Category Archives: International Law

Israeli Soldier Convicted Of Manslaughter For Killing Wounded Palestinian

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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.

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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.”

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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

Finding the LOAC in Syria: 2 reports from the IRIN on the Syrian Rebels and IHL (LOAC)

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by Jessica Poarch

Last July the ICRC ruled that Syria was in a civil war bringing the conflict under the LOAC.* On 13 May, IRIN, a humanitarian news source sponsored by the UN, published two stories looking at how the Syrian rebels view the Laws of War. The first story, “Syrian rebels on IHL: In their own words,” is a collection of statements by different sections of the rebel fighters on their views on the rules applicable to the conflict. The statements are a telling collection of varying views that clearly exhibit the lack of uniformity in leadership and mission of the rebel fighters. The opinions range from that of a former Colonel of the Syrian Army now commanding a unit of the Free Syrian Army who has been educated on the principles of LOAC and feels that respecting the law is what separates the rebels from the Syrian government to a member of an Islamist group who only subscribes to the Shariah and fain no respect for international laws such as the LOAC.

The second story, “Sometimes you cannot apply the rules – Syrian rebels and IHL” is an analysis of the statements made by the rebels in the larger context of the rules governing the rebel fighters. This article uses the statements of the fighters regarding their views of the LOAC to show which sources of IHL rules they (the rebels) respect–International Law, in some cases, but mostly Islamic law. The article then goes on to explain the systemic issues faced by the rebel leaders in getting their troops to adhere to the rules.

The general conclusion that can be gleaned from these two articles is that there is no clear, agreed upon set of rules being followed by the rebel forces. Although there are groups who are attempting to educate fighters on the Laws of War, the lack of unified leadership is making the success of the process slow.

* For more detail see my July 18, 2012 post, HERE.

Ownership of “International Humanitarian Law”

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by Jessica Poarch

Who should be responsible for the stewardship of IHL (LOAC)? In his article published in the Winter 2013 Issue of the International Judicial Monitor, Richard J. Goldstone (First Chief Prosecutor for the ICTY) explains, “Until recent decades [IHL was] owned and fashioned by the military. They did not fall within the remit of civilian authorities. That ownership appears to have become lost and it has somehow, perhaps unwittingly, been ceded to civilian governments and to non-governmental organizations, both domestic and global. Today, this development appears to be taken very much for granted. This is unfortunate. We should examine the reason for this shift, ask whether a movement back would not be timely, sensible, and very much in the interests of the military establishment and, indeed, governments and their citizens.”

Goldstone’s article begins by explaining the history of IHL.  However, his article takes a curious turn towards the U.S.’s involvement with the international tribunal that is setup to prosecute war crimes and the Rome Statute (the Treaty that established the International Criminal Court (ICC)).

Goldstone explains that, although the U.S. has been very involved in aiding the international courts, it has refused to ratify the Rome Statute for fear that allowing U.S. citizens to fall under the jurisdiction of an International Tribunal would result in politically motivated prosecutions.

The author concludes: “In the result the ICC has jurisdiction to investigate and prosecute the nationals of any state for war crimes allegedly committed in the territory of one of the 121 nations that have to date ratified the Rome Statute. As remote as it might be, I would suggest that if a United States citizen were to be charged by the Court it would be highly embarrassing for his or her government and especially the military. Such a situation could be avoided if the United States military authorities were to regain ownership of humanitarian law. The most urgent and direct way of accomplishing this is for Congress to enact legislation that makes the core international war crimes defined in the Rome Treaty crimes under the domestic law of the United States. It would then be for the military judicial authorities to police those laws and investigate any of its own members who are alleged to have violated them. That would effectively oust the jurisdiction of the ICC.”

I find the author’s suggestion rather interesting.  U.S. Military personnel fall under the jurisdiction of the Uniform Code of Military Justice (UCMJ), which, if my understanding is correct, provides for the prosecution of war crimes. This suggest to me that the U.S. Military does have “ownership” of War Crimes prosecution in the U.S. and no additional legal framework is required to “oust” the jurisdiction of the ICC.

War Crimes prosecution is a delicate issue; if left completely up to the military it runs the risk of becoming victor’s justice but if shifted completely into the jurisdiction of the international tribunals, States must cede a certain level of sovereignty to that entity. It seems to me that this is not something the U.S. is willing to do regardless of if there is a domestic legal system in place that would prevent the ICC from gaining jurisdiction of a U.S. citizen.

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*A discussion of War Crimes under the Rome Statue:  See Section 1 of “War Crime under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes” by Knut Dormann.

*For more details about prosecuting War Crimes under the UCMJ please visit http://www.au.af.mil/au/awc/awcgate/awc-law.htm#warcrimes. There you will find multiple resources on the issue of War Crimes and Crimes Against Humanity.