like 9/11 if it had happened in
  different country with an astronomical Brutality
  Index
• In a situation where a regimes brutality index
  was inconceivably high and all other channels of
  dissent (this would have to extend very far such
  as appearing in public) were closed.
• This scenario would be extremely unlikely
  however, it is possible.
• Consider Nazi Germany Under this theory, it
  could be justifiable if a German Jew flew a plane
  into a Nazi building.
• He/she would point out the regimes systematic
  murder of approximately 6,000,000 civilian Jews
  and the utter lack of any means of opposing the
  States policy.

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Moving from Law to Political Science Policy
Incentives

• Insurgency is less likely to occur in societies
  with open channels for expressing dissent and
  organizing opposition to a regime.
• Instead, other less risky means of effecting
  change will be employed

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Policy Incentives cont.

• Conversely, as regime violence towards
  dissidents increases, the likelihood of an armed
  insurgency increases.
• - If individuals know that they will be
  arrested for passing out pamphlets, they will
  pursue their goals via other means. Why not
  pass out Kalishnikovs?
• Linking justifiable guerrilla violence
  with regime brutality provides an incentive for
  the regime to deal with opposition responsibly
  and humanely.

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Linking This Theory To Jus Ad Bellum War
When
An Increased Brutality index
Justifies
Justifiable guerrilla violence
Increased guerrilla violence
The law would then justify conflicts against
repressive violent governments. An insurgency
against such a government is more likely to be
Jus Ad Bellum
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Problems

• What if alternative means of expressing dissent
  are blocked by a private party?
• 2004 pre-election America several accusations
  against media conglomerates that refused to air
  specific programs criticizing the government
  about to seek reelection
• Should that justify violence towards a private
  party? The Government? How to tell what role
  and to what degree the government is responsible?

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Problems Continued

• Similarly, what if brutality is carried out
  privately? Or through subtle government
  non-action?
• Violence towards African-Americans in Southern
  U.S.
• Governmental blacklist which costs an individual
  his job
• How is this measured?
• Should this be part of the calculus?

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Problems Continued

• If there is a flexible line, how is that judged
  immediately and not retroactively?

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Solutions

• Hold the government accountable for inaction
  where private suffocation of media outlets or
  private violence towards a specific group is
  apparent.
• Build this into the brutality index in a
  responsible way.
• Would encourage the government to control violent
  private groups and allow for a more transparent
  media

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Solutions Continued Where is the line?

• In any system, drawing a useful line between
  justifiable and illegal targets difficult.
• This approach offers a more realistic reflection
  of justifiable targets because it factors in the
  varying threat similar targets pose to an
  insurgency and the varying degree of risk
  insurgents face against different governments.

Group A legal targets soldiers, paramilitary,
etc.
Group B Ambiguous targets collaborators,
informants, spies
Justifiable Targets
Group C clearly illegal targets Uninvolved
civilians and innocent bystanders
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Solutions Continued Why a more realistic
approach is important.
Group A legal targets soldiers, paramilitary,
etc.

• If the line is not realistically drawn and the
  insurgent cannot accomplish his/her objective
  without violating international law, then the
  deterrent effect of the law is moot.
• Creating laws that better reflect the reality of
  an insurgents position can help ensure that the
  laws are followed.

Group B Ambiguous targets collaborators,
informants, spies
Justifiable targets
Group C clearly illegal targets Uninvolved
civilians and innocent bystanders