UK Armed Forces Personnel and the Legal Framework For Future Operations

Written evidence from the International Committee of the Red Cross

Executive summary

 

It is impossible to know exactly what future armed conflicts will look like. But today’s conflicts give us an indication of possible developments and trends, and at the same time an indication about the possible challenges that they pose to international humanitarian law (IHL)

First and foremost, the International Committee of the Red Cross (ICRC) is convinced that respect for IHL contributes to a better protection to the victims of armed conflict. Current IHL has withstood the test of time as a realistic body of law that finds a balance between military necessity and humanity. It is as relevant today as ever and there is no reason to believe that it will not continue to be the main body of law governing the conduct of parties in future armed conflicts.

This is not to deny that IHL is an evolving body of law and that some of its aspects need further strengthening, and this is particularly true of the area of compliance with IHL and the protection of persons deprived of liberty. The ICRC hopes that the United Kingdom will continue to actively participate in the discussions around these areas in order to find ways to better protect the victims of armed conflicts.

Challenges in new conflicts will arise, in particular, from the increased reliance on cyber operations and on other new technologies. It is important that the United Kingdom Armed Forces assess the lawfulness of new weapons, means or methods of warfare, as foreseen in Article 36 of Additional Protocol I to the Geneva Conventions. It is crucial that military operations conducted with new technologies comply with IHL, in particular the rules of distinction, proportionality and precaution.

It is likely that the United Kingdom will conduct a number of its future military operations under the auspices of a United Nations Security Council mandate (whether on its own or in coalition with other States). Also, a number of future military operations might be conducted with the understanding that they are "humanitarian" in nature or "to protect civilians". In this respect, it is important to recall that the mandate and the legitimacy of military operations are jus ad bellum issues. They have no bearing on the applicability of IHL to these operations, which depends on the IHL criteria that govern the classification of conflicts.

Recent conflicts have brought to light an issue of grave humanitarian concern which is the lack of respect for healthcare in armed conflict situations. IHL contains clear obligations on the duty to protect and care for the wounded and sick and the respect for the medical personnel, units and transports. With this in mind the ICRC has launched its project on "Health care in danger" (HCiD) aimed at improving the efficiency and delivery of effective and impartial health care in armed conflict and other emergencies.

Lastly, the ICRC calls for renewed efforts to ensure that IHL instruments are fully and universally implemented. This requires a commitment by States to take the necessary legislative action and to invest in adequate military training on IHL. Also, the establishment of the obligation to exercise universal jurisdiction for grave breaches found in the four Geneva Conventions of 1949 must be recalled as an important means to counter impunity for war crimes.

Introduction : The ICRC ’s m ission and r ole as guardian of IHL  

 

(1) Established in 1863, the International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. The ICRC is at the origin of the Geneva Conventions, the law applicable in situations of armed conflict and was entrusted the role of "guardian" of international humanitarian law (IHL) by the international community.

(2) The ICRC thus endeavours to prevent suffering by promoting and strengthening IHL and universal humanitarian principles. It does so by fostering an environment conducive to the respect for the life and dignity of persons affected by armed conflicts and other situations of violence; and respect for the ICRC’s work as well by reminding parties to the conflict of their IHL obligations.

(3) States Party to the Geneva Conventions of 1949 have an obligation to respect and ensure respect for the Conventions and make sure the law is widely known and understood. [1] The ICRC offers its expertise and practical experience of armed conflicts to help governments meet their responsibilities by passing legislation, instructing the armed forces and the police and promoting IHL widely.

(4) The inquiry into the United Kingdom Armed Forces personnel and the legal framework for future operations represents an opportunity for the ICRC to make a submission on account of its role in armed conflict as guardian of IHL. It is against this background that the ICRC is pleased to have the opportunity to submit to the United Kingdom Defence Select Committee its positions and recommendations on some aspects of IHL which appear of particular relevance in contemporary armed conflicts and require further thinking as the nature of armed conflicts and the means and methods of warfare evolve in the future. The submission outlines some of the challenges of IHL in today’s armed conflicts and concludes with some recommendations.

Specific IHL issues that may inform the next Defence and Security Review [2]  

 

1. Strengthening international humanitarian law (IHL)  

(5) It is the ICRC’s view that IHL remains the appropriate legal framework for ensuring protection of victims of armed conflicts; what is mostly needed is greater compliance with the existing rules, rather than adoption of new rules. However, the ICRC has identified serious challenges that need to be addressed. It has submitted these for the consideration of the 31st International Conference of the Red Cross and Red Crescent in 2011. [2] Following a request from the International Conference, [3] the ICRC is currently focusing on two priority areas on strengthening IHL: strengthening protection for persons deprived of their liberty in non-international armed conflict (NIAC) and strengthening overall compliance with IHL. [4]

1.1 The protection of persons deprived of their liberty in non - international armed conflict  

(6) Non-international armed conflict (NIAC) is the predominant form of conflict in the world today. However, there is a significant disparity between the robust and detailed provisions applicable to the deprivation of liberty in the context of international armed conflict (IAC), and the very basic rules codified for non-international armed conflict. While the Four Geneva Conventions contain over 175 provisions regulating detention in virtually all its aspects in relation to international armed conflicts, there is no comparable regime for non-international armed conflict. The very limited treaty rules applicable to non-international armed conflict cannot adequately respond to the myriad of legal and protection issues that arise in practice. This relative absence of specificity within IHL has led to uncertainty about the source and content of the rules governing detention in non-international armed conflict, and on-going discussion regarding the applicability and adequacy of human rights law, and the precise contours of customary IHL. Further reflection is needed to ensure that IHL remains practical and relevant in providing legal protection to all persons deprived of their liberty in relation to armed conflict. The ICRC has identified four key areas in which the law is in need of strengthening: (1) conditions of detention; (2) vulnerable categories of detainees; (3) transfer of detainees; and (4) grounds and procedures for internment. These four topics are highly relevant to detention carried out by the United Kingdom in current and future armed conflicts, in order to ensure that any detention is consistent with IHL.

(7) In 2012 and early 2013, the ICRC held four regional consultations with States, aimed at exploring whether and how the substantive rules of IHL in this area should be strengthened. In total, the regional consultations involved 170 government experts from 93 States (including the United Kingdom). The States have generally agreed with all the topics identified by the ICRC as key humanitarian concerns and with the need to address them. States clearly support there being an outcome of the process, and thus far most have generally expressed a preference for an outcome that is not legally binding. The ICRC is currently finalising publicly available reports on the consultations. Further consultations planned for 2014 will include more focused expert meetings on the four priority areas. Following all consultations, the ICRC will be preparing a report with options and its recommendations for consideration by the 2015 International Conference.

1.2 The mechanisms for monitoring compliance with IHL  

(8) Insufficient respect for applicable rules is the principal cause of suffering during armed conflicts. In recent years, the emphasis has been on developing criminal law procedures to prosecute and punish those who have committed serious violations of IHL. However, there remains an absence of effective means for identifying and halting violations while they are occurring. Contrary to most other branches of international law, IHL has only a limited number of mechanisms to ensure compliance with its norms. However, these mechanisms have not or have almost never been used in practice. Further, they only apply in cases of international armed conflict.

(9) Pursuant to the request by States at the 31st International Conference, [5] the ICRC and Switzerland are jointly leading consultations with States and other relevant actors on how to improve compliance with IHL through developing stronger international mechanisms. Through a series of consultations with States throughout 2012 and 2013 (in which the United Kingdom has participated actively), States have agreed that lack of compliance with IHL is a major concern and affirmed the need for more work to address this. Upcoming consultations in 2013-2014 will focus on four priority areas identified by States: periodic reporting on national compliance with IHL, thematic discussions on IHL issues, fact-finding and a regular Meeting of States, as an anchor for other elements of a possible IHL compliance system.

2. N ew technologies , weapons, means and methods of warfare  

(10) There is no doubt that IHL applies to new technologies developed and used in armed conflict. Any new weapon, means or method of warfare must be capable of being used in compliance with the rules of IHL and States are obliged under existing law to assess the legality of the new weapons they wish to develop or acquire (see Art. 36 AP I).

(11) The development and use of new technologies can challenge and influence the application and interpretation of IHL. Applying the law’s rules to a new technology often raises the question of whether such rules are sufficiently clear in light of the technology's specific characteristics, and with regard to the foreseeable humanitarian impact on civilians. Developments in relation to cyber-warfare, drones, autonomous weapons systems and incapacitating chemical agents are of particular concern to the ICRC.

2.1 Cyber warfare  

(12) The growing number of States developing cyber capabilities reinforces the ICRC's humanitarian concerns about cyber warfare – that is, means and methods of warfare that consist of cyber operations amounting to, or conducted in the context of, an armed conflict, within the meaning of IHL. It appears that cyber-attacks against transportation systems, electricity networks, dams, and chemical or nuclear plants are technically possible. Such attacks could have wide-reaching consequences and cause many civilian casualties. Furthermore, given the interconnectivity of cyber space, the attacking party might be incapable of distinguishing between military and civilian computer networks when launching a cyber-attack. It might also be difficult to evaluate the indirect effects on civilian networks if military networks are attacked. These challenges underline the necessity to be extremely cautious when resorting to cyber-attacks. They also underscore the importance that States that would develop or acquire cyber warfare capabilities assess their lawfulness under IHL, as for any new weapons, means or methods of warfare. It is indeed crucial to uphold the rules of IHL, which cyber operations must comply with, in particular the rules of distinction, proportionality and precaution. This is not to deny that there might be a need to develop the law further as technologies evolve or their human cost is better understood. That will ultimately have to be determined by States. The United Kingdom government has announced that it is developing its cyber capabilities, and the ICRC is pleased that it has been able to start a dialogue with the authorities on the legal and humanitarian implications of cyber warfare.

2.2 Drones  

(13) An armed drone is a remotely piloted aircraft, e.g. a weapon platform that is not as such unlawful under IHL. While armed drones allow combatants to be physically absent from the "battlefield" they remain under the control of human operators at all times and are, in this respect, similar to manned weapons platforms such as helicopters or other combat aircraft.

(14) There is currently a lot of controversy about the lawfulness of the extraterritorial use of force by drones. Beyond the jus ad bellum questions, extraterritorial use of force by drones can be governed either by IHL or by international human rights law and the relevant domestic law, depending on whether the situation in which they are used amounts to an armed conflict or not. The geographic reach of IHL when drones are used extraterritorially has become a matter of debate. It is important that this issue continue to be discussed and clarified among States. In the view of the ICRC there is no "one-size-fits-all" approach. The ICRC takes a case-by-case approach in determining which body of law is applicable to which situation of violence and, consequently, which rules have to be followed.

(15) Furthermore, it is important to get more clarity in the factual debate surrounding drones. Advocates of the use of drones argue that they have made attacks more precise and that this has resulted in fewer casualties and less destruction. But it has also been asserted that drone attacks have erroneously killed or injured civilians on too many occasions.

(16) In light of the legal and humanitarian implications of the use of force by drones –and of the importance to carefully monitor such consequences, [6] the ICRC urges States to abide by IHL when they use force by drones in armed conflict situations, bearing in mind that not all use of force by drones implies a situation of armed conflict.

2.3 Automated and autonomous weapons  

(17) Armed conflicts today see increasing use of automated weapons, and research is on-going to develop autonomous weapon systems. The trend towards decreasing human oversight of weapon systems raises serious legal, ethical and societal concerns. An automated weapon is one that is able to function in a self-contained and independent manner although it may initially be deployed or directed by a human operator. A central challenge is to ensure that such weapons are capable of the level of discrimination required by IHL. Autonomous weapon systems (lethal autonomous robots) would search for, identify and attack targets, including human beings, using lethal force without any human operator intervening. The ICRC is urging all States to consider the fundamental legal, ethical and societal issues before autonomous weapons are developed and/or deployed in armed conflict, as required by IHL. [7]

2.4 Chemical weapons: Use of toxic chemicals as weapons for law enforcement purposes  

(18) The use of chemical weapons is prohibited in armed conflict. Persistent military and law enforcement interest in using highly toxic chemicals as weapons (e.g. dangerous anaesthetic drugs) raises serious health and legal concerns. In February 2013 the ICRC called on all States to limit the use of toxic chemicals as weapons for law enforcement purposes to riot control agents (i.e. ‘tear gas’) only, [8] as permitted under the Chemical Weapons Convention. [9] Legitimate use of riot control agents may include use by military forces performing law enforcement functions. [10] Over 10 years ago the United Kingdom articulated a position similar to that of the ICRC, [11] in April 2013 the United Kingdom argued that States "…should work together to establish a norm to discourage the use of chemicals more toxic than riot control agents for law enforcement…". [12] While the established practice of virtually all States is to limit the use of toxic chemicals for law enforcement operations to riot control agents only, there remains ambiguity in the current United Kingdom position. The United Kingdom should clarify its view on this matter.

3. Notion of " armed conflict " and scope of application of IHL  

(19) It is likely that the United Kingdom armed forces will conduct many, if not most, of its military operations pursuant to a mandate given by the UN Security Council (UNSC) and in coalition with other States. Also, a number of the United Kingdom’s military operations might be conducted with the understanding that they are "humanitarian" in nature, or conducted to protect civilians.

(20) In this respect, it has sometimes been argued that armed forces mandated by the Security Council cannot be qualified as belligerents within the meaning of IHL, as their sole objective is the restoration and preservation of international peace and security or, on occasion, the protection of civilians; and that accordingly, IHL is not applicable as such and de jure to such operations. It has also been argued that so-called "humanitarian" operations do not amount to armed conflicts governed by IHL. Similarly, it has been argued that a higher threshold of intensity would be required in order to determine that armed forces authorized by the UNSC have become party to an armed conflict.

(21) This position ignores the longstanding distinction between jus in bello and jus ad bellum and the fact that the applicability of IHL to armed forces depends on the factual circumstances prevailing on the ground and on the fulfilment of specific legal conditions, namely the IHL criteria for the classification of armed conflicts. The mandate and the legitimacy of a mission entrusted to these forces by the UNSC are jus ad bellum issues and have no bearing on the applicability of IHL to them.

(22) Thus, States that conduct military operations (with or without a UNSC mandate) become party to an international armed conflict as soon as they resort to force against one or more States, irrespective of the duration and intensity of the armed violence (common article 2 to the Geneva Conventions). States become party to a non-international armed conflict once they are opposed to organized armed group(s) during armed confrontations reaching a sufficient level of intensity.

(23) In relation to non-international armed conflict, it is also worth mentioning the specific situation when States intervene in a pre-existing non-international armed conflict - as for instance the one that opposes the Afghan government to the armed opposition groups in Afghanistan. In such circumstances, the intervening State may become party to the armed conflict on the basis of the nature of the support they provide to one of the belligerents, even if the operation by itself would not reach the threshold of intensity required for NIACs. This is because by grafting its military actions onto a pre-existing conflict, which already reaches the threshold of violence of NIAC, it cannot conduct military actions without being bound by IHL. The intervening State will become involved as a co-belligerent if this involvement consists in actions related to the conduct of hostilities undertaken in support to a party to that non-international armed conflict.

4. Health care in armed conflict - p rotection of the wounded and sick, and medical personnel, units and transports  

(24) IHL requires that the wounded and sick, whether civilian or military, including wounded fighters, must be respected and protected in all circumstances and must receive impartial medical care. Parties to the armed conflict must also search for, collect and evacuate any wounded and sick without delay. These are obligations of means, subject to the best efforts in terms of the prevailing security situation and capacities. The ICRC believes that the best efforts to discharge these obligations include permitting impartial humanitarian organisations to assist in these tasks when the parties themselves are unable or unwilling to fulfil their obligations. While such medical relief operations require consent from the parties to the conflict -except in situations of occupation-, such consent must not be denied or limited arbitrarily.

(25) In contemporary armed conflicts, the ICRC has repeatedly witnessed collateral damage to medical personnel and objects, especially when military operations are carried out in densely populated areas and military objectives are in the vicinity of such specially protected persons and objects. These circumstances underline the specific importance of respecting the rules on distinction, proportionality and precautions required by the obligations to respect and protect medical personnel and objects, and the prohibition of attacking them, unless they commit, or are used to commit, acts harmful to the enemy, outside their humanitarian functions. In the ICRC’s view, any assessment of the expected incidental harm under the rule of proportionality must take into account potential harm among all medical personnel and objects, including military medical ones.

(26) The ICRC has also witnessed some checkpoint controls and armed entries into medical units by parties to the conflict which had the negative effects of patients not receiving the necessary medical care and medical personnel and facilities prevented from functioning. Parties to the conflict are generally not prevented from performing security checks for medical transports or from interrogating and arresting persons inside medical units for imperative reasons of security. But the obligations to respect and protect the wounded and sick, medical personnel and objects require parties to the conflict to have appropriate doctrine and practical procedures in place to mitigate the impact of these measures on the delivery of impartial health care.

(27) With these challenges in mind, the ICRC, as part of its Health Care in Danger (HCiD) project aimed at improving security and delivery of impartial health care, has been engaging States on strengthening military practice and doctrine on ground evacuations of wounded and sick, including on the issue of checkpoints; on search operations in health-care facilities; on precautions in attack and defence to avoid harm to medical personnel and objects; and on the use of the protective emblems. A workshop on these issues will be held in Sydney in December 2013 with military experts, and preliminary consultations with military experts have shown that specific military doctrine on these issues is lacking. [13]

5. P romotion of IHL into domestic legislation and practice (training, national legislation, military policy)  

(28) The implementation of IHL is an on-going process that requires continuing efforts by State authorities.

(29) From a legislative perspective, the ICRC is fully aware that the drafting, parliamentary vetting and adoption of any new laws are exercises that can be fraught with frustrations, capacity constraints and delays. Moreover, in these days of economic turmoil, it is arguably understandable that calls to push through laws to give effect to such instruments as the Geneva Conventions, and treaties regulating conventional weapons, including chemical and biological weapons, will not necessarily be heard, let alone embraced as priorities by Governments.

(30) However, it is exactly because of the times we now live in, with numerous on-going armed conflicts, many with serious humanitarian consequences, that efforts need to be redoubled to ensure that IHL instruments are fully and universally implemented, and fundamental IHL norms respected in conflicts. States are to be encouraged to meet their obligations under IHL treaties, both through legislative action but also in terms of military training. Where possible, States with greater means, such as the United Kingdom, should strive to provide support to other Common law jurisdictions and military partners in the form of capacity building and technical advice to improve universal implementation of and respect for IHL.

(31) Ratifying IHL or international human rights law (IHRL) treaties, implementing them in domestic law, and disseminating them are indeed essential steps, but not the end of the story. The behaviour of armed forces during operations is shaped by four broad factors: (1) doctrine, (2) education and training, (3) equipment, and (4) sanctions. In order to enhance compliance during military operations, the law must therefore become an integral part of all four factors – what the ICRC describes as the integration cycle. To support States in their endeavour to integrate the law, the ICRC provides tailored guidance and assistance.

(32) Similarly, the ICRC will continue to provide assistance to States Parties for the development of national implementing legislation. The ICRC has developed a number of tools to assist States in the development of their national implementing legislation, including model laws on specific issues. The ICRC also works closely with National International Humanitarian Law Committees or similar inter-ministerial advisory bodies which have been established by Governments in 104 countries worldwide, including in the United Kingdom.

6. U niversal jurisdiction  

(33) Universal jurisdiction is an essential tool for bringing to justice perpetrators of war crimes, crimes against humanity and genocide. The basis for universal jurisdiction over serious violations of IHL can be found both in treaty law and in customary IHL. The treaty basis for universal jurisdiction over war crimes was laid down in the 1949 Geneva Conventions for the protection of war victims in relation to those violations of the Conventions defined as grave breaches and expanded with AP I. Whilst the Geneva Conventions do not expressly state that jurisdiction is to be asserted regardless of the place of the offence, they have generally been interpreted as providing for universal jurisdiction.

(34) Moreover, although the relevant provisions of the Geneva Conventions and AP I are restricted to ‘grave breaches’, State practice has confirmed as a norm of customary IHL the rule that States have the right to vest their courts with universal jurisdiction over all violations of the laws and customs of war that constitute war crimes . [14] This includes serious violations during non-international armed conflict of Article 3 common to the Geneva Conventions and of Additional Protocol II of 1977, as well as other war crimes, such as those recognized in Article 8 of the Statute of the International Criminal Court.

(35) A number of other IHL related instruments provide a similar obligation for States to vest universal jurisdiction over certain crimes when they are committed during armed conflict. These include the Second Protocol of 1999 to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

(36) Under IHL, it remains the responsibility of States to bring to justice those who commit serious violations of IHL. In some instances though, States may be unable or unwilling to prosecute their citizens or other individuals who committed such crimes on their territory or under their jurisdiction. State practice has shown that, where international courts are unable to act, the exercise of universal jurisdiction by other States can be effective in overcoming this impunity gap. The ICRC thus encourages greater use of the exercise of universal jurisdiction to overcome any deficit in the repression by States for war crimes committed locally.

Recommendations  

 

In view of the recommendations that will inform the United Kingdom Armed Forces Covenant and the development of the Strategic Defence and Security Review, the ICRC recommends that the United Kingdom :

· Continue to participate actively in the ICRC-led consultations on strengthening legal protection for persons deprived of their liberty in non-international armed conflict.

· Continue to participate actively in the ICRC-led consultations on strengthening compliance with IHL.

· Explore the legal implications of current and future automated weapons, and carefully consider the fundamental legal, ethical and societal issues posed by the potential development of autonomous weapons sy stems before they are developed or deployed.

· Confirm a national policy that riot control agents are the only toxic chemical permitted for law enforcement purposes and confirm this interpretation of its national legislation (or amend the legislation if necessary).

· Carefully analyse the legal implications and possible humanitarian consequences of the use of cyber weapons and - building on the United Kingdom’s public assertion that IHL applies to cyber warfare - adopt positions that uphold the protection of IHL for victims of armed conflicts, and share these positions publicly.

· Carefully analyse the legal implications and possible humanitarian consequences of the extraterritorial use of force by drones so as to be compliant with the applicable legal framework in each circumstance (IHL or other bodies of law, depending on whether the situation is one of armed conflict or not).

· Apply the legal criteria for IHL applicability in accordance with the relevant provisions of this body of law to all its military operations.

· Contribute to the reflections that result from preliminary consultations already conducted, including with UK military medical experts, that indicate the need for further work on specific military doctrine in the area of healthcare in armed conflict, both internally in the United Kingdom and more globally, and favour participation at a military expert workshop in Sydney in December 2013.

· Enhance the integration of the IHL governing military operations into doctrine, education, training and equipment, and ensure that they are governed by an effective sanction system.

· Encourage greater use of the exercise of universal jurisdiction to overcome any deficit in the repression by States for war crimes committed locally.

28 October 2013