Author Archives: Travis Normand

About Travis Normand

Attorney, Husband, and Father. - Interests: College Football, Cigars, Freemasonry, History, Research, Writing, LOAC / IHL, Law, and much more.

Applying the LOAC to current Middle East conflicts

Posted by Travis Normand
April 18, 2017

A great discussion involving Geoff Corn (moderator), Ken Watkin, Mike Meier, and Rich Goss regarding the Law of Armed Conflict and its applicability in modern conflicts. This panel discussion was hosted by the University of Virginia Law School’s Center for National Security Law. 

While the entire video is almost an hour and a half long, it is well worth your time.

Video Recorded and Published by the University of Virginia School of Law on March 10, 2017 (with the following caption):

A panel of national security law experts discusses the challenges of translating traditional rules of war to the unconventional conflicts taking place in the Middle East. The panel consists of Brig. Gen. (Ret.) Ken Watkin (former Judge Advocate General, Canadian Armed Forces); Brig. Gen. (Ret.) Rich Gross (former legal counsel, Chairman of the Joint Chiefs of Staff) and Michael Meier (office of the Judge Advocate General, Department of the Army). Geoff Corn, South Texas College of Law, moderates. This panel was part of the UVA Law conference “Region in Turmoil: Conflicts in the Middle East.” (University School of Law, March 2, 2017)
Hyperlinks added by Travis Normand.

Trump’s Authority to Launch Attack at Syria

by Travis Normand
April 7, 2017

This is currently a rough draft and needs to be edited. However, due to current events, I am posting the rough draft for any and all to read.

The U.S. fired 59 Tomahawk cruise missiles at Syria in response to what it believes was a chemical weapons attack that killed more than 100 people. For more on the attack itself, you can read about it here at CNN.com and CNBC.com.

The chemical weapons attack, carried out by the Assad regime (apparently), is a violation of the Chemical Weapons Treaty. The use of chemical weapons are banned under the law of armed conflict because, among other things, they are indiscriminate and cause inhumane suffering. Further, the use of chemical weapons are also banned under customary international humanitarian law (thus, even if Syria wasn’t a party to the treaty, the use of these weapons would still be illegal).

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Army National Guard, 36th Infantry Division, Celebrates 100 Years

16406493_10155116963010864_6173179219953167927_nby Travis Normand
April 2017

In honor of the 100th anniversary of the Army National Guard’s 36th Infantry Division (Texas), I am working on a short post that contains pieces from this units history.

OPERATION AVALANCHE

Trivia Question: What was the first U.S. Army unit to land on mainland Europe during World War II?

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My Lai (49 years ago today)

by Travis Normand
March 16, 2017

On this day in 1968 (March 16), Warrant Officer Hugh Thompson turned his helicopter’s guns on fellow U.S. troops in order to stop the My Lai Massacre.

I truly believe that one cannot fully understand or implement the LOAC without also having a firm grasp on history. For this reason, I recommend using (at the very least) the following links to familiarize yourself with what has been labeled the “My Lai Massacre.”

The Progressive Expansion of Crimes against Humanity

Editor’s Note: This post was written by Edain Jamison and was submitted, by her, to LOACBlog.com for publication. It has been posted here in its original format without any editing, deletions, subtractions, or additions from the original version that was sent to us. We hope you enjoy it.

*****

by Edain Jamison [*]
Guest Columnist
March 9, 2017

The International Criminal Court (ICC) and other international tribunals, have recently expanded the definition of eligible victims of war crimes and crimes against humanity. In February 2017, the pre-trial chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) , stated that an attack by a state or regime on it’s own forces “could amount to an attack against civilian population….unless the armed forces were allied with or support to an opposing side in an armed conflict.”[1]

The Co-Investigating Judges called for submissions from both parties and amici curiae from outside bodies to decide on whether an attack against own armed forces could amount to a crime against humanity (CAH) for the purposes of Article 5 of the ECCC Law during the period of 1975-1979.The judges decided in favour of the prosecution, and besides all the definitions of a “civilian” given by international law; the courts found that an attack on armed forces can amount to a Crime Against Humanity. While the case is concerned with a certain time period, there may also be a change in case law. This piece will not analyse the facts of the case, but more the principles of law and reasoning from the judges, and will conclude that the judgment and reasoning are sound and proportionate to International Criminal Law (ICL).

While the ECCC has been heavily criticised for being one of the most daunting challenges to international criminal law,[2] the recent case has clarified some factors on legal terminology and the significance of crimes against humanity. Surprisingly, the decision does not follow many of its predecessors cases in other hybrid tribunals. Perhaps the reasoning is the result of the ECCC concluding the bulk of its cases or rather than fixate on terminology and be indecisive on which laws are appropriate, the case is a step forward in providing adequate justice.

Crimes Against Humanity- Elements versus Definitions

After a heavy dissection of the amici curiae, the judges sided with the view that an attack on a state or regime’s own armed forces may amount to an attack directed against a civilian population. While other views disagreed, somewhat or mildly, the second notable viewpoint; “Only when the underlying crime is persecution can an attack on state or organisation’s own armed forces amount to an attack on a civilian population”[3] would have sufficed in concluding the case, as it leads to a similar result. While the judgment can be considered case sensitive, the co-investigating judges may have set a broad interpretation for other chambers.

One of the main discussions of the case concerned the act of CAH versus civilian population definition. In particular what tends to be an on-going struggle of what has more importance, the elements of the crime (widespread and systematic)[4], or do the persons fit the definition? The prosecution and parts of the amicus brief put forward that, not to include state’s own armed forces as targets of an attack under CAH would lead to an “absurd or problematic result of a lack of any legal protection for then under international criminal law.”[5] Yet those opposing this stated that there are other laws in place to protect armed forces such as human rights law and prohibition on genocide.[6] However if such laws are in place for armed forces, then why do citizens need additional laws afforded to them such as CAH? Surely other ICL mechanisms can apply to citizens if that is the case. According to Pierre Marie Dupuyin, when analysing an International Criminal Tribunal for the former Yugoslavia (ICTY) case,[7] the Courts had not previously established that a state is capable of committing a crime, on the basis of an interpretation of Article I of the Genocide Convention[8]. Even after the case, the judges “stepped away at the very last hurdle and refused to conclude in favour of the international criminal responsibility of the state.”[9] Seemingly, judges are better equipped to deal with CAH convictions from the flow of case law from the ICC and tribunals of ICL.

The judges correctly go back to the origins of Nuremberg and reference the International Military Tribunal. By acknowledging a range of cases from the beginning, the judges give us a rather intriguing insight of which argument has more significance; the crime or the ‘civilian’ terminology. They acknowledge in these early cases that the judges did not analyse in depth the meaning of civilian population, they repeatedly highlighted the “consistent”, “systematic”, and “planned” characteristics of the inhumane system of persecution and other crimes perpetrated on a vast scale by the Nazi regime.[10] They also referenced other cases tried under CCL10 and these cases provided no explicit analysis of the civilian population requirement.[11] References to cases such as P and Other case[12] where the judges state they “cannot believe that actions among soldiers cannot represent CAH” when they belong “to the system and the massive number of crimes committed in the Nazi rule.”[13]

Interestingly there seems to be an evolution of case law, where quite a number of significant changes have occurred. Out with the old, in with the new perhaps? The judges note that other trial chambers of ECCC have interpreted “civilian population requirement consistently with majority view in ad hoc tribunals.”[14] They refer to Blaskic Appeals chamber at ICTY which found members of armed forces, militias etc. cannot be considered civilians for the civilian population requirement, even when hors de combat.[15] From the broad interpretation to the narrow, the judges in Blaskic justify their reasoning by reference to Article 50 of the Geneva Conventions (GC) on the definition of the civilian population.[16] Yet in contrast to this, when drafting the GC, International Committee of the Red Cross (ICRC) advocated “as wide as possible a definition” of civilians justified “by the purpose intended, namely, general protection against effects of hostilities.”[17]

There has been a shift in the importance of ‘civilian population’, perhaps this ongoing confusion is aggravated by the laws in place which provide the definition of ‘civilian population,’ and these laws may not be suitable for all ICL cases. While others argue; “customary international law must provide a residual basis for the interpretation and application of crimes against humanity at the ICC”[18] we must not deviate from the intentions of the Rome Statute and earlier case law. The judges are correct in using the rationale from the origins of the Nuremberg trials, “exempting one’s own soldiers from the protection of CAH based on an overly restrictive interpretation of its terminology, which is what the Defence are in essence promoting, is not such an acceptable argument.”[19]

Are other principles and laws aggravated by this reasoning?

The case law leaning towards the importance of ‘civilian definition’ tends to focus on different sections of international law for justifications. Why is there tendency to pick and choose which law is appropriate? Is fairness achieved through variety? Again this great focus on terminology and definitions has perhaps blinded the courts in grasping the essence of the crime.

Article 21 (b) of the Rome Statue activates the use of using other laws in ICL cases, it states, “the court shall apply…where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.”[20] In previous cases, and with the current defence of this case, heavily emphasis has put on the International Humanitarian Law (IHL), article 50 of GC in particular, for their justification. However the judges appropriately disregarded this by stating, “specific situation criterion, rather than the IHL criterion must be applied. Therefore a broader definition of civilian population, that of the entire population of a certain country, must be adopted.”[21] The judges rely on Article 5 of ECCC law, and Article 7 of the Rome statute[22] as they illustrate the ‘specific situation’ and allow for a broad interpretation, whereas international humanitarian law limits interpretation, which is not desired or appropriate in this case. Hansdeep Singh indicates that, “there is no formal recognition of non-civilians (or soldiers hors de combat) as individual victims of crimes against humanity.[23]” While there is no formal recognition, the judges correctly decided armed forces do qualify to prevent frustrating the law on CAH.

The defence also refers to the principle of legality and in dubio pro reo, which require that any doubt or ambiguity in the interpretation of there term civilian should be resolved in favour of the charged persons.[24] However, surely applying these principles would obstruct the law on CAH, as the elements have already been satisfied in the instant case. Ben Saul correctly points out that a broad interpretation would not violate legality under Cambodian or international law because the principles do not prohibit the ECCC from interpreting and clarifying the law.[25] Perhaps the issue with these principles lay with ICL in general. Darryl Robinson states that the ICC as a whole applies, “a teleological approach that maximises victim protection means that there is never an ambiguity left for strict construction to resolve, because all ambiguities have already been resolved against the accused,”[26] and argues that “the rule faced by the accused is closer to in dubio contra reo.” While this may be a sound counter argument in criticising the ICC’s use of principles, it would be unjust in the instant case. The accused committed the elements of the crimes, the instant case’s ambiguity was simply whether a CAH can apply to armed forces, resolving it in the favour of the armed forces does not disadvantage the accused or infringe upon the accused’s Fair Trial Rights[27]. Therefore it is correct to conclude these principles should lay dormant until it is absolutely necessary for their intervention, which may be in the rarest of cases where the ambiguity should be resolved on the elements of a crime, rather than who qualifies as a civilian.

Onwards and Upwards

Through variations of case law, many legal principles read together can contradict and confuse the courts. The difficulty the courts face is how to use such principles, and coherently apply them to the facts, without aggravating other pieces of law. Principles like dubio pro reo are not suitable to all cases, or the law in question. The judges in this case were correct in disregarding it’s use as it was not suitable to the facts. Article 21 should only be used in cases where the elements of the crime are in question.

As the judges correctly pointed out, IHL is not entirely gospel in this instant case and it’s extended usage aggravates the law on CAH. The judges have struck a proportionate balance of the law by determining that greater significance must be afforded to the specific situation criterion of CAH. In terms of the significance of legal terminology over the elements of the crime, the judges followed back to the origins of Nuremberg trials to find a more proportionate approach, one of which should be acknowledged in future cases of ICL.

*****

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Haditha Trial & Events (Resource)

by Travis Normand
March 9, 2016

I attended a presentation this past weekend on the topic of U.S. Military rules of engagement (R.O.E.) violations and war crimes. A primary focus of the presentation were the trials that followed the Haditha (Iraq) incident of 2005.

It has been a while since I last read about what happened regarding Haditha and I have therefore spent the past week researching the incident, the trials, and the news coverage that followed.

I stumbled upon a couple of great resources and wanted to post them here for others to reference. Please note, despite the following links, I am not taking a political stance on this event.

  1. http://warchronicle.com/TheyAreNotKillers/DefendOurMarines.htm
  2. https://en.wikipedia.org/wiki/Haditha_massacre
  3. http://www.cnn.com/2013/10/30/world/meast/haditha-killings-fast-facts/
  4. https://www.theatlantic.com/international/archive/2012/01/why-we-should-be-glad-the-haditha-massacre-marine-got-no-jail-time/251993/

Israeli Soldier Convicted Of Manslaughter For Killing Wounded Palestinian

by Travis Normand
January 5, 2017

There are a lot of different angles from which I could approach the discussion of this incident / court ruling. However, I am going to have to collect my thoughts on this topic and revisit it later when I have more time to write. Until then, I will leave you with this thought; due to the difficulties involved with imposing punishments for LOAC violations, it is important that countries continue to prosecute their own for any and all such violations.

Excerpts from the NPR.org article are posted below.  If you would like to read the article in its entirely, you can do so HERE (NPR.org).

Israeli Soldier Convicted Of Manslaughter For Killing Wounded Palestinian
by Camila Domonoske
January 4, 2017
NPR.org

An Israeli military court has convicted a soldier of manslaughter for shooting and killing a Palestinian assailant who was already incapacitated.

* * *

The judges found that 20-year-old Sgt. Elor Azaria acted in cold blood when he shot and killed Abdel Fattah al-Sharif, NPR’s Joanna Kakissis reports from Jerusalem:

“Al-Sharif had been shot and wounded after stabbing an Israeli soldier. Eleven minutes later, Azaria shot the motionless Al-Sharif in the head.

“A human rights activist filmed the killing. The video went viral.

“Many Israelis say Azaria was justified because he feared Al-Sharif might have been wearing an explosive belt. But Azaria’s superior officers say his actions contradict the army’s ethical standards.”

* * *

The AP reports:

“In delivering her verdict, Col. Maya Heller systematically rejected all of Azaria’s defense arguments, saying ‘the fact that the man on the ground was a terrorist does not justify a disproportionate response.’

Read the entire article at NPR.org, found here:  http://www.npr.org/sections/thetwo-way/2017/01/04/508162405/israeli-soldier-convicted-of-manslaughter-for-killing-wounded-palestinian

Journalists in Armed Conflict and the Loss of Protective Status

by Travis Normand
December 28, 2016

*THIS POST HAS BEEN UPDATED (SEE BELOW)*

The following was published at TheBlaze.com on December 8, 2016 (emphasis added).

Exclusive: TheBlaze’s Jason Buttrill shoots at ISIS members and shares footage from the Mosul front, by Brandon Morse, December 8, 2016 at 10:15 pm

TheBlaze researcher Jason Buttrill is bringing you exclusive footage from the Mosul offensive in Iraq, and as you will see, the action is getting a bit extreme. Currently, Buttrill is on the front line, seeing the fight to take back Iraq street by street. Not only is he having some interesting conversations, and seeing some unbelievable sites, he’s in the thick of the action.

For instance, Buttrill recently took some shots at ISIS as he was out getting reports from the front line.

Click HERE for the rest of the article.

When a reporter, correspondent, researcher, journalist, or other non-combatant takes direct participation in hostilities, he/she loses any protection afforded to them by the LOAC.

If a journalist who is working in a “war” zone takes direct participation in hostilities, they lose any protection that they are afforded as a journalist for at least as so long as they are taking direct participation. Further, not only is such action unbecoming of a journalist, it shows a complete lack of respect for the law and confuses who might be a legitimate object of attack. Such confusion puts other journalists and protected persons at risk.

Richard White covered this story over at Insurgentsia.com, and so I will refrain from going on a long-winded rant about Mr. Buttrill. However, I will say this, as Mr. Buttrill was apparently in the Marines at one point in time I am sure he has been instructed on the LOAC. Therefore, he should know that the U.S. military prides itself on abiding by the LOAC and that it is the non-state groups such as ISIS and al-Queda who are notorious for failing to follow the law. It is disappointing to see someone fall victim to the same mentality as those who fight for these terrorist organizations.

Note:  Politico.com has reported that due to his conduct Mr. Buttrill was pulled from his assignment.  Also, as you can see below, Buttrill has since apologized via twitter.com for his actions.

*UPDATE DECEMBER 30, 2016:

I have interacted with many people on twitter who believe Mr. Buttrill has done nothing wrong and that he should not have been taken off  his assignment. Most of these people argue that armed non-state groups like ISIS attack and kill journalists regardless of their obligations under the LOAC and therefore Buttrill is justified in taking shots at them. They further argue that he is not giving up any protections afforded by the LOAC as ISIS doesn’t recognize or adhere to those protections, and thus he is not putting any journalists in harms way (as they already are). While I understand these sentiments, my counter argument would be that Buttrill was not exercising his right to self-defense and killing another human is murder when it is not justified. We cannot complain that ISIS (or anyone else) is killing or harming our journalists if our journalists are out there taking a direct participation in hostilities.

This is a reminder that there are far too many who have a total lack of understanding and respect for the law of war. This includes terrorists, unlawful combatants, insurgents, non-state actors, and unfortunately average citizens.

The LOAC permits civilian casualties when they are necessary to accomplish a legitimate military objective

by Travis Normand
December 28, 2016

This is a great opinion piece that was posted on WashingtonPost.com. I highly recommend taking a moment to read it. You can find the entire piece at WashingtonPost.com, as I have reposted only a part of it below.

The emphasis on counting civilian casualties ends up helping the Islamic State
by Rachel E. VanLandingham and Geoffrey S. Corn
September 7, 2016
WashingtonPost.com

This emphasis on precise, casualty-averse warfare may be distorting the public’s understanding of war and law. The public accounting of every allegation of coalition-caused civilian casualties on the Islamic State battlefield, and the outcome of every civilian casualty investigation, is conditioning both domestic and international audiences to expect that international law demands analogously low levels of civilian casualties in all wars and that this level can be met while successfully prosecuting the conflict. This is wrong. It is also dangerous.

* * *

The Pentagon should accompany its transparency initiatives with a much stronger reminder that the law of war often, even if unfortunately, permits civilian casualties when necessary to accomplish legitimate military objectives. And that it is almost always the Islamic State’s fault, not the coalition’s, when such casualties are inflicted. In an asymmetric war against an enemy that violates the law by hiding and fighting among civilians, these casualties are frequently a calculated price of attacks aimed at destroying enemy fighters and other military targets.

That is, civilian casualties often are the product of strikes conducted despite the knowledge that civilians are likely to be harmed. As long as coalition forces ensure that the law of war’s yardsticks are met — that the military advantage to be gained by a strike outweighs the potential harm to civilians, and that reasonable care has been taken in choice of weapons and tactics to minimize the effect on civilians — civilians may, and unfortunately will often be, killed and injured. That is the horrible essence of modern, lawful war, and a burden that our young warriors carry into battle. But the responsibility for the vast majority of this suffering lies at the feet of the illicit enemy.

Confusion regarding the law of war only incentivizes the Islamic State and similar groups to continue their illegal methods of fighting among civilians. In this vein, if the Pentagon continues to over-emphasize the rarity of civilian casualties during coalition airstrikes, it risks sending potentially delegitimizing shockwaves once airstrikes are used in close air support of ground forces retaking cities and villages, in which the Islamic State’s use of human shields and other illegal tactics will almost inevitably result in much higher civilian casualty numbers.

Read the entire original article HERE.