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The Law of Armed Conflict in Practice: Prima-facie Charges & New Defenses. The charging of Iraqi insurgents with war crimes and the defense theories that may be asserted. J. Justin Boyd Chicago-Kent College of Law. Timeline. Charge the Insurgent Find positive law Make a prima facie case

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the law of armed conflict in practice prima facie charges new defenses

The Law of Armed Conflict in Practice: Prima-facie Charges & New Defenses

The charging of Iraqi insurgents with war crimes and the defense theories that may be asserted.

J. Justin Boyd

Chicago-Kent College of Law

timeline
Timeline
  • Charge the Insurgent
    • Find positive law
    • Make a prima facie case
  • Try the Insurgent
    • Insurgent defenses to the charges
  • Conclusion
    • Little bit of policy, why we care
charging insurgents
Charging Insurgents
  • 18 USC § 2441 - War Crimes Act 1996

“Whoever, whether inside or outside the United States, commits a war crime…[and the circumstances are such] that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States” shall be subject to fines, imprisonment and/or death.

This gives a District Court personal jurisdiction over any war criminal anywhere in the world who kills an American.

charging insurgents4
Charging Insurgents
  • The next question is, what war crime will the insurgent be charged with?
  • 18 USC § 2441 lists war crimes as any conduct that is:
    • defined as a “grave breach” of the 1949 Geneva Conventions
    • violation of Common Article 3 of the Geneva Conventions
    • prohibited by the Hague Convention IV, 1907
    • violates the prohibitions against mines and booby-traps
charging insurgents5
Charging Insurgents
  • The Geneva Convention Common Article 3
      • During an internal armed conflict, banned conduct includes:
        • Hostage taking &
        • Murder of civilians
  • “Grave Breach” of the Geneva Conventions
      • In any armed conflict:
        • Murder, torture or inhuman treatment, excessive destruction, not justified by military necessity and carried out unlawfully and wantonly.
charging insurgents6
Charging Insurgents
  • So what charge…?

MURDER

A grave breach of the Geneva Conventions

charging insurgents7
Charging Insurgents
  • Making the Prima Facie Charge for a War Crime of Murder
      • Iraqi War is an international armed conflict which falls under the umbrella of the Geneva Conventions
      • A War Crime has been committed
        • Murder of civilian contractors and soldiers

and …

charging insurgents8
Charging Insurgents
  • Prima Facie War Crime of Murder Continued
    • The people murdered were US nationals or members of the armed forces.
      • “…victim of such war crime is a member of the Armed Forces of the United States or a national of the United States…”18 USC § 2441
      • Both soldiers and civilians, such as reporters and contractors.
charging insurgents9
Charging Insurgents
  • Assuming:
      • A captured insurgent on trial and there is no issue of the killing of an American during an armed conflict…
      • … the insurgent must claim that the killing was lawful. In this case, privileged under international law of war.
timeline10
Timeline
  • Charge the Insurgent
    • Find positive law
    • Make a prima facie case
  • Try the Insurgent
    • Insurgent defenses to the charges

But first, a little primer on the law of war…

law of war aside
Jus ad bellum

Right to make war

Jus in bello

Rules for fighting

In General…

If you are a legitimate combatant, fighting in a legitimate armed conflict, then you must follow the rules. These rules include the Principle of Distinction & Proportionality, together these limit what you can target and what means you can use against targets. Any killing done pursuant to these rules is privileged and therefore, not the war crime of murder.

Law of War - Aside
law of war aside12
Principle of Distinction

The purpose of Distinction is to limit civilian casualties during a conflict

To that end, it protects civilians and other noncombatants from being directly targeted

Civilian casualties collateral to a lawful attack may happen

Law of War - Aside
law of war aside13
Principle of Distinction

Problem:

This law of war groups all civilians together. However, in modern warfare it is hard to distinguish between civilians and combatants. e.g. Iraq we have civilian contractors, private security forces, paramilitary police, the insurgents themselves, etc.

Who is fighting? Who is a civilian?

Law of War - Aside
try the insurgent
Try the Insurgent
  • For the insurgent to make a defense…
      • The insurgent must show that the target selected conformed to the principle of distinction or some other privilege
      • If the killing was privileged, it is not murder and therefore not a war crime

… this is where the theories come into play…

try the insurgent15
Try the Insurgent
  • Theories of defense to a war crime murder charge:
  • Principle of Culpability
      • Gabriel Swiney - Student, Oxford University
  • Brutality Index
      • Andrew Strong - Student, Chicago-Kent
  • Threat Assessment
      • Dean Perritt - Professor of Law, Chicago-Kent
try the insurgent16
Try the Insurgent

“Principle of Culpability” - Swiney

  • This defense theory focuses on the target’s association with the conflict. (Distinction)
  • In general…
    • It is impermissible to intentionally attack civilians or civilian objects unless the target voluntarily:

1. Enters or remains in a contested area or area of combat, and

2. Performs actions intended to achieve military goals of the combatants

try the insurgent17
Try the Insurgent

“Principle of Culpability” - Swiney

  • Policy reasons:
      • Does not look at civilians as a group.
      • Puts people on notice, if they want to stay safe, stay away
try the insurgent18
Try the Insurgent

“Principle of Culpability” - Swiney

  • Use in Defense:
    • The insurgent would have to show that the person killed was furthering a military objective in a military zone
    • e.g. a contractor fixing a communication line between a field unit and HQ, or a civilian collaborator who discloses insurgent strongholds.
try the insurgent19
Try the Insurgent

“Brutality Index” - Strong

  • Focuses on both the rational for attack and acceptable targets.
    • In general…
      • The more brutal the opponent the more legitimate targets available.
try the insurgent20
Try the Insurgent

“Brutality Index” - Strong

  • How is brutality measured?
      • “Sphere of guerrilla violence that is legally justifiable should be proportional to availability of other means of effecting change and brutality of the regime.“ - Strong
      • These other means could consist of things like openness of the opponent’s regime and or availability of the political process.
      • An empirical measurement created by international monitoring bodies
try the insurgent21
Try the Insurgent

“Brutality Index” - Strong

Regime

Brutality

Available

alternatives to

violence

try the insurgent22
Try the Insurgent

“Brutality Index” - Strong

Principle of Distinction and Acceptable targets:

The more brutal the regime, the more targets are available. Therefore, an insurgent against a brutal regime could attack group B.

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try the insurgent23
Try the Insurgent

“Brutality Index” - Strong

  • Use in defense:

The insurgent would have to show that:

      • The current regime was oppressive
      • There was no outlet for change to either the government or policy
      • The target selected was within the sphere of acceptable targets, as determined by the brutality index
try the insurgent24
Try the Insurgent

“Threat Assessment” - Perritt

  • In general…
    • The privilege to kill is proportional to the threat.
try the insurgent25
Try the Insurgent

“Threat Assessment” - Perritt

  • A more fact sensitive approach:
    • The realities of modern warfare are such that clear distinctions between legitimate and non-legitimate targets cannot easily be drawn.
    • We must look at who did the killing, what was the rationale and how necessary was it.
      • Still requires that the insurgent follows distinction and proportionality
try the insurgent26
Try the Insurgent

“Threat Assessment” - Perritt

  • Analysis:
      • First, how dangerous a threat to the insurgent or the insurgent’s operation did the target pose.
      • Second, were there any other methods available to eliminate the threat. e.g. detention, moving to another area.
try the insurgent27
Try the Insurgent

“Threat Assessment” - Perritt

  • Use in defense:

The insurgent would have to show that:

      • That the target killed was a threat to their existence or success
      • Killing was the best/only means for eliminating the threat.
conclusion
Conclusion

Why not just string ‘em all up?

conclusion29
Conclusion

Some Insurgencies should be legitimate, as shown by the brutality index. We should encourage that type of behavior.

conclusion30
Conclusion

But the principle of distinction is too restrictive…

  • “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” - Strong

conclusion31
Conclusion

If we tell insurgents that all their actions are illegal, they will have less incentive to restrict their tactics and civilian casualties.

conclusion32
Conclusion

So we can encourage good insurgents and still allow prosecutors to convict war criminals.