Month: November 2016

“Africa’s time”: Team members reflect on SE Model African Union summit

logoIt’s our pleasure today to publish this post, jointly written by the Georgia Law team that last week was named Best Delegation at the Southeast Model African Union, and so is eligible to compete in the 35th annual national competition in February in Washington, D.C. The 6 students on the team each won individual achievement awards at the event, which was hosted by the University of Georgia African Studies Institute and cosponsored by the law school’s Dean Rusk International Law Center. They write:

Introduction

“This is Africa’s time.”

So said the keynote speaker and Honorary Consul of Sierra Leone, Cynthia Jarrett-Thorpe, to delegates at the 20th Annual Southeast Model African Union, This was the beginning of what turned out to be an eventful competition. Over the course of the next 2-1/2 days we would be tasked with working together in various negotiations, in order to provide solutions to complex situations on behalf of the country we represented, the Republic of Niger.

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► Rebecca Wackym left, listens to statement by delegate from South Sudan

► Rebecca Wackym, 1L, Executive Council

My role as a delegate for the Republic of Niger in the Executive Council was not only as an advocate for the interests of Niger, but also a servant to the interests of the entirety of the African Union. As a member of the Executive Council, I was not required to draft or advocate for a resolution. I introduced a hypothetical crisis situation caused by Boko Haram to the committees, who then had to create resolutions to solve the crisis.

Regarding the process, I had to work with other delegates in the Executive Council to first decide on how to setup the crisis in a way that would guide them to a solution while simultaneously, allowing each committee to achieve the goals set forth in the Union’s Agenda 2063.

The Executive Council ferociously debated how we wanted to achieve these goals in the context of the Boko Haram crisis. For example, we contemplated:

  • Would we ask the Committee on Peace and Security to involve states with more resources to combat Boko Haram?
  • Would we rather rely on our own resources, even though we had far less than the Americans?

I had to advocate for a position that struck a balance between safety and sovereignty of Niger and the goals of the Agenda. We eventually negotiated an agreement to ask the committees to formulate plans in a tiered manner, which put the African Union’s sovereignty first, but allowed for support outside of the Union.

However, our work did not end with tasking the committees. We also were tasked with creating a final report, called a “communiqué.” We had discretion to adopt an entire committee’s resolution, or certain parts, or to scrap the entire resolution and draft our own. At this point, we divided into groups so that we could discuss the edits, if any, that we wanted to make to the resolution. I was asked to look over the Committee on Democracy, Governance, and Human Rights’ resolution because the other delegates believed that my whole t3 months in law school afforded me more expertise in regards to judicial reform in the African Union. Drafting the communiqué might have been one of most hectic couple of hours, but with exceptional teamwork we churned out a comprehensive report.

My takeaway from this experience is that the diplomatic system works well when all the parties decide put the interest in solving the crisis above their own individual interests. The Executive Council ran efficiently when we all saw each other as colleagues working towards a common goal rather than a competition of whose interest would be given most prominence.

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From left, team members Shummi Chowdhury, Amanda Hoefer, and Chanel Chauvet

► Amanda Hoefer, 1L, Committee on Democracy, Governance and Human Rights

I was fortunate enough to be able to participate in the 2016 Southeastern Model African Union Competition held at UGA, with the support of both the Dean Rusk International Law Center and the UGA Department of African Studies. I represented the Republic of Niger in the Committee on Democracy, Governance, and Human Rights, and helped with the drafting of four resolutions, addressing a wide spectrum of issues, including the scope and jurisdiction of the African Court on Human and Peoples’ Rights, the use of transitional justice as a means of compensating victims of human rights abuses, the reduction of corruption throughout the continent, and the African Union’s role in promoting economic growth throughout the diaspora.

The most rewarding aspect of this experience was working with undergraduate students with little experience in mock diplomacy; having participated in Model United Nations in high school, I was able to use my rusty knowledge of parliamentary procedure to help steer my fellow delegates to a rewarding and enriching resolution. Diplomacy competitions are an incredible opportunity to flex your teamwork muscles and to collaborate on creative solutions to complex problems; in a word, competitions like SEMAU are empowering. I enjoyed watching those in my committee who had never participated in a similar competition become increasingly confident in their public speaking and critical thinking skills, and loved having a chance to dig into complicated diplomatic problems myself.

I also enjoyed having the chance to learn about African culture and politics, having never had a particular opportunity to immerse myself in the topic before this competition. While preparing for the competition during the Fall semester of my 1L year was a bit stressful, my inner-diplomacy nerd jumped at the opportunity to do some research about Niger and the AU, and to delve into the complex policy problems that we were asked to face. I’m incredibly grateful to both Georgia Law’s Dean Rusk International Law Center and the University of Georgia African Studies Institute for their patronage and support in this endeavor, and look forward to competing again at the national competition in February.

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On behalf of Niger, Johann Ebongom (center) joins in discussion

► Johann Ebongom, LLM, Committee on Economic Matters

The Model African Union is known as a competition in which student delegates represent their selected countries and develop an understanding of African issues from an African perspective. Practically speaking, the Model African Union is a simulation of the African Union Summit which occurs twice a year in Africa.

At the 20th annual Southeastern Model African Union competition, I had the opportunity to participate in the Economic Matters Committee. We convened on the afternoon of November 3, to discuss on two main agenda topics:

  • Promoting a balanced and inclusive economic growth: aspirations and implementation
  • Promoting a sustainable ecosystem and climate resilient economies: aspirations and implementation

The objective was to debate and engage in diplomatic principles and standards to ultimately resolve major economic issues currently harming African countries. Some of these issues include concerns of water resources and agricultural development, management of mineral resources, debt relief, energy and development, multilateral trade negotiations, and food security. The committee created a resolution that represented the majority opinion of the different countries present. Following negotiations, we presented the resolution to Heads of State and Government during the General Assembly on the last day of the event for their final approval.

The Delegation of Niger recognized that despite a sustained agricultural productivity growth, a large number of households continue to face food insecurity and malnutrition problems due to on-site effects of soil degradation and the mismanagement of revenues from the exportation of the continent’s natural resources. At this point, it was clear that our challenge would not only be that of enhancing our agricultural production to meet the increased food demands of the expanding population, but also to focus on the judicious use of soils in order to promote a sustained productivity in the foreseeable future.

Niger promoted the implementation of a tax, on the total revenue from natural and agricultural resources exportation, which would be deposited and managed at the level of the African Union through an African Fund for Development. The funds would then be distributed back across the continent to support integration-related projects which will lead to the inclusive economic growth of the continent. Niger supported this motion using the slogan:

“Give what you own for the benefit of the continent!”

Niger also reminded the delegation about the importance of a collective solution that would benefit the 54 African countries. We also urged the honorable house to vote for a resolution that will take into account the effects of the current Boko Haram security issue, which directly affects the economy of a number of western African countries, including Nigeria, Cameroon, Chad, and Niger. Niger was leading the negotiations and after long hours, a compromise was found! The resolution was adopted by a 2/3 majority of the house.

I had the honor of being promoted by the organizers of the competition as a “Parliamentarian Dais” for the rest of the session. As such, my role was to ensure the respect of for the rules and proceedings during the working session, and advise the Chair in maintaining the parliamentary order during the debates. I also had the opportunity to fill this role during the General Assembly of Heads of State and Government on November 5, 2016.

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► Nelly Ndounteng, right, seeks to intervene on behalf of Niger

► Nelly Ndounteng, LLM, Committee on Social Matters

The 20th Southeast Model African Union (SEMAU) competition was a noble experience for me. I am delighted to have represented the law school as the Republic of Niger in this conference. As the representative for the Committee on Social Matters, I was tasked with the responsibility of providing a solution to:

  • Empowering the African Woman and Eliminating All Forms of Violence and Discrimination (Social Economic, Political) Against Women and Girls.
  • Eliminating Youth Unemployment and Promoting the Creativity, Energy and Innovation of African Youth as the Driving Force Behind the Continent’s Transformation.

I was especially excited to work on the sub-topic that dealt with African women because it required the committee to resolve matters concerning hardship, inequality and degradation suffered as a result of male counterparts.
It was my first experience using parliamentary procedure, and I must say I enjoyed every bit of it. During the first session, I decided to observe the proceedings in order to see how procedure was carried out. Once I was comfortable, I began participating, and later, took the lead, which made the whole experience more exciting for me.

My sincere appreciation goes to the founder of SEMAU, the organizers and most importantly, the Dean Rusk International Law Center for allowing me this great opportunity to promote Africa’s development.

► Shummi Chowdhury, 1L, Committee on Pan-Africanism and Continental Unity

The Southeast Model African Union Competition (SEMAU) proved to be an eventful and rich learning experience to kick off my 1L career. I participated on the Pan-Africanism Committee as the delegate for the Republic of Niger. One of the important tasks we faced on the first two days of the competition was to read and scrutinize the resolutions from all the countries represented, and then engage in debate over the merits and drafting of the resolutions. Having been exposed to the concise and effective style of legal writing, I took an active role in drafting the two main consolidated resolutions that passed through our committee. This competition helped me reflect on my newly acquired skills and for the first time appreciate that all the work spent on my courses thus far actually have substantial application outside the classroom.

nigerThe part I enjoyed most during the competition however was in the negotiations that occurred. Everyone had a resolution, or an idea that they wished to promote. For me, I focused on human trafficking as it affects Niger, particularly in light of the Boko Haram crisis. In order to get my ideas drafted into a resolution, I had to work the room and speak to different delegates to find common ground and similar interests. I thoroughly enjoyed the process of negotiating and coming together with distinct parties to draft a resolution that satisfactorily acknowledged differing goals in a coherent manner.

Though the competition occurred in November, which is a very busy time for 1L students, I have no regrets and am thankful to have had the opportunity to participate. It really forced me to manage my time, so that I could focus on the competition and also stay on top of all the schoolwork and studying that is required to be successful in law school.

► Chanel Chauvet, 2L, Committee on Peace and Security

As the delegate for the Republic of Niger in the Committee on Peace and Security, I was engaged in the intricate task of educating and debating my fellow delegates about the impact of Boko Haram and al-Qaeda within my state. According to the United Nations, more than 20,000 people have been killed, and 2.2 million people have been internally displaced as a result of the Boko Haram and al-Qaeda.

My primary focus however, involved the potential remedies that the African Union could provide through the use of education. One of the solutions that Niger emphasized in accordance to the “Achieving Freedom From Armed Conflict, Terrorism, Extremism and Intolerance by 2063: Aspirations and ecowasImplementation” topic was the implementation of international humanitarian law (IHL) within school and military curriculums. The International Committee of the Red Cross (ICRC) and Economic Community of West African States (ECOWAS) have considered how treaties related to IHL can be strengthened through the legal system, as detailed here; however, the organizations have yet to explore these other avenues of implementation. Educating the youth about the legal protections and obligations of parties involved and affected by conflict would ultimately serve to generate respect for treaties that promote IHL and prevent conflict.

Perhaps, what was the most difficult part about the committee process for me was the need to use of parliamentary procedure in order to communicate my points effectively to the other delegates. This required extensive knowledge of the rules and procedure, in order to redirect the committee to certain point favorable to my country. Fortunately, our team had laboriously practiced parliamentary procedure in the weeks leading up to the competition, so we were well-prepared.

Conclusion

Overall, we are grateful for this experience, and pleased with our team performance. We managed to earn the “Best Delegation” award, in addition to numerous individual awards.

We would like to express our sincere gratitude to the Dean Rusk International Law Center at the University of Georgia School of Law and our faculty advisor for extending this opportunity to us. We would also like to thank the African Studies Institute at UGA and its Director for his assistance.

Third-party funding a focus of Atlanta international arbitration conference

meganIt’s our pleasure today to publish this post by Megan Alpert, a member of Georgia Law’s J.D. Class of 2018. Along with 2 other students who posted yesterday, Megan recently took part in the 5th annual conference of AtlAS, the Atlanta International Arbitration Society. She served as a rapporteur for a roundtable on “The Rise of Third-Party Funding: Flattening the Playing Field between Haves and Have-Nots?,” featuring attorneys Carlos Forbes (Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada and Mundie Advogados, São Paulo, Brazil), Andrea Menaker (White & Case), Eloise Obadia (Derains & Gharavi), Lawrence S. Schaner (Jenner & Block), and Tim Scrantom (JD’83) (Scrantom Dulles International), and moderated by John Watkins (JD’82) (Thompson Hine). Reflecting on this panel, Megan (above left) writes:

atlantamapAtlanta’s infrastructure and legal framework have made it a major seat for international dispute resolution. To secure that position and foster its continued growth, the Atlanta International Arbitration Society (AtlAS) facilitates a conference where representatives of the international legal community discuss various topics relating to international arbitration. I had the privilege of attending the 5th annual AtlAS conference, “International Arbitration in a Not So ‘Flat’ World: Practical Considerations for Counsel and Their Clients.” Here are some things I learned from the panel for which I served as student rapporteur:

► This particular panel focused on the role of third-party funding in cases of international arbitration. Third-party funding, or more simply “TPF”, is a process by which a claim-holder, either on its own behalf or by means of an attorney, approaches and asks a third-party funder to take an interest in the case by agreeing to provide the funds necessary to carry the case forward. The need for TPF typically stems from the so-called “David versus Goliath” cases, in which claim-holders are practically barred from bringing or defending a case because of a lack of funding.

► TPF agreements involve large investments of capital and large amounts of risk, so it’s no surprise that the “reward” sought by third-party funders is also quite substantial. The typical matrix for the funder is a contingency fee split between a fixed and variable return. Often, the funder not only wants to see its capital returned, but also wants to receive a multiple of that investment dispensed on a preferential basis. The fixed return is typically phrased as “investment plus 200%” or “three times capital invested.” The variable return, on the other hand, is roughly 10%-15% of the final award. This arrangement is, in some respect, a means of obviating the risk of not getting paid, but also insuring that some of the risk remains with the firm so they maintain an interest in the case.

► Challenges with TPF present themselves mostly on the battlefield of professional ethics. Panelists alluded to specific challenges for attorneys and their firms, such as:

  • The potential for a conflict of interest or violation of American Bar Association Model Rule 1.8.
  • Issues of disclosure and finder’s fee implications.
  • Practical concerns of jurisdiction and transparency.

It ultimately depends on the characteristics of the specific tribunal but, in general, these hurdles are not insurmountable; rather, they are areas for exercising caution. They require parties to cross every ‘T’ and dot every ‘I’.

► From the point of view of a third-party funder, the biggest issue seems to be in understanding the legal jargon and its minutiae. The difference in “privilege” and “work product” seems to be especially troubling. Third-party funders operate outside the bounds of the attorney-client relationship, and may themselves seek opinions or advice from outside counsel. It’s extremely important that all parties pay close attention to the transfer of documents as well as communications in this web of relationships. To properly operate with these challenges, an attorney will most likely require a confidentiality agreement involving the third-party funder and assurances of protection from any outside counsel having knowledge of the matter. This agreement seeks to make sure none of the parties improperly turns over protected work-product and that there isn’t any leakage of confidential or privileged information once it passes beyond the bounds of general attorney-client privilege.

atlas-logoPanelists broke down the issues into understandable bite-sized pieces, yet still managed to tackle the tough and more technical issues. They brought to light common issues and misconceptions of the use of third-party funding in hopes of correcting any misunderstandings and encouraging those who may have previously been on-the-fence to not shy away from this avenue for funding. Because of their diverse backgrounds, panelists were also able to provide different perspectives on the issues, including the international application of third-party funding for non-US tribunals. All in all, this panel was incredibly informative – especially considering I had absolutely no idea what TPF was prior to my arrival.

Atlanta international arbitration panel surveys recent developments

johann_cropIt’s our pleasure today to publish this post by 2 Georgia Law students,  Johann Ebongom, an LL.M. candidate, and Brian Griffin, a member of the J.D. Class of 2019 and a Dean Rusk International Law Center Student Ambassador. Johann and Brian recently took part in the 5th annual conference of AtlAS, the Atlanta International Arbitration brian2Society. Along with another student whose post will appear tomorrow, they served as rapporteurs for a roundtable on “Recent Developments in International Arbitration,” featuring attorneys Edward A. Marshall (JD’02) (Arnall Golden), Eric D. Johnson (CARE), Kirk W. Watkins (JD’75) (Womble Carlyle), and moderated by Randall F. Hafer (Kilpatrick Townsend). Reflecting on this panel, Johann (top left) and Brian (lower left) write:

Atlanta, Georgia, is fast becoming a preferred seat for international dispute resolution. This is in part due to the efforts of the Atlanta International Arbitration Society (AtlAS), whose primary goal is to promote Atlanta as a venue for the resolution of international commercial and investment disputes. AtlAS hosts an annual conference in pursuit of this goal, and so provides a forum where practitioners, experts, and others interested in international arbitration can network and exchange ideas related to this rapidly evolving field.

atlantamapWe had the privilege to represent the University of Georgia School of Law as student rapporteurs at the 5th annual AtlAS conference, “International Arbitration in a Not So ‘Flat’ World: Practical Considerations for Counsel and Their Clients.” The particular panel we attended focused on the use of arbitration as a dispute resolution mechanism in the payments-processing, international nonprofit, intellectual property, and construction industries. Here are a few things that we learned from the panelists’ presentations:

► Arbitration is a binding dispute settlement mechanism whose basic concept is that it is beneficial for somebody with a deep understanding of the context of a dispute to decide the outcome of that dispute. The practice of arbitration first came about when merchants decided that they wanted fellow merchants to settle their disputes instead of judges, who often lacked knowledge necessary to fairly settle a dispute in a particular commercial context. These merchants they believed that because other merchants were the people with the best understanding of their particular industry, they were more likely to fairly settle their disputes than anyone else. The practice of arbitration has continued through the ages, but arbitrators in this day and age are almost always lawyers with expertise in a particular field. However, non-lawyer industry experts still play a vital role by providing information that helps the arbitrators decide the case.

► The payments-processing industry facilitates use of credit and debit cards. When someone uses a credit or debit card, the payment must first pass through a processor to get from the bank to the receiving business. Most disputes in this industry are currently resolved through litigation, but experts in the field see value in moving clients to arbitration. Litigation is often cost prohibitive and the public forum is an inhospitable place to settle disputes in the payments processing industry in general. The confidentiality of arbitration would be a great benefit, as it would allow companies to better protect consumer data.

► In relation to international nonprofit organizations, disputes generally arise between the charity and private companies, governments, or employees. However, formal disputes are not common in the non-profit industry, and when they do arise charities tend to favor courtrooms over arbitration. This is because charities are often seen as sympathetic parties, which can increases their chances of winning a judgment in court as opposed to arbitration. However, international charities often find it hard to get a balanced approach in foreign courts, as they are often subject to local bias and trust issues while litigating in foreign legal systems. Arbitration might be the solution for international organizations looking for a fair resolution to disputes arising in foreign countries.

►There are many opportunities for arbitration to be utilized in the intellectual property industry. As the cost of litigation rises, more businesses are electing to pursue cost-effective means of dispute resolution, like arbitration, in lieu of protecting their rights in court. That said, generally three categories of disputes arise in the IP industry:

  1. In the first, the two parties are unknown to each other before the dispute arises. In this situation, one party is usually alleging that the other party has infringed upon their patent rights, and they go to court to settle their dispute.
  2. In the second, parties have a contractual relationship. This can be between licensor-licensee, manufacturer-distributor, or supplier-purchaser. Because of the prevalence of arbitration clauses in contracts, these disputes are often settled through arbitration.
  3. In the final category, companies lack agreements between themselves, but work in the same industry. Typically these companies are not likely to arbitrate; however, given that litigation is very expensive, some companies do arbitrate in order to keep their legal costs down.

► The construction industry is worth many trillions of dollars worldwide. International construction projects often produce massive and complex disputes that usually cost more than is necessary and take longer than they should. The construction industry has traditionally looked for alternative ways to settle disputes. Arbitration is quicker and cheaper than going to court, and still provides an enforceable resolution to the dispute, making it preferable to other more traditional methods of dispute resolution like litigation. Arbitration is also valuable in that it provides the ability to have a dispute decided by others working in the same industry, as most construction clients would prefer that arbitrators knowledgeable about the construction industry decide their case instead of a judge or a jury with no knowledge of the industry.

atlas-logoAttending this year’s AtlAS Conference was an enriching experience. We learned about the use of arbitration as a dispute settlement mechanism in the context of four different industries and we took full advantage of the opportunity to meet and network with practitioners and experts in this rapidly growing field, many of whom were willing to share their experiences and impart helpful advice in regards to our academic journey at the University of Georgia School of Law. In doing so, we forged important professional relationships that we hope will last for many years to come. Finally, we thank Georgia Law for this wonderful opportunity to represent our law school at this important and highly educational event.

Amid UK Brexit furor, Consul General stresses Ireland’s solidarity with EU

“Ireland will be committed to the European Union for the long term.”

stephens2That pledge formed the core message of “Ireland, the European Union, and Brexit,” the talk that Shane Stephens, the Irish Consul General in Atlanta, delivered yesterday to students at the University of Georgia School of Law. (Sponsoring were Georgia Law’s Dean Rusk International Law Center, along with the university’s Willson Center for Humanities & Arts and School of Public & International Affairs.) Stephens, who represents Ireland throughout the southeastern United States, continued:

“The European Union is a massively successful peace process, first and foremost. It brought the countries of Europe so close that another war like the 1st and 2d World Wars cannot happen again. It expanded peace, prosperity, and democratic principles. That’s been good for Europe, and good for the world as well.”

The diplomat’s fiercely pro-EU stance contrasts with the current political climate in Ireland’s eastern neighbor and former colonizer – the United Kingdom, where, on June 23 of this year, British voters opted to leave the EU by a margin of 52% to 48%. Brexit hit a snag last week, when Britain’s High Court ruled that only Parliament has the power to take leave from the EU. But that decision awaits appeal to the Supreme Court of the United Kingdom; Stephens’ talk proceeded on the assumption that leave eventually would occur.

“Anticipation of Brexit already has had a huge impact in Ireland and the United Kingdom,”

he explained. By way of example, he noted that the value of the pound sterling has plummeted, and that has made Irish crops more costly, and so less desirable, in the British marketplace.

stephens1Stephens predicted that the UK would retain some relationship with the EU, but said its contours would depend on negotiations between the two. Given the anti-immigration sentiment that helped propel “Leave” to victory, a sticking point may be the free movement of workers. Stephens said:

“This is one of the core principles of the EU, one of the things that makes the EU great, in my view.”

(Driving home the point was Mise Éire/I am Ireland, the brief Irish government video that he showed, which reveals diversity in the Irish polity.) Stephens said he expected access to Europe’s single market to remain contingent on acceptance of the freedom of movement, yet surmised that “pragmatic” negotiations might produce a solution to this disagreement.

Brexit poses opportunities as well as challenges for Ireland, Stephens noted. Ireland’s status as a “market-oriented” European country is likely to increase. Its already enjoys strengths in financial technology, pharmaceuticals, and the software industry, with giants like Google having significant presence on the island. In Stephens’ words:

“Ireland is a place where people are happy to work.”

Toutes nos félicitations! Representing Niger, winning Georgia Law students headed to D.C. for Model African Union

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From left, the Republic of Niger delegation: Shummi Chowdhury, Amanda Hoefer, Johann Ebongom, Chanel Chauvet, and Nelly Ndounteng. The team’s 6th member, Rebecca Wackym, is pictured in the photo below.

Georgia Law students emerged victorious in last weekend’s Southeast Model African Union competition, hosted here in Athens by the University of Georgia African Studies Institute. Twenty-one teams from a dozen universities and colleges took part; we at the law school’s Dean Rusk International Law Center were proud cosponsors.

The team won Best Delegation Award, and thus will compete against teams from across the country in the National Model African Union Conference to be held February 23-26, 2017, at Howard University in Washington, D.C.

niger_240-animated-flag-gifsWhat’s more, every one of the 6 students on the Georgia Law team won individual awards. They and the AU committees in which they represented their appointed country, the Republic of Niger (flag at right), are:

► Johann Ebongom, LLM, Committee on Economic Matters: Outstanding Delegate and Outstanding Parliamentarian

► Chanel Chauvet, 2L and Dean Rusk International Law Center Student Ambassador, Committee on Peace and Security: Outstanding Delegate

► Nelly Ndounteng, LLM, Committee on Social Matters: Outstanding Delegate

► Shummi Chowdhury, 1L and Dean Rusk International Law Center Student Ambassador, Committee on Pan-Africanism and Continental Unity: Honorable Mention

► Amanda Hoefer, 1L, Committee on Democracy, Governance and Human Rights: Honorable Mention

wackym_crop► Rebecca Wackym, 1L, Executive Council: Participation Award

The conference was founded 37 years ago by Dr. Michael C. Nwanze, who teaches at Howard’s Department of Political Science. Then, the continent’s regional group was the Organization of African Unity. Next year will logobe the 15th that the conference has borne the name of the OAU’s successor, the African Union.

Between the Law of Force and the Law of Armed Conflict

adhaque_img“Between the Law of Force and the Law of Armed Conflict” by Adil Ahmad Haque, originally published on Just Security Blog on October 13, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humanity’s gjicl_confposterCommon Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 3d of 3 he prepared soon after the conference. He writes:

Last week, I argued in favor of the ICRC’s position that if one state uses armed force in the territory of another state then an international armed conflict (IAC) arises between the two states, unless the territorial state consents to that use of force. Accordingly, the treaty and customary law of IAC protects the civilian population of the territorial state as well as the armed forces of the intervening state. For example, on this view, the customary law of IAC applies to US operations in Syria, while Additional Protocol I (to which the US is not a party) applies to UK operations in Syria.

Importantly, the ICRC’s approach applies even if the target of the armed force is an organized armed group operating on the territory­—but not under the control—of the territorial state. Accordingly, the treaty and customary law of non-international armed conflict (NIAC) may also apply to such uses of armed force, for example, by governing the targeting and detention of armed group members.

In this post, I’ll respond to some criticisms of the ICRC’s position. Along the way, I’ll make some more general comments on the relationship between the law of force (jus ad bellum) and the law of armed conflict (jus in bello).

Here on Just Security, Sean Watts and Ken Watkin have criticized the ICRC’s position (see here, here, and here). Perhaps the most sustained critique of the ICRC’s position comes from Terry Gill, in a recent article for International Law Studies. There is much to admire in Gill’s article (indeed, I recently assigned it to my students). However, I found his criticisms of the ICRC’s position unpersuasive.

First, Gill rejects “the argument that non-consensual military intervention automatically constitutes a violation of sovereignty and is therefore directed against the territorial State” on the grounds that the intervention may be a lawful exercise of self-defense or may be authorized by the UN Security Council.

This objection seems misdirected. The ICRC does not refer to a violation of sovereignty but instead to an interference or intrusion into the territorial state’s sphere of sovereignty. By definition, a violation of sovereignty is unlawful. In contrast, an interference or intrusion into a state’s sphere of sovereignty may lawful or unlawful. According to the ICRC, an armed interference or intrusion into a state’s sphere of sovereignty—whether lawful or unlawful—will trigger an armed conflict with that state. More on this below.

Second, and relatedly, Gill writes that “there is no reason to assume that the classification of an armed conflict is dependent upon— or even influenced by—the question of whether a violation of the ius ad bellum has occurred.”

This objection also seems misplaced. On the ICRC’s view, the classification of an armed conflict does not depend upon the lawfulness or unlawfulness of the use of force, but instead depends on the fact that force is used by one state on the territory of another without its consent.

Of course, if the territorial state consents to the use of force then (i) the use of force is lawful under the jus ad bellum and (ii) there is no armed conflict between the two states. However, the reason that there is no armed conflict between the states is not that the use of force is lawful but rather that there is no conflict between the states, armed or otherwise. There is no dispute, difference, opposition, or hostile relationship between the two states. Put another way, the fact that consent has been given or withheld is independently relevant to both the jus ad bellum and the jus in bello.

In his second post, Watkin writes that the ICRC’s “reliance on State consent, as the basis for conflict categorization, makes it difficult, if not impossible, to separate it from the law governing the recourse to war.” I respectfully disagree.

The jus ad bellum and the jus in bello are independent in the sense that a use of force may be lawful under one body of law but unlawful under the other. A war of aggression may strictly conform to the law of armed conflict, while a war of self-defense may flagrantly violate the law of armed conflict. At the same time, we do not conflate jus ad bellum andjus in bello simply by recognizing that certain factual circumstances (such as consent or non-consent) may be relevant to both bodies of law.

(For example, if one state exercises effective control over part of the territory of another state then this will ordinarily give rise to a belligerent occupation. Of course, if the territorial state consents then there is no belligerent occupation, not because the occupation is lawful but because there is no belligerency. The same logic applies to the use of armed force and the existence of armed conflict.)

Third, Gill notes that “neither the text of the relevant provisions in the Geneva Conventions (Common Articles 2 and 3) nor the original ICRC commentaries thereto contain any reference to violation of sovereignty as a criterion for determining the character of the armed conflict.” Nor does the ICTY’s Tadić judgment, which Gill rightly describes as “the leading judicial decision on the classification of armed conflicts.”

Since the Geneva Conventions do not tell us when an armed conflict between states exists, we must interpret their terms in light of their context, object, and purpose. The original ICRC commentaries state that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces” gives rise to an armed conflict between those states. It is hard to imagine a more serious difference arising between two States than a difference regarding whether one may use armed force on the territory of the other. If such a difference leads to intervention by the armed forces of either state, then an armed conflict automatically arises.

In Tadić, the ICTY stated that “an armed conflict exists whenever there is a resort to armed force between States.” Importantly, “armed force between States” does not require that two states use armed force against one another but instead requires that one state uses armed force against another.

Now we approach the heart of the matter. What does it mean for one state to use force “against” another?  On the ICRC’s view, an armed interference in a state’s sphere of sovereignty is a use of force against that state.

Why invoke the concept of sovereignty in this context? States are legal persons, not physical persons or objects. Strictly speaking, one cannot use physical force against a legal person, such as a state or corporation. One can, however, use physical force against a physical entity—a person, place, or object—over which a legal person has legal rights. There is nothing else that physical force against a legal person could sensibly mean. On this approach, physical force is used against a state when physical force is used against a physical entity within that state’s sphere of sovereignty. There is nothing else that physical force against a state could sensibly mean.

Fourth, and most importantly, Gill identifies several examples involving extraterritorial force targeting armed groups in which “the States concerned [n]either verbally [n]or factually conduct themselves as if they were involved in an armed conflict, even though they may not have consented to the interventions and may have considered them a violation of their sovereignty (irrespective of whether they did constitute such violations).” These examples include military operations by the United States inside Pakistan and Yemen; by Turkey inside Iraq; by Kenya inside Somalia; and by Colombia inside Ecuador.

Admirably, Gill allows that “the lack of hostilities between the intervening and territorial States in these examples may be in whole or in part due to other factors.” But what should we make of the fact that these states may not claim to be in armed conflict with one another?  Is the absence of such claims, or the denial of such claims, “subsequent practice in the application of the treaty [in this case, the Geneva Conventions] which establishes the agreement of the parties regarding its interpretation?”

In my view, state silence is inherently ambiguous. Accordingly, we should consider only the explicit legal opinions of states that the law of IAC applies or does not apply. For example, Syria might announce that it is not in an IAC with the UK and that, accordingly, UK forces captured in Syria are not entitled to combatant immunity for acts preceding their capture. The UK would no doubt respond with its own legal opinion, based on its own classification of the conflict and identification of applicable legal rules.

Until subsequent practice establishes the agreement of the parties to the Geneva Conventions (that is, of all states) regarding their interpretation in such cases, we should interpret the terms of the Conventions in light of their object and purpose. As I discussed in my previous post, the object and purpose of the law of IAC is the protection of civilians, civilian objects, and combatants from hostile foreign states. As the ICRC puts it:

it is useful to recall that the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure. For these reasons and others, it better corresponds to the factual reality to conclude that an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.

Strangely, in his first post on Just Security, Watkin objects that, by adverting to this factual reality, the ICRC “prioritizes form over substance” because the harm to civilians “may be a mere possibility.” Instead, Watkin suggests that conflict categorization should be based on “an assessment of what actually happens.” On this view, it seems that we will not know what law applies to a use of force until after the use of force is carried out. Among other things, we will not know which legal protections civilians enjoy until it is too late. This seems like an unattractive view.

For his part, Gill acknowledges that “an intervention may impact portions of a State’s population or its national resources,” but writes that

when a population and public property are under the control of an [organized armed group] and not under the effective control of the territorial State, they can no longer be identified with that State for purposes of determining the legal constraints on the conduct of hostilities. In the event the intervening State’s action resulted in occupation of territory, this would change the situation and trigger the regime pertaining to IACs.

Watkin seems to make a similar claim in his first post on Just Security.

Strikingly, Gill provides no support for the first sentence, which is hardly self-evident. Indeed, the first sentence seems to implicitly concede that persons and public property under the effective control of the territorial State can be identified with that State for purposes of conflict classification. Accordingly, if a member of an armed group travels through an area under the effective control of the territorial state then an attack in that area, potentially impacting nearby persons and property, would seem to constitute an attack on the state itself.

Moreover, the second sentence seems to undermine the first. According to Gill, territory under the control of an armed group remains sufficiently identified with the territorial state such that, if the intervening state occupies part of that territory, then an IAC arises between the two states. However, according to Gill, territory under the control of an armed group is not sufficiently identified with the territorial state such that, if the intervening state uses force on that territory, then an IAC arises between the two states. Since control never passes back to the territorial state, it is hard to see the legal or logical basis for this apparently incongruous result.

Finally, Gill observes that “most [academic] authorities take the position that the classification of armed conflicts primarily (but not exclusively) turns on the nature of the parties . . . .” In my view, it begs the question to say that, in the cases under discussion, the two states are not parties to an armed conflict. After all, if the ICRC is correct, then the two states are parties to an armed conflict.

In this post, I have tried to address the most substantial criticisms of the ICRC’s position. No doubt, other objections have been and will be raised. We should expect no less. The controversy that the ICRC’s position has elicited is, perhaps, the best evidence that conflict classification remains highly relevant to the legal regulation of armed conflict.

Whose Armed Conflict? Which Law of Armed Conflict?

adhaque_img“Whose Armed Conflict? Which Law of Armed Conflict?” by Adil Ahmad Haque, originally published on Just Security Blog on October 4, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humagjicl_confposternity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 2d of 3 he prepared soon after the conference. He writes:

When one state, say, the United States, uses military force on the territory of another state, say, Syria or Pakistan, without the consent of that state, what legal rules constrain that use of military force?  What if the attacking state does not target the armed forces or institutions of the other state but instead targets an organized armed group (say, ISIL or the Taliban) operating in the other state?

According to the International Committee of the Red Cross (ICRC) 2016 Commentary on the First Geneva Convention, if one state uses military force on the territory of another state then the use of force triggers an international armed conflict (IAC) between the two states, unless the territorial state consents to the use of force.  Accordingly, the law of IAC applies to, and constrains, all such uses of force.

Importantly, the law of IAC applies even if the intervening state exclusively targets an organized armed group operating in the territorial state. If there is a non-international armed conflict (NIAC) between the intervening state and the armed group then the law of NIAC may apply in parallel.

The ICRC’s position has attracted substantial criticism, including on Just Security (see here, here, and here).  I hope to respond to some of these criticisms in a future post.  For now, I will try to explain why I find the ICRC’s view persuasive.  This post, like my previous one, emerged from a terrific recent event at the University of Georgia School of Law that examined a number of issues raised by the Commentary.

Before we begin, let’s remember why the question is worth asking, and why the answer matters.  Conflict classification can seem dry and technical, but it affects both protection and accountability in armed conflict.

First, the treaty law of IAC is far more detailed and robust than the treaty law of NIAC.  Most importantly, the Geneva Conventions and Additional Protocol I are far more protective of both civilians and combatants than either Common Article 3 or (with respect to internal conflict) Additional Protocol II.

Second, the customary law of IAC remains distinct from the customary law of NIAC, though the gap has certainly narrowed since the 1990s. For its part, the ICRC identifies 23 customary rules applicable in IAC but not in NIAC. States that take a more conservative approach to customary international law may conclude that the gap between IAC and NIAC remains even wider than the ICRC maintains.

Finally, the Statute of the International Criminal Court recognizes 34 war crimes in IAC but only 19 war crimes in NIAC. Notably, the Statute recognizes knowing violation of the proportionality rule as a war crime when committed in IAC but not when committed in NIAC.

To fix ideas, consider the following scenario:

No Consent: State A launches an airstrike against organized armed group G on the territory of State T, foreseeably killing several civilians. State T exercises no control over group G, but also does not consent to State A’s strike.

According to the Commentary, State A’s strike triggers an IAC with State T to which the law of IAC applies.  If there is, in addition, a NIAC between State A and group G then these two conflicts occur in parallel.

(Note that conflict classification does not depend on the lawfulness of State A’s attack under the jus ad bellum. For these purposes, it does not matter whether State A is lawfully defending itself against an armed attack by group G or unlawfully using military force to eliminate a possible future threat.)

In my view, the ICRC’s position fully reflects the text, object, and purpose of the Geneva Conventions and their Additional Protocols. An international armed conflict is a dispute (‘conflict’) between states (‘international’) involving the use of military force (‘armed’).  It is hard to imagine a more serious dispute between states than a dispute regarding the use of military force by one on the territory of the other.

Indeed, States adopted the law of IAC in order to protect their civilians and armed forces from extraterritorial force by foreign states. States using force beyond their borders may not recognize many legal, ethical, or political constraints on their conduct. Accordingly, when State A uses force on the territory of State T, we need the law of IAC to protect the civilian population of State T from the military operations of State A and (as we shall see) to protect the armed forces of State A from criminal prosecution by State T.

In contrast, States adopted the law of NIAC primarily to regulate internal armed conflicts within their own territory.  States using force on their own territory may feel constrained by domestic law, human rights law, concern for their own citizens, and internal politics. Accordingly, the need for robust protection by the law of armed conflict may have seemed less urgent.

The alternative view—that no IAC exists and that the law of IAC does not apply—seems deeply implausible.

First, the law of NIAC may not apply either.  On the prevailing view, including that of the ICRC, the law of NIAC applies only to protracted armed confrontations between state armed forces and organized armed groups or between such groups.  If group G is not organized in the right way, or if fighting between State A and group G is not sufficiently intense, then a gap in protection would exist that no state would accept.  (As Just Securityreaders know, I partially reject the prevailing view and partially disagree with the ICRC on this point.)

Second, it is hard to believe that states would want legal protection for their civilians from foreign forces to depend on what those foreign forces choose to target.  If an intervening state targets the armed forces of the territorial state then civilians may receive robust protection under Additional Protocol I.  In contrast, if an intervening state targets an organized armed group then civilians may receive only the minimal protections of Common Article 3 (which, arguably, does not regulate the conduct of hostilities at all).  Defenders of the alternative view must explain why states would accept such limited protection for their civilians from foreign forces in such cases.

Third, in internal NIACs, states may be constrained in their treatment of their citizens by human rights law and by domestic law.  In contrast, in cross-border cases, IHL is the primary (though not exclusive) constraint on the intervening state’s conduct.  Accordingly, in cross-border cases, we should not rely on the law of NIAC to provide civilians with the level of protection envisioned by the parties to the Geneva Conventions and Protocols.

In my view, the customary law of NIAC now offers civilians protection comparable to that offered by the customary law of IAC.  However, in my view, we should interpret Common Articles 2 and 3 of the Geneva Conventions in light of the customary law of NIAC as it existed when those treaties were adopted and entered into force.  At that time, no state would have relied on the customary law of NIAC to protect their civilians from foreign states operating on their territory without their consent.

Fourth, the alternative view exposes the forces of the intervening state to criminal prosecution by the territorial state.  There is no combatant immunity in NIAC and, on the alternative view, there is no IAC.  It follows that, if State T captures State A’s pilot, then State T may prosecute the pilot for killing its civilians under State T’s domestic criminal law even if the strike did not violate the targeting rules of the customary law of NIAC.

In my view, State T’s capture of the pilot may itself trigger an IAC between the two states, such that the law of IAC would regulate his detention.  However, the strike occurred prior to capture and therefore, on the alternative view, before an IAC began.  Hence, the pilot would not be entitled to combatant immunity with respect to the strike.  Since combatant immunity exists to protect combatants from prosecution by foreign states for acts that do not violate the law of armed conflict, it is hard to see why states would deny their own forces such protection in such cases.

Finally, the alternative view seems ad hoc.  If one state uses military force against anything else in another state—citizens, state armed forces, or foreign visitors, private property, state institutions, or refugee camps—then it seem clear that an IAC exists and that the law of IAC applies.  Defenders of the alternative view must justify carving out an exception to this general rule for strikes directed at armed groups.  Given the evident need to protect civilians from the intervening state, and to protect captured combatants from the territorial state, such a justification seems hard to imagine.

For these reasons, I favor the ICRC’s position over the alternative view.  The use of force by one state on the territory of another should be constrained by the law of IAC, even if that force targets an organized armed group on that territory, unless the territorial state consents to that use of force.  As mentioned earlier, the ICRC’s position has attracted criticism, some of which I hope to address in a future post.

Georgia Law students to compete in regional Model African Union rounds

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Front row, from left: Johann Ebongom, Chanel Chauvet, Amanda Hoefer, Rebecca Wackym; back row, from left, Nelly Ndounteng, Shummi Chowdhury

A team of 6 Georgia Law students will represent the Republic of Niger in the 20th Annual Southeast Model African Union.

Thanks to the leadership of the African Studies Institute at University of Georgia, the regional competition will be held here on campus Thursday through Saturday. The Dean Rusk International Law Center, University of Georgia School of Law, is honored to cosponsor.

The contest is intended to sharpen skills in diplomacy, leadership, governmental, legal research, and public speaking. Rounds will simulate activities of the African Union.

Through the work of its many committees, this decades-old the intergovernmental organization addresses myriad issues on the continent. The competition will use as its organizing platform an African Union document,alternate-semau-flyer_0 “Agenda 2063: The Africa We Want.”

The students Georgia Law students who will compete, and their committee assignments, are:

► Rebecca Wackym, 1L, Executive Council

► Amanda Hoefer, 1L, Committee on Democracy, Governance and Human Rights

► Johann Ebongom, LLM, Committee on Economic Matters

► Nelly Ndounteng, LLM, Committee on Social Matters

► Shummi Chowdhury, 1L, Committee on Pan-Africanism and Continental Unity

► Chanel Chauvet, 2L, Committee on Peace and Security

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All the students have experience in international law and policy. Chowdhury and Chauvet are Dean Rusk International Law Center Student Ambassadors, for example, while Ndounteng and Ebongom both practiced law, in Nigeria and Cameroon respectively, before enrolling at Georgia Law.

Bon courage!

LLMs’ behind-scenes courthouse tour

photo-6_2A group of our Georgia Law LL.M. students walked downtown to the Athens Clarke-County courthouse yesterday to visit with several of our law school alums.

Assistant District Attorney Paige Otwell (JD’88) welcomed the group, which included her mentee in the LL.M. Class of 2017, Nelly Sandra Ndounteng.

Associate Magistrate Judge Ben Makin (JD’04) explained his role in the judicial system and discussed subjects ranging from arrest warrants and jail bonds to small claims court.

Ryan Hope (JD’00), who serves as Chief Assistant Solicitor  in the county’s Office of the Solicitor General, told the students how he became interested in the court system through his work at the public defender clinic in law school. In his remarks he touched on Clarke County’s accountability courts, such as DUI court, which integrate treatment and “quick, limited punishments” with the goal of reducing recidivism.

The Honorable Ethelyn N. Simpson (JD’90), Chief Judge of the State Court, related how her early experience clerking for Superior Court judges allowed her to see “a lot of good lawyers and a lot of bad lawyers,” preparing her for an unexpected career on the bench. Her enthusiasm about “the greatest job” was infectious.

After meeting with the alumni, the LL.M. students were escorted into the courtroom to view victim testimony in an ongoing trial. For the students, who come from Cameroon, Venezuela, Nigeria, Iran, Ghana, and the Bahamas, the experience was informative and rewarding. Special thanks to ADA Otwell and Dean Rusk International Law Center Student Ambassador Deborah Nogueira-Yates, a member of the Georgia Law J.D. Class of 2018 who earned her LL.M. here last May, for organizing the visit!

(Pictured above: front row, from left, Philicia Armbrister, Gilbert Oladeinbo, Valerie Mills, Nelly Ndounteng, and Assistant District Attorney Paige Otwell; top row, Noj Oyeyipo, Johann Ebongom, Javier Gonzalez, Laura Kagel (Director of International Professional Education), and Hamed Moradi Roodposhti)

Triggers and Thresholds of Non-International Armed Conflict

adhaque_img“Triggers and Thresholds of Non-International Armed Conflict” by Adil Ahmad Haque, originally published on Just Security Blog on September 29, 2016. We are grateful for permission to reprint this as part of our series inspired by gjicl_confposter“Humanity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 1st of 3 he prepared soon after the conference. He writes:

When and where does the law of non-international armed conflict apply?  Since most contemporary armed conflicts are fought between states and organized armed groups, or between such groups, these are important questions for both international lawyers and policy makers.  The answers may affect the jurisdiction of U.S. military commissions, the detention of Taliban commanders and ISIL members, legal constraints on Saudi-led military operations in Yemen, and accountability for war crimes in Syria.

In this post, I’ll discuss the trigger and threshold of non-international armed conflict (NIAC). My point of departure is the much-discussed 2016 Commentary on the First Geneva Convention recently released by the International Committee of the Red Cross (ICRC).  The University of Georgia School of Law recently hosted a fantastic event examining a number of issues raised by the Commentary, including the duty to “ensure respect” for the Convention by other Parties, incidental harm to sick and wounded combatants, and the classification of conflicts.  This post grows out of that rich discussion.

The ICRC’s Commentary clearly states that an international armed conflict (IAC) “can arise when one State unilaterally uses armed force against another State even if the latter does not or cannot respond by military means.”  Accordingly, the law of armed conflict constrains the first use of armed force by one state against another.  Let’s call this a unilateral trigger.

In addition, “there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an [international] armed conflict exists.”  Accordingly, minor skirmishes between state armed forces, or the capture of a single soldier, “would spark an international armed conflict and lead to the applicability of humanitarian law.” Let’s call this a nominal threshold.

Unfortunately, the Commentary is not so clear with respect to non-international armed conflict.  The Commentary endorses the view that NIACs “are protracted armed confrontations occurring between governmental armed forces and … one or more armed groups, or between such groups.”  This passage, as well as some cited authority, seem to suggest a bilateral trigger, requiring “armed clashes,” “combat zones,” or, simply, “fighting.”

The Commentary also states that, for the law of NIAC to apply, “[t]he armed confrontation must reach a minimum level of intensity.”  Read alongside the Commentary’s discussion of IAC, it seems that this “minimum level of intensity” would not be met by minor skirmishes or by the capture of a single soldier or fighter.

The Commentary seems to accept a unilateral trigger and nominal threshold for IAC (quadrant 1) but a bilateral trigger and significant threshold for NIAC (quadrant 4).

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In my view, we should accept a unilateral trigger and nominal threshold for both IAC and NIAC.

First, if an armed group is sufficiently organized, then a first use of armed force by or against that group should trigger a NIAC.  Consider the following case:

Daesh:  Daesh fighters pour over the Syria-Iraq border, killing Iraqi civilians, capturing Iraqi territory and taking over Iraqi government institutions.  Iraqi forces flee, offering no resistance.

If we accept a bilateral trigger for NIAC, then the law of armed conflict does not apply until Iraqi forces “respond[s] by military means,” resisting Daesh’s advance.  Until that time, Daesh fighters do not violate the law of armed conflict or commit war crimes.  This result seems deeply unattractive.  Although the Daesh fighters violate Iraqi criminal law, it seems hard to accept that they do not violate the law of armed conflict.

Now consider the following scenario:

Consent:  State A attacks organized armed group G on the territory of State T, with the consent of State T.  There is no pre-existing armed conflict between State A and group G.  State A does not take feasible precautions in attack and recklessly kills many civilians.

If we accept a bilateral trigger for NIAC, then the law of NIAC does not apply until group G responds with military force, resulting in “armed clashes.”  Since State T consents, the law of IAC does not apply either.  It follows that State A does not violate the law of armed conflict or commit war crimes.  This result seems intolerable.

Importantly, human rights law may not be sufficient to protect civilians or armed forces in cross-border cases like those described above.  On most views, human rights law does not apply to the conduct of non-state armed groups that do not yet exercise territorial control and fulfill government-like functions.  Moreover, according to some militarily active states, human rights law does not constrain extraterritorial lethal targeting by state armed forces.  Yet, in my view, such conduct should be constrained by international law.

We should also accept only a nominal intensity threshold for NIAC.  Consider the following case:

Capture:  Members of organized armed group G mistakenly cross the unmarked border between State T, in which they normally operate, and State A.  They encounter a unit of State A’s soldiers, and a minor skirmish ensues.  No one is killed, but one group member is captured by the soldiers while one soldier is captured by the group and taken back across the border into State T.

In this case, it seems that both the group member and the soldier should be entitled to humane treatment under Common Article 3 of the Geneva Conventions.  Moreover, if there are civilians present when the skirmish occurs, then it seems that the conduct of the skirmish should be constrained by customary rules including distinction, precautions, and proportionality  If those rules are flagrantly violated, then those violations should amount to war crimes.

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict.  The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

Some might worry that applying the law of armed conflict to first uses of low intensity force will displace or reduce the protections of human rights law.  Fortunately, that is not the case.  Even during armed conflict, states may choose not to derogate from their ordinary human rights obligations.  Alternatively, derogation may be strictly required only with respect to certain measures, or only in certain parts of a state’s territory, or only in certain situations, even if the law of armed conflict provides additional constraints on all acts with a sufficient nexus to the conflict.

Most importantly, killings that are not prohibited by the law of NIAC may be prohibited by human rights law.  In particular, “[w]here military necessity does not require parties to an armed conflict to use lethal force …, but allows the target for example to be captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.”  In situations of armed conflict, the law of NIAC may aid the interpretation of human rights law but does not exhaust the content of human rights law.

Finally, the law of armed conflict cannot authorize what human rights law forbids.  As the ICRC observes elsewhere, “[t]he law relating to the conduct of hostilities is primarily a law of prohibition: it does not authorize, but prohibits certain things.”  Human rights law and the law of NIAC do not conflict with each other but instead complement one another, as both impose constraints on violence rather than licenses to commit violence.  As Additional Protocol II makes clear, human rights law “offer[s] a basic protection to the human person” while the law of NIAC aims “to ensure a better protection for the victims of [] armed conflicts.”