tag:theconversation.com,2011:/uk/topics/international-humanitarian-law-14141/articlesInternational humanitarian law – The Conversation2024-01-30T00:45:06Ztag:theconversation.com,2011:article/2219772024-01-30T00:45:06Z2024-01-30T00:45:06ZThe UN’s top court didn’t call for a ceasefire in Gaza – how does NZ respond now?<p>The provisional measures issued by International Court of Justice (ICJ) in South Africa’s <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf">case against Israel</a> under the Genocide Convention was, on balance, a victory for Israel.</p>
<p>While South Africa’s application was not thrown out, and the ICJ accepted it could rule on what is happening in Gaza, there was no provisional order for an immediate ceasefire.</p>
<p>This leaves New Zealand’s options less clear than in the <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">case of Russia and Ukraine</a>. In that instance, the ICJ urged that “the Russian Federation shall immediately suspend the military operations that it commenced” when it invaded.</p>
<p>Russia simply ignored the court, of course. But New Zealand will now have to take stock of what the ICJ has ordered in the case of Gaza. </p>
<p>This goes beyond the Genocide Convention. While the court found some of the assertions by South Africa were “plausible”, at this point it did not find that genocide was occurring. However, the ICJ was clearly disturbed by some of the rhetoric that has emerged from Israel during the conflict, which is also a humanitarian disaster.</p>
<p>It has ordered that Israel must carefully abide by the Genocide Convention, control its military, and “prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip”.</p>
<p>Significantly, Israel must report back to the court on what measures it has taken in a month’s time. So, even though the full case will now proceed in a process that could take years, the ICJ is watching matters closely. If Israel is not respecting the court’s provisional measures, the matter may quickly escalate.</p>
<h2>Push for humanitarian aid</h2>
<p>New Zealand will need to watch these next steps closely. The previous government focused on the “good faith” application of the Genocide Convention rules when it <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20230705-wri-06-00-en.pdf">joined the proceedings</a> in the Russia-Ukraine case. </p>
<p>As New Zealand highlighted then, the Genocide Convention was originally adopted with a dual purpose: to safeguard the very existence of human communities, and to confirm and endorse the most elementary principles of morality.</p>
<p>There is scope to expand New Zealand’s thinking on this further if it joins the next stage of the ICJ process over Gaza. This would need to focus not only on explicit acts of genocide, but also on the preconditions and context surrounding this most horrendous of all crimes, and the importance of a precautionary approach.</p>
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Read more:
<a href="https://theconversation.com/uns-top-court-puts-israel-on-notice-over-its-war-in-gaza-heres-what-its-judgement-could-mean-221985">UN's top court puts Israel on notice over its war in Gaza. Here's what its judgement could mean</a>
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<p>New Zealand also needs to focus on the ICJ’s ruling that “the State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”.</p>
<p>This is a direct reflection of <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/N23/424/87/PDF/N2342487.pdf?OpenElement">recent demands by the UN Security Council</a>: the parties to the conflict must allow safe and unhindered delivery of humanitarian assistance, at scale, directly to the civilian population of Gaza. </p>
<p>The importance of supporting such humanitarian assistance has been a <a href="https://www.mfat.govt.nz/en/countries-and-regions/middle-east/israel-hamas-conflict/">standard New Zealand demand</a> since this latest conflict began. How the government reconciles support for this principle at the same time as <a href="https://www.rnz.co.nz/news/political/507907/no-more-aid-for-un-aid-agency-until-peters-satisfied-luxon">pausing funding</a> for the UN Relief and Works Agency for Palestine Refugees (UNRWA) presents an awkward conundrum, however.</p>
<h2>Uphold international law</h2>
<p>The ICJ went one step further than ruling on the Genocide Convention by emphasising that “all parties to the conflict in the Gaza Strip are bound by international humanitarian law”.</p>
<p>This includes the court’s “grave concern about the fate of the hostages abducted during the attack in Israel on 7 October 2023 and held since then by Hamas and other armed groups”, and its call for their “immediate and unconditional release”.</p>
<p>This is where New Zealand can provide the most support. One of the shortcomings of South Africa’s case was that it focused on the most significant issue of all – genocide – but risked eclipsing dozens or hundreds of other possible violations of international humanitarian law.</p>
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Read more:
<a href="https://theconversation.com/gaza-high-numbers-of-journalists-are-being-killed-but-its-hard-to-prove-theyre-being-targeted-221042">Gaza: high numbers of journalists are being killed but it's hard to prove they're being targeted</a>
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<p>Taking hostages, murder, sexual violence, restricting humanitarian assistance, attacking hospitals, schools and places of worship, and collective punishment of civilians are all crimes. As such they are regulated by the 1949 Geneva Convention on the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949">Protection of Civilians in Times of War</a>.</p>
<p>Furthermore, the <a href="https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-EN.pdf">ICJ has already ruled</a> that Israel is bound by these treaty obligations within its occupied territories on the West Bank. The next step at the ICJ should be to focus on the applicability and accountability required by all sides in the conflict under the Geneva Conventions.</p>
<p>Just as individuals should be held accountable for war crimes and crimes against humanity at the International Criminal Court, states should be held accountable under international humanitarian law at the ICJ, as much as they are for allegations of genocide. </p>
<p>If New Zealand wants to help bring justice to this terrible conflict, these are the main areas where it should now plan to contribute.</p>
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<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Court of Justice stopped short of calling for a ceasefire in Gaza. New Zealand now needs to refine its foreign policy to play a constructive role in what happens next.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206922024-01-09T12:59:46Z2024-01-09T12:59:46ZSouth Africa’s genocide case against Israel: expert sets out what to expect from the International Court of Justice<p><em>The International Court of Justice (ICJ) will be <a href="https://www.icj-cij.org/node/203397#:%7E:text=On%20Thursday%2011%20and%20Friday%2012%20January%202024%2C%20the%20International,Israel%20on%2029%20December%202023.">holding public hearings</a> on 11-12 January at the Peace Palace in The Hague, the seat of the court, in a case brought by South Africa against Israel. South Africa has accused Israel of violating the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">1948 Genocide Convention</a> in its <a href="https://theconversation.com/after-3-months-of-devastation-in-the-israel-hamas-war-is-anyone-winning-220644">military bombardment and siege of Gaza</a>, which started after the deadly 7 October Hamas attack on Israel. Both Israel and South Africa have ratified the genocide convention. We asked human rights and international law expert Magnus Killander for his insights.</em></p>
<h2>What is the International Court of Justice?</h2>
<p>The International Court of Justice (<a href="https://www.icj-cij.org/home">ICJ</a>) is one of many international courts. It is the most prominent and widely regarded as the most authoritative as it is the only judicial body set out in the <a href="https://www.un.org/en/academic-impact/un-charter#:%7E:text=The%20UN%20Charter%20is%20the,procedures%20of%20the%20United%20Nations.">Charter of the United Nations</a>. It has general jurisdiction rather than being limited to specific areas of law such as the <a href="https://wcl.american.libguides.com/c.php?g=563260&p=3877828#:%7E:text=International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20(ITLOS)*&text=The%20International%20Tribunal%20for%20the%20Law%20of%20the%20Sea%20is,and%20application%20of%20the%20Convention.">International Tribunal for the Law of the Sea</a> or regional human rights courts such as the <a href="https://www.african-court.org/wpafc/">African Court on Human and Peoples’ Rights</a>. </p>
<p><a href="https://www.icj-cij.org/home">The ICJ</a> should be distinguished from the <a href="https://www.icc-cpi.int/">International Criminal Court</a> (ICC), which also has its seat in The Hague, in the Netherlands. The ICC can convict and sentence individual perpetrators for violations such as genocide, crimes against humanity and war crimes. In contrast the ICJ deals only with the responsibility of states for violations of international law, not with accountability of individuals. </p>
<p>Parallel to the process at the ICJ, the prosecutor of the <a href="https://www.icc-cpi.int/palestine">ICC has been investigating “the situation”</a> in Palestine for some time, and may prosecute those allegedly responsible for atrocities committed by all parties to the conflict.</p>
<h2>What is the International Court of Justice’s jurisdiction?</h2>
<p>It can hear cases brought by states (“contentious cases”) and requests by United Nations bodies, such as the <a href="https://www.un.org/en/ga/">General Assembly</a>, for advisory opinions. The ICJ has delivered judgments in close to <a href="https://www.icj-cij.org/index.php/contentious-cases">150 “contentious cases”</a> since its first judgment in 1949, and 27 advisory opinions since its first advisory opinion in 1948. </p>
<p>The first time a case was brought to the ICJ alleging violation of the Genocide Convention was in 1993 by <a href="https://www.icj-cij.org/case/91">Bosnia against Yugoslavia</a>. The second case was in 2019 <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">by The Gambia against Myanmar</a>. The third case was by <a href="https://www.icj-cij.org/case/182">Ukraine against Russia</a> following the Russian invasion of Ukraine in February 2022. </p>
<p>Of these cases the ICJ has so far only handed down a final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-JUD-01-00-EN.pdf">2007 Bosnian judgment</a>, 14 years after the case was initiated. </p>
<p>However, the ICJ has issued provisional measures in all the Genocide Convention cases, within a few months after the cases were brought to the court. Provisional measures are orders of the court to prevent irreparable harm. They bind the respondent state to refrain from certain actions until the court has delivered final judgment. The <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-SUM-01-00-EN.pdf">provisional measures in the Myanmar case</a> adopted by the court in January 2020 prohibited the state from, among other things, taking action against the minority Rohingya group by</p>
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<p>(a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.</p>
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<p>While there have been fewer killings of Rohingya since the provisional measures, their <a href="https://www.hrw.org/news/2023/08/20/future-bleak-rohingya-bangladesh-myanmar">situation remains precarious</a> both in Myanmar and in Bangladesh, where many of them have taken refuge.</p>
<p>In the provisional measures order in <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">Ukraine v Russia</a> in 2022 the ICJ ordered Russia to immediately cease its military operations in Ukraine and ensure that any military units or irregular armed units conduct military operations. However, Russia’s war on Ukraine continues.</p>
<h2>What are the conditions for having a case heard by the ICJ?</h2>
<p>1) There must be a substantive jurisdictional basis for bringing the case. This can be, for example, by agreement by the parties or, as in the case under discussion, that both states are parties to a multilateral treaty that provides for disputes between state parties to be heard by the ICJ. <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">Article IX of the Genocide Convention</a> is a case in point.</p>
<p>Israel ratified the Genocide Convention <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1950</a> and South Africa <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">in 1998</a>. Palestine has been a <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-1&chapter=4">party to the Genocide Convention since 2014</a> and <a href="https://www.icj-cij.org/states-entitled-to-appear">may bring cases before the ICJ</a>, but hasn’t done so. </p>
<p>2) The state bringing the case must normally have an interest in the case. However, this does not apply to certain types of violations where all states in the world are considered to have an interest. Examples include alleged violations of the Genocide Convention and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading">Convention against Torture</a>. In its judgment in the 2022 case <a href="https://www.icj-cij.org/sites/default/files/case-related/178/178-20220722-jud-01-00-en.pdf">against Myanmar on preliminary objections</a>, the ICJ stated that any state can bring a case to it in relation to a suspected violation by another state that is party to the Genocide Convention. </p>
<h2>The process</h2>
<p>The first step in the case is the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20240103-pre-01-00-en.pdf">public hearing on provisional measures</a>. South Africa and Israel are allocated two hours each to present their arguments on provisional measures. A decision on provisional measures is usually taken within one or two months after the public hearing. </p>
<p>The ICJ only makes a provisional assessment of the case to issue provisional measures. Thus even if the ICJ issues provisional measures against Israel, it does not necessarily follow that the court will – in its final judgment – find that Israel has violated the Genocide Convention. </p>
<p>After a provisional measures decision, the ICJ will proceed to determine any preliminary objections raised by Israel, such as whether the court has jurisdiction to hear the case on the merits, and whether South Africa has standing to bring the case. </p>
<p>If the preliminary objections are unsuccessful, the ICJ will make a judgment on the merits of the case in which it determines whether Israel has violated the Genocide Convention. The process until a <a href="https://www.icj-cij.org/index.php/contentious-cases">final judgment takes several years</a>. In many cases final judgment has taken a decade or more. </p>
<p>Other states may intervene in a case, as many have done, for example, in the <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20230927-pre-01-00-en.pdf">Ukraine v Russia case</a>. </p>
<h2>What action can the court take?</h2>
<p>The ICJ provides declaratory orders. In its 2007 final judgment in the <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">Bosnia v Serbia and Montenegro case</a>, the ICJ found that Serbia had violated the Genocide Convention by not taking action to prevent the genocide in Srebrenica, and by having failed to transfer <a href="https://www.britannica.com/biography/Ratko-Mladic">Ratko Mladic</a>, who commanded the Bosnian Serb army that massacred Bosnian civilians, to the <a href="https://www.icty.org/">International Criminal Tribunal for the Former Yugoslavia</a>. </p>
<p>Other claims of genocide were dismissed by a majority of the court. The court held that the declaration of a violation was a sufficient remedy, and that the court should not provide any other remedies in the case such as compensation.</p>
<p>The orders of the ICJ are binding on states. Nevertheless, they are often ignored. This is in line with the general difficulty of enforcing international law, in particular <a href="https://www.ohchr.org/en/instruments-and-mechanisms/international-human-rights-law">international human rights law</a> and <a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">international humanitarian law</a>.</p>
<p>The <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">provisional measures requested by South Africa</a> include that Israel should suspend military activities in Gaza, stop killing Palestinians and prevent forced displacement and deprivation of access to adequate food, water, fuel, shelter and sanitation. </p>
<p>The ICJ can grant provisional measures <a href="https://www.icj-cij.org/sites/default/files/case-related/182/182-20220316-ord-01-00-en.pdf">different from those requested</a>. While it is clear that the prevention of humanitarian assistance leading to <a href="https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza">starvation</a>, forced displacement and <a href="https://www.lawfaremedia.org/article/legal-questions-answered-and-unanswered-in-israel-s-air-war-in-gaza">indiscriminate bombings</a>, taken together with statements by Israeli officials (see paragraphs 101-107 of <a href="https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf">South Africa’s submission to the ICJ</a>), could constitute violations of the Genocide Convention, it is less clear that this means no military action whatsoever may be taken by Israel against Hamas. </p>
<p>Following its own precedent in earlier cases under the Genocide Convention, it seems clear that the ICJ should issue provisional measures. What such measures the court will order remains to be seen.</p><img src="https://counter.theconversation.com/content/220692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Magnus Killander does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is precedent showing the ICJ may grant provisional measures within a month or two of the hearing, preventing Israel from causing further harm in Gaza.Magnus Killander, Professor, Centre for Human Rights in the Faculty of Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2191572023-12-13T18:24:59Z2023-12-13T18:24:59ZThe Middle East and Ukraine: The rules of war depend on the nature of the conflict<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/the-middle-east-and-ukraine-the-rules-of-war-depend-on-the-nature-of-the-conflict" width="100%" height="400"></iframe>
<p>Even in war, there are rules that are supposed to be followed by way of several multilateral legal frameworks that govern warfare and issues like the treatment of combatants and civilians. </p>
<p>Understanding what rules apply to what types of conflicts is important because it can lead to the greatest protections for civilians caught in the crossfire, and greater accountability to perpetrators of war crimes. At a time when two major wars are being waged — in the Middle East and in Ukraine — this understanding takes on a special urgency.</p>
<p>Historically, the laws of war have been <a href="https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0%EF%BB%BF">divided into two categories</a>: <em>jus in bello</em> that pertains to acceptable conduct in war; and <em>jus ad bellum</em>, which involves adaptable justifications for going to war.</p>
<p>Let’s examine <em>jus in bello</em>, <a href="https://doi.org/10.1017/S181638310900023X">more commonly known as international humanitarian law.</a></p>
<p>The two primary sources for international humanitarian law are multilateral treaties — including the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907">Hague Convention IV</a> of 1907, the four <a href="https://ihl-databases.icrc.org/en/ihl-treaties/geneva-conventions-1949additional-protocols-and-their-commentaries">Geneva Conventions</a> of 1949 and what are known as the <a href="https://ihl-databases.icrc.org/en/ihl-treaties/geneva-conventions-1949additional-protocols-and-their-commentaries">Additional Protocols</a> of 1977 — along with <a href="https://ihl-databases.icrc.org/en/customary-ihl">customary international law</a>, the unofficial rules governing the conduct of hostilities.</p>
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<a href="https://theconversation.com/can-israel-and-hamas-be-held-to-account-for-alleged-crimes-against-civilians-215705">Can Israel and Hamas be held to account for alleged crimes against civilians?</a>
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<h2>Three principles</h2>
<p>Contemporary international humanitarian law is based on three important principles: distinction, military necessity and proportionality.</p>
<p>The <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-48/commentary/1987">principle of distinction</a>, formalized in the Additional Protocols, refers to military obligations to differentiate between combatants and civilians when military leaders decide who to target.</p>
<p>This requires combatants to distinguish themselves from non-combatants, usually accomplished by wearing uniforms. It also requires combatants to only target military objectives. </p>
<p>Military necessity is used as a guide to determine what counts as a legitimate military objective. This principle is an attempt to balance an aggressor’s need to gain military advantage with minimizing suffering. While mentioned in several multilateral treaties, neither the Geneva Conventions nor Additional Protocols explicitly codify this important concept.</p>
<p>Lastly, the principle of proportionality is an attempt to provide guidance to military commanders about how to balance the value of a particular military objective with humanitarian concerns. <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51?activeTab=undefined">Articles 51</a> <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-57?activeTab=undefined">and 57</a> of the Additional Protocols formalize this principle.</p>
<h2>Relevance to ongoing wars</h2>
<p>Applying international humanitarian law to the Russia-Ukraine war is straightforward. Because the conflict is between two states and both Russia and Ukraine are signatories to all four Geneva Conventions, the conflict is an international armed conflict and those conventions completely apply.</p>
<p>In March 2023, the International Criminal Court issued an <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">arrest warrant for Russian President Vladimir Putin</a>, charging him with war crimes, including the unlawful deportation and transfer of children.</p>
<p>In terms of the Israel-Hamas war, the application of international humanitarian law is more complicated because it’s unclear whether it can be considered an international or non-international armed conflict. If Hamas is an independent militant organization not fighting on behalf of an existing Palestinian state, then the current conflict would be a non-international armed conflict.</p>
<p>That means only <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-3">Common Article 3</a> of the Geneva Conventions would apply. This is important because Common Article 3 offers fewer protections to combatants and civilians. </p>
<p>For example, while prisoners of war and civilians must be “treated humanely” according to Common Article 3, that’s a far cry from the full range of protections in existing multilateral treaties.</p>
<h2>Palestinian statehood in question</h2>
<p>However, if the Israel-Hamas war is considered an international armed conflict, the situation is different. <a href="https://opiniojuris.org/2023/11/09/israels-war-in-gaza-is-not-a-valid-act-of-self-defence-in-international-law/">Some argue</a> that because the situation in Gaza involves an ongoing occupation, the conflict is international in nature and the Geneva Conventions apply.</p>
<p>This stance is obviously unacceptable to the Israeli government because it would imply that Palestine is a state and therefore Hamas fighters ought to receive full prisoner-of-war protections.</p>
<p>But even if Palestine is considered a state, there is no reason that Hamas fighters should be considered prisoners of war. <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949">Geneva Convention III</a> is quite explicit about who qualifies for that status. </p>
<p>The convention states that all those taking part in hostilities must conduct “… their operations in accordance with the laws and customs of war.”</p>
<p>The Oct. 7 attacks in Israel killed some 1,200 people. Since that time, <a href="https://www.reuters.com/world/middle-east/hamas-fires-rockets-deep-into-israel-setting-off-sirens-tel-aviv-2023-11-10/">Hamas has launched hundreds of rockets into Israel</a>, indiscriminately targeting population centres. Israel has retaliated with an unprecedented use of force in the Gaza Strip, <a href="https://www.cnn.com/middleeast/live-news/israel-hamas-war-gaza-news-12-13-23/index.html#:%7E:text=Gaza%20death%20toll%3A%20The%20death,not%20independently%20verified%20these%20numbers.">killing more than 18,000 people.</a></p>
<h2>Violating international law</h2>
<p>Hamas’s deliberate targeting of civilians and taking of hostages are in direct violation of international humanitarian law. </p>
<p>The International Criminal Court has an open investigation into alleged war crimes committed in Palestine by both Hamas and Israel, which it began in 2015. <a href="https://www.icc-cpi.int/news/icc-prosecutor-karim-khan-kc-concludes-first-visit-israel-and-state-palestine-icc-prosecutor">ICC prosecutor Karim Khan recently visited Israel</a> and called on both sides to respect their obligations to adhere to international humanitarian law.</p>
<p>There are growing international calls for a ceasefire. More than 150 members of the United Nations General Assembly, <a href="https://www.cbc.ca/news/politics/canada-sustainable-ceasefire-israel-gaza-1.7056626">including Canada</a>, have voted in favour of a <a href="https://www.cnn.com/2023/12/12/middleeast/ceasefire-vote-gaza-israel-un-intl">resolution calling for a ceasefire</a>. <a href="https://www.bbc.com/news/live/world-middle-east-67687628">Ten members voted against</a> the resolution, including Israel and the United States. </p>
<p>The U.S. also <a href="https://www.reuters.com/world/middle-east/un-vote-delayed-demand-gaza-humanitarian-ceasefire-2023-12-08/">recently vetoed a UN Security Council resolution</a> for a ceasefire.</p>
<p>As developments unfold, it’s important to keep in mind that whether an armed conflict is classified as international or non-international has a significant impact on the protections afforded combatants and civilians. </p>
<p>In the absence of a ceasefire, that category of classification will also affect the level of accountability to which perpetrators of war crimes will be held.</p><img src="https://counter.theconversation.com/content/219157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bryan Peeler does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In war time, the type of conflict determines what formal rules of war apply. But how to determine the nature of the conflict?Bryan Peeler, Assistant Professor, Political Studies, University of ManitobaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2193612023-12-11T13:14:52Z2023-12-11T13:14:52ZIsrael’s mass displacement of Gazans fits strategy of using migration as a tool of war<figure><img src="https://images.theconversation.com/files/564659/original/file-20231210-17-jqac5a.jpg?ixlib=rb-1.1.0&rect=24%2C16%2C5439%2C3620&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palestinians fleeing the northern part of the Gaza Strip on Nov. 10, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinians-leave-from-the-northern-part-of-the-gaza-to-news-photo/1775101923?adppopup=true">Belal Khaled/Anadolu via Getty Images</a></span></figcaption></figure><p>As a result of the monthslong Israeli air and ground campaign in northern Gaza Strip, <a href="https://www.unrwa.org/newsroom/official-statements/aqaba-process-joint-statement-gaza%E2%80%99s-humanitarian-situation">more than 1.8 million</a> of the strip’s population have been displaced from their homes. And with the operation <a href="https://www.pbs.org/newshour/show/israel-expands-gaza-invasion-south-forcing-many-to-flee-areas-previously-considered-safe">heading into Gaza’s south</a>, many are now fleeing areas they were told would be safer.</p>
<p>This mass displacement – some <a href="https://www.unrwa.org/newsroom/official-statements/aqaba-process-joint-statement-gaza%E2%80%99s-humanitarian-situation">80% of the Gaza population</a> – is a deliberate element of Israel’s military campaign, with complex objectives. In the early stages of the conflict, the Israeli military said it was emptying areas for <a href="https://www.aljazeera.com/news/2023/10/13/israel-orders-1-1-million-people-in-gaza-to-move-south-what-to-know">civilians’ own safety</a> – despite mass evacuation orders being against international law, except in <a href="https://guide-humanitarian-law.org/content/article/3/evacuation-1/">very discrete scenarios</a>.</p>
<p>Since then, other longer-term objectives have been touted by voices in and around the Israeli government. On Oct. 17, 2023, the <a href="https://www.izs.org.il/">Misgav Institute for National Security and Zionist Strategy</a>, an Israeli think tank with links to the government, published a paper <a href="https://www.middleeastmonitor.com/20231024-israel-think-tank-linked-to-netanyahu-promotes-unique-opportunity-to-ethnically-cleanse-gaza/">arguing that the current military campaign</a> presented “a unique and rare opportunity to evacuate the entire Gaza Strip.” </p>
<p>Meanwhile, a <a href="https://www.972mag.com/intelligence-ministry-gaza-population-transfer/">leaked document</a> from Oct. 13, purportedly from the Israeli intelligence ministry, proposed the permanent relocation of all or a portion of Palestinians in Gaza through three steps: set up tent cities in Egypt, create a humanitarian corridor, and build cities on the Sinai Peninsula. The document concluded that the relocation was “liable to provide positive and long-lasting strategic results.”</p>
<p>Similarly, Israel’s intelligence minister has promoted a plan to <a href="https://www.jpost.com/opinion/article-773713">resettle Gazan residents in countries around the world</a>, while a pro-Israeli government news outlet has reported that Israeli Prime Minister Benjamin Netanyahu is eyeing a <a href="https://www.israelhayom.co.il/magazine/hashavua/article/14889801">plan to “thin” Gaza’s population</a> “to a minimum.”</p>
<p>To be clear, the Israeli government has not publicly confirmed any plan for Gaza’s population after the current conflict. But <a href="https://umaine.edu/polisci/people/nicholas-micinski/">as scholars</a> <a href="https://www.bakerinstitute.org/expert/kelsey-norman">of migration</a> <a href="https://scholar.google.com/citations?user=pMlRrUIAAAAJ&hl=en">and war</a>, we understand that displacement in conflict is often strategic – that is, it can serve specific short-term and long-term goals.</p>
<h2>Displacement as a tool of war</h2>
<p>Historically, population displacement has been used for three strategic reasons in conflicts:</p>
<ol>
<li><p>As a means of controlling or expelling a population seen as hostile or undesirable. This occurred during the war in <a href="https://www.ushmm.org/genocide-prevention/countries/bosnia-herzegovina/1992-1995">Bosnia from 1992 to 1995</a>, when the Serbian army <a href="https://hmh.org/library/research/genocide-in-bosnia-guide/">expelled or killed whole communities</a> of Bosniaks, resulting in the ethnic cleansing of <a href="https://books.google.com/books?id=IDMhDgCJCe0C&pg=PA127#v=onepage&q&f=false">82% of the non-Serb population</a>. More recently, nearly the entire <a href="https://www.cfr.org/article/ethnic-cleansing-happening-nagorno-karabakh-how-can-world-respond">Armenian population of the enclave of Nagorno-Karabakh fled</a> the threat of violence by Azerbaijan forces. In other cases, armed groups uproot civilians in order to subjugate them, rather than remove them en mass. From 1993 to 2002, security forces in Turkey <a href="https://journals.openedition.org/etudesrurales/9241">used systematic village evacuations</a> to control and pacify the Kurdish population as part of counterinsurgency operations against the Kurdistan Workers’ Party, or PKK. </p></li>
<li><p>As a grab for territory and resources. This occurred in the Western Sahara, which Morocco claims as part of its territory. Since 1975, the Moroccan government <a href="https://carnegieendowment.org/2013/10/04/western-sahara-beyond-complacency-pub-53214">has sought to repopulate</a> the former Spanish colony by moving Moroccan nationals in and forcing the <a href="https://www.ethicsandinternationalaffairs.org/journal/rethinking-the-concept-of-a-durable-solution-sahrawi-refugee-camps-four-decades-on">displacement of Sahrawis to refugee camps</a> in Algeria. As a result, the population of Moroccan-controlled Western Sahara is comprised of twice as many Moroccans as Sahrawis, and nearly 200,000 Sahrawis remain refugees. </p></li>
<li><p>As a sorting mechanism to weed out disloyal or disobedient populations. During the Syrian Civil War, President Bashar al-Assad’s government systematically depopulated rebel-held areas. Refugees returning to Syria from neighboring countries like Lebanon and Jordan – along with internally displaced Syrians – were <a href="https://euaa.europa.eu/sites/default/files/publications/2021_06_EASO_Syria_Situation_returnees_from_abroad.pdf">put through laborious security checks</a> to vet their loyalty and <a href="https://pomeps.org/beyond-ethno-sectarian-cleansing-the-assortative-logic-of-forced-displacement-in-syria">ensure they do not pose a threat to the Assad regime</a>.</p></li>
</ol>
<h2>Permanent displacement</h2>
<p>In the context of the current conflict in Gaza, all three strategies of population displacement – as control, territorial expansion and sorting – have been reportedly suggested by officials or others with Israeli government ties. </p>
<p>Israel has leveraged the threat of mass exodus of Palestinians to the Sinai Peninsula in negotiations with Egypt. Reports suggest that Israel has floated the idea of <a href="https://www.middleeasteye.net/news/israel-palestine-war-netanyahu-lobbied-eu-push-egypt-accept-gaza-refugees">paying off Egypt’s massive International Monetary Fund debt</a> in exchange for the country hosting refugees from Gaza, or <a href="https://www.ynet.co.il/news/article/hjiyigczt">offering large aid packages</a> in exchange for setting up temporary camps in Sinai.</p>
<p>However, Egypt <a href="https://www.theguardian.com/world/2023/nov/02/why-egypt-has-not-fully-opened-its-gaza-border-for-fleeing-palestinians">has refused to open its border</a> beyond allowing a few hundred Palestinians with dual citizenship and several dozen critically injured individuals to cross.</p>
<p>The mass displacement of Palestinians from Gaza on a permanent basis – be it to Egypt or throughout the world – is unlikely, as it would require agreement from would-be host countries and the compliance of Palestinians, though the chief of the United Nations Relief and Works Agency recently cautioned that Israel is <a href="https://www.latimes.com/opinion/story/2023-12-09/israel-gaza-hamas-united-nations-humanitarian-relief">continuing</a> to pursue this strategy. Moreover, the permanent resettlement of Palestinians from Gaza would amount to ethnic cleansing, something the U.N. <a href="https://www.ohchr.org/en/press-releases/2023/10/un-expert-warns-new-instance-mass-ethnic-cleansing-palestinians-calls">has already warned of</a>.</p>
<p>Any temporary displacement from Gaza would require a guarantee of the right to return for the displaced, and a commitment from Israel that there would be a rebuilt Gaza to return to – and neither is certain.</p>
<h2>‘Indefinite’ occupation</h2>
<p>One option being discussed by Netanyahu is for Palestinians in Gaza to <a href="https://www.bloomberg.com/news/articles/2023-11-07/netanyahu-plans-security-control-over-gaza-for-indefinite-time">live under Israeli security controls for an “indefinite period</a>,” as they did before Israel’s withdrawal from Gaza in 2005. </p>
<p>Such a move would be in line with Israel’s security goal of removing Hamas from its borders. Reoccupation – or even annexation, as some Israeli analysts have <a href="https://www.israelhayom.com/2023/10/17/gaza-the-case-for-annexation/">promoted</a> – of parts of northern Gaza, coupled with the depopulation of these areas, would enable the Israeli military to turn these areas into buffer zones.</p>
<p>But occupation is very resource and labor intensive. Israel will be reluctant to commit to rebuilding Gaza, patrolling the streets and carefully monitoring and governing the population. And an indefinite occupation would put Israeli soldiers at risk and likely become unpopular with the Israeli public and the international community. Already, U.S. President Joe Biden has <a href="https://www.cnn.com/2023/10/15/politics/biden-60-minutes-interview-gaza-israel/index.html">warned Israel against the reoccupation</a> of Gaza, calling the option “a big mistake.”</p>
<h2>Filtering for Hamas</h2>
<p>An alternative to a full occupation is for Israel to <a href="https://www.npr.org/2023/12/08/1218100645/the-israeli-military-keeps-pushing-into-central-and-southern-gaza">continue to drive the Palestinians in Gaza further south</a>, and only allow those deemed not to pose a threat to Israel back in northern Gaza. Israel has stated its intention is to <a href="https://www.npr.org/2023/11/05/1210734100/israel-says-its-goal-is-to-remove-hamas-from-power-what-comes-next-is-unclear">eradicate Hamas</a>. To that end, it has pushed civilians into increasingly smaller areas in the south, with the implication being that those who fail to leave are suspect.</p>
<p>Mark Regev, a senior adviser to Netanyahu, <a href="https://edition.cnn.com/videos/world/2023/12/05/the-lead-mark-regev-jake-tapper-live.cnn">claimed as much in an interview with CNN</a>: “We … asked all the civilians to leave, and most of them did. … One has to ask: They had ample time to leave, why didn’t they heed the advice to leave the area?”</p>
<p>Of course, the implication that those not fleeing are Hamas fighters or supporters ignores the plight of immobile populations like the elderly, disabled and orphans. It also puts the onus on civilians to know where the evacuation zones are. </p>
<p>After the seven-day pause in fighting, Israel resumed the bombardment and began issuing evacuation orders using a numbered grid of neighborhoods in Gaza, <a href="https://www.theguardian.com/world/2023/dec/02/israeli-grid-system-makes-life-in-gaza-macabre-game-of-battleships-say-aid-workers">splitting the strip into more than 600 areas</a>. The Israeli military said this is to protect civilians; however, it could also serve as a crude method of differentiating civilians from Hamas and other militants – the assumption being that people who stay will be viewed as as potential threat.</p>
<figure class="align-center ">
<img alt="A map of the Gaza strip with lots of zones labeled as numbers" src="https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=351&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=351&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=351&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=441&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=441&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564652/original/file-20231210-21-v28qju.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=441&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Map shared by an Israeli military official depicting zones in the Gaza Strip.</span>
<span class="attribution"><a class="source" href="https://twitter.com/AvichayAdraee/status/1733036333352767914/photo/1">@AvichayAdraee/Twitter</a></span>
</figcaption>
</figure>
<p>Indeed, images emerged on Dec. 7 of <a href="https://www.theguardian.com/world/2023/dec/08/footage-idf-israel-military-parading-palestinian-men-around-in-underwear">Israeli soldiers detaining seminaked Palestinian men</a> on their knees at gunpoint, allegedly filtering for Hamas fighters.</p>
<p>Controlling Gaza’s population through the use of zones, formal occupation or resettlement elsewhere are strategies that have been repeatedly suggested during the course of the conflict. Which of them, if any, comes to fruition will depend not just on the actions of Israelis and Palestinians, but also on other states and international organizations – namely Egypt, the United States and the United Nations.</p>
<p>And to greater or lesser degrees, all three entities have <a href="https://www.france24.com/en/live-news/20231128-us-warns-israel-over-southern-gaza-displacements">warned Israel against the strategic use</a> of forced displacement to serve its political and military ends. After all, “forcible transfer” is in itself a <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule129">crime under international law</a>. The question now is whether such factors will influence how Israeli officials use strategic displacement – and what it will mean for the future of the Palestinians in Gaza.</p><img src="https://counter.theconversation.com/content/219361/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mass forced movement of people has been used in conflicts to serve three goals: population control, territorial expansion and as a sorting mechanism. All three could be in play in Gaza.Nicholas R. Micinski, Assistant Professor of Political Science and International Affairs, University of MaineAdam G. Lichtenheld, Executive Director of the Immigration Policy Lab, Stanford UniversityKelsey Norman, Fellow for the Middle East, Rice University's Baker Institute for Public Policy, Rice UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2186862023-12-01T13:39:32Z2023-12-01T13:39:32ZWhy all civilian lives matter equally, according to a military ethicist<figure><img src="https://images.theconversation.com/files/562255/original/file-20231128-22-svbtks.jpg?ixlib=rb-1.1.0&rect=103%2C25%2C8510%2C5613&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The scene in the Bureij refugee camp following an Israeli bombardment of the Gaza Strip on Nov. 14, 2023.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IsraelPalestiniansBuriedInRubble/8cbb263c97d94eed9d66f53d553e2a3f/photo?Query=gaza%20destruction&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=735&currentItemNo=15&vs=true&vs=true">AP Photo/Adel Hana</a></span></figcaption></figure><p><a href="https://www.justsecurity.org/89960/enough-self-defense-and-proportionality-in-the-israel-hamas-conflict/">Some commentators</a> have criticized Israel for causing <a href="https://www.lawfaremedia.org/article/assessing-israel-s-approach-to-proportionality-in-the-conduct-of-hostilities-in-gaza">what is claimed</a> to be <a href="https://www.hrw.org/news/2023/11/14/gaza-unlawful-israeli-hospital-strikes-worsen-health-crisis">disproportionate harm</a> to civilians in its military response to Hamas’ Oct. 7, 2023, attack.</p>
<p><a href="https://newrepublic.com/article/118788/israels-war-gaza-morally-justified">Others have defended</a> Israel’s actions, claiming that such force – and the risk to civilians involved – is <a href="https://www.reuters.com/world/middle-east/defence-minister-says-israeli-forces-heart-gaza-city-2023-11-07/">necessary to eliminate</a> Hamas, which some Israelis believe poses an <a href="https://www.timesofisrael.com/gantz-israels-war-against-hamas-is-existential-and-carries-no-time-limit/#:%7E:text=The%20former%20defense%20minister%20and,%22Zionist%20and%20democratic%22%20values.">existential threat</a> to Israel.</p>
<p>As of Nov. 25, according to <a href="https://www.nytimes.com/2023/11/25/world/middleeast/israel-gaza-death-toll.html">health officials in the Gaza Strip</a>, more than 14,000 Palestinians have been killed, the majority of whom are women and children.</p>
<p><a href="https://www.aljazeera.com/opinions/2023/11/10/what-winning-the-war-means-for-israelis">But one of the arguments</a> given by defenders of Israel’s actions is that, tragic though these deaths are, the harm inflicted on civilians is proportionate because it is outweighed by the importance of destroying Hamas. </p>
<p>But what does “proportionate” mean in the context of civilian deaths? And how should we assess Israel’s claims of proportionality against critics who argue that Israel’s actions have caused disproportionate harm to civilians? As a <a href="https://philosophy.case.edu/faculty/jessica-wolfendale/">scholar of war crimes and military ethics</a>, I argue that to assess these claims requires careful thought about what it really means to value civilian lives. If all civilian lives are morally equal, as international law holds, then the lives of civilians on both sides of a conflict should be treated with the same degree of respect. </p>
<h2>Why targeting civilians is wrong</h2>
<p><a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1">International humanitarian law</a>, or IHL, prohibits direct attacks on noncombatants – a category that includes civilians as well as wounded and surrendered soldiers. IHL also prohibits direct attacks on civilian objects such as schools, religious centers and hospitals and other civilian infrastructure. </p>
<p>However, because it is impossible to avoid all harm to civilians in a war zone, <a href="https://casebook.icrc.org/a_to_z/glossary/proportionality#:%7E:text=The%20principle%20of%20proportionality%20prohibits,and%20direct%20military%20advantage%20anticipated">IHL permits</a> attacks on military targets that are likely to cause harm to civilians if two conditions are met: First, the foreseeable harm to civilians must be proportionate to the military advantage sought by the attack. And second, the choice of tactics and weapons – what is referred to in IHL as the “<a href="https://casebook.icrc.org/a_to_z/glossary/proportionality#:%7E:text=The%20principle%20of%20proportionality%20prohibits,and%20direct%20military%20advantage%20anticipated">means and methods</a>” – must also aim to minimize risk to civilians, even if it means putting more soldiers in harm’s way.</p>
<p>The prohibitions on directly targeting civilians and exposing civilians to disproportionate risk of harm exist because, under IHL, civilians have <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war">protected status</a> as long as they take “<a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war">no active part in the hostilities</a>.” This means that, as <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war">stated in the Geneva Conventions</a> – the set of <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">international treaties</a> governing the conduct of armed conflict – all civilians must be “treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” </p>
<p>Directly targeting civilians or exposing them to disproportionate harm is therefore wrong for the same reasons that it is wrong to kill or harm innocent people in peacetime. People who pose no threat to others deserve respect and protection from violence regardless of their nationality or group identity. To violate that respect in war is not only a <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">war crime</a> but a moral crime, which is why <a href="https://www.nytimes.com/article/israel-gaza-hamas-what-we-know.html">Hamas’ massacre</a> of at least 1,200 Israeli citizens and the taking of 240 hostages is rightly condemned as an atrocity. </p>
<figure class="align-center ">
<img alt="Protestors marching with placards that have photographs of individuals with 'Bring her home,' or 'Bring him home,' written at the bottom." src="https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562270/original/file-20231128-15-ggfica.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Israeli protesters in Tel Aviv call for the release of the hostages held in the Gaza Strip by Hamas on Nov. 28, 2023.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IsraelPalestinians/ef40ba52e7064a04b7fc9b089502fb9e/photo?Query=2023%20hostage&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1083&currentItemNo=11">AP Photo/Ariel Schalit</a></span>
</figcaption>
</figure>
<p>How should the lives of innocent people be weighed against important military objectives? </p>
<h2>Proportionality and moral assessment</h2>
<p>The condemnation of Hamas’ crimes is based on the same moral principle as the laws that protect noncombatants in war: All innocent people deserve protection.</p>
<p>However, <a href="https://www.jstor.org/stable/3557942">scholars</a> and legal experts <a href="https://doi.org/10.1093/oxfordhb/9780199943418.013.24">disagree</a> about how the legal framework laid out in the Geneva Conventions should be applied in war zones. </p>
<p>For example, in 1987 <a href="https://www.icrc.org/en/document/international-expert-meeting-report-principle-proportionality">the International Committee of the Red Cross</a> argued that the definition of “military advantage” – the advantage against which potential civilian harm must be weighed – should only include “ground gained” and “annihilating or weakening the enemy armed forces.” </p>
<p><a href="https://www.icrc.org/en/document/international-expert-meeting-report-principle-proportionality">But the 2016 U.S. Department of Defense Law of War Manual</a> claimed that “military advantage” should also include other goals such as “diverting enemy forces’ resources and attention.”</p>
<p>There is also disagreement about what counts as “civilian harm.” For example, scholar <a href="https://www.elac.ox.ac.uk/people/emanuela-chiara-gillard/">Emanuela-Chiara Gillard</a> <a href="https://www.chathamhouse.org/sites/default/files/publications/research/2018-12-10-proportionality-conduct-hostilities-incidental-harm-gillard-final.pdf">argues</a> that “civilian harm” should include psychological and physical harms; legal expert Dr. <a href="https://www.state.gov/biographies/beth-van-schaack/">Beth Van Schaack</a> <a href="https://www.justsecurity.org/32577/evaluating-proportionality-long-term-civilian-harm-law-war/">argues</a> that long-term harms should also be considered. </p>
<p>In short, there are no easy answers to questions about how to weigh harms against civilians against the value of military objectives. But while answers are difficult, there is a different way to frame this question: What does it mean – not just legally, but morally – to treat all civilian lives as equal, as the law requires?</p>
<p>As scholar <a href="https://philosophy.wvu.edu/faculty-and-staff/faculty-directory/matthew-talbert">Matthew Talbert</a> and I argue, the <a href="https://doi.org/10.1007/978-94-6265-611-6_11">first step in answering</a> this question is to ask what a military force would accept if it were “their” civilians who were at risk of harm from military action. </p>
<p>That is the standard we should apply when assessing potential military actions that threaten harm to enemy civilians. We <a href="https://doi.org/10.1007/978-94-6265-611-6_11">call this standard</a> the “principle of the moral equality of noncombatants.” For example, Israel argued that its <a href="https://www.cnn.com/2023/11/15/middleeast/shifa-hospital-gaza-idf-intl/index.html">attack on Shifa hospital</a> was justified because, it claimed, Hamas was hiding a command base and weapons under the hospital. </p>
<p>The <a href="https://www.nytimes.com/2023/11/12/world/middleeast/gaza-hospitals-shifa.html">hospital, which was running low</a> on fuel, food and water, housed patients, including premature babies, and civilians seeking refuge from the conflict. <a href="https://www.aljazeera.com/program/newsfeed/2023/11/26/dire-conditions-at-al-shifa-hospital-revealed-during-gaza-pause">According to footage</a> shown in <a href="https://www.aljazeera.com/gallery/2023/11/26/wounded-patients-left-at-al-shifa-hospital-face-dire-conditions">news reports</a>, the attack left the hospital seriously damaged, filled with debris and lacking essential supplies for the remaining patients, who include the elderly and infirm.</p>
<p>Israel has <a href="https://www.theguardian.com/world/2023/nov/19/idf-israel-army-footage-claims-hamas-tunnel-al-shifa-hospital-gaza">released footage</a> supporting its claim that there was a Hamas command center under the hospital. Does that mean Israel’s attack on the hospital meets the requirements of proportionality? In other words, was the harm to civilians caused by the attack – including the <a href="https://www.icrc.org/en/document/protection-hospitals-during-armed-conflicts-what-law-says">ongoing harm</a> resulting from the loss of a major hospital – proportionate to the military value of destroying a Hamas command base? </p>
<p>In applying the principle Talbert and I proposed in our paper, the question would be phrased as follows: If Hamas was hiding a control base under an Israeli hospital and it was Israeli civilians at risk, would Israel think that attacking the hospital would be justified? If the answer is “no,” then the attack against Shifa hospital is also not justified. </p>
<p>This is because if the risk to Israeli lives outweighs the benefits of capturing a Hamas command base, then the risk to Palestinian lives should be given the same weight and lead to the same conclusion. Under IHL, all civilians are legally entitled to the same protection, regardless of their nationality. </p>
<h2>Taking civilian lives seriously</h2>
<p>Unfortunately, the debate about proportionality in the conflict between Israel and Palestine is only the latest of many debates about proportionality and civilian deaths in war zones. </p>
<p>For example, since 2001, the United States’ drone program has killed at least <a href="https://www.theguardian.com/global-development/2021/sep/07/us-airstrikes-killed-at-least-22000-civilians-since-911-analysis-finds">22,000 civilians</a> in Afghanistan, Iraq, Syria, Pakistan and elsewhere. A <a href="https://www.nytimes.com/interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html">New York Times report</a> on these deaths found multiple instances of “flawed intelligence,” cover-ups and cases of mistaken identity. Despite this record, civilians deaths <a href="https://www.washingtonpost.com/world/2023/05/18/pentagon-drone-strike-syria-civilian-al-qaeda/">still occur</a>.</p>
<p>Using the principle of the moral equality of noncombatants to assess this track record would reveal whether the U.S. military is taking sufficient care to avoid harm to civilians. If the U.S. military would not accept these deaths – and the <a href="https://global.oup.com/academic/product/accountability-for-killing-9780199981724?cc=us&lang=en&">policies and practices</a> that contribute to them – if U.S. civilians were at risk, then these deaths are unjustified. </p>
<p>This would mean that the drone program must change in order to treat civilians in Syria, Pakistan and elsewhere with the respect to which they are <a href="https://doi.org/10.1525/nclr.2011.14.4.519">legally and morally entitled</a>. This example illustrates that to meet the standards of IHL and the <a href="https://www.justsecurity.org/35386/laws-war-nature-moral-function/">moral principles</a> that underlie those standards, military forces must apply the principle of the moral equality of noncombatants. There is no legal or moral justification, I argue, for treating some civilians lives as less important than others. </p>
<p>This is a demanding principle. Applying it would be difficult - military and political leaders would have to accept that there might be military objectives that are not important enough to justify risk to civilian lives. And it would require acknowledging that some military objectives might be so important that even harm to “their” civilians might be justified. </p>
<p>But one of the <a href="https://www.redcross.org/content/dam/redcross/atg/PDF_s/Family___Holocaust_Tracing/IHL_HumanRights.pdf">functions of IHL</a> is to “limit the suffering and damage caused by armed conflict.” This principle reflects the moral and legal status of civilians in IHL and could lead to greater respect for and protection of all civilians during conflict.</p><img src="https://counter.theconversation.com/content/218686/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Wolfendale does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Proportionality requires that lives of civilians on both sides of a conflict must be treated with the same degree of respect.Jessica Wolfendale, Professor of Philosophy, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2179702023-11-22T14:37:55Z2023-11-22T14:37:55ZGood Jew, Bad Jew: new book explores why the west views brutality against Ukrainians and Palestinians differently<p><em>In a recently published book Steven Friedman, who has written extensively on the political and social aspects of apartheid and post-apartheid South Africa, explores the racist underpinnings of the west’s responses to Israel’s war in Gaza. This is an extract from the book, <a href="https://www.witspress.co.za/page/detail/Good-Jew-Bad-Jew/?K=9781776148486">Good Jew, Bad Jew</a>.</em></p>
<p>Ugandan academic <a href="https://anthropology.columbia.edu/content/mahmood-mamdani">Mahmood Mamdani</a> sees a link between the violence of the coloniser and the slaughter of Jews and Slavs by the Nazis. The racial theories of <a href="https://www.britannica.com/biography/Houston-Stewart-Chamberlain">Houston Stewart Chamberlain</a> and others who claimed the Aryan race was superior meant that Jews and Slavs, who were both regarded as not Aryan, could be placed beyond the pale of civilisation and were thus candidates for the “laws of nature”, not of war. </p>
<p>According to <a href="https://www.amazon.com/Good-Muslim-Bad-America-Terror/dp/0385515375">Mamdani</a>, in World War II, the Nazis “observed the laws of war against the Western powers but not against Russia”, and not against Jewish civilians and resistance fighters. British, American and French prisoners of war were treated according to the rules of the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf">Third Geneva Convention</a>, but Russians were not.</p>
<p>A bizarre feature of this distinction between the “civilised” and those ripe for the slaughter was that the Nazis’ Jewish prisoners of war serving in the Western armies were not slaughtered. But Russian soldiers were. This does not mean that Jewish and non-Jewish prisoners were treated entirely equally. Jewish prisoners were usually separated from others and there is some evidence that <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3685079">they were treated more harshly</a>. </p>
<p>But the vast majority survived the war and there is no evidence that any were killed because they were Jewish. Scholars have made various attempts to explain this. But perhaps the most plausible explanation is one that none of them offers – that serving in a Western European or American army meant that Jews, in the eyes of their Nazi captors, had attained at least a sufficient degree of “Europeanness” to save them from death. Serving in the Russian military conferred no such “honorary Aryan” status because Soviet Russia was considered a mortal enemy of the Aryan race – a “non-Western” presence in Europe.</p>
<p><a href="https://encyclopedia.ushmm.org/content/en/article/gassing-operations">Nazi extermination camps</a>, where gas chambers were used as instruments of slaughter, were all situated in occupied Poland, not in Germany. There were concentration camps in Germany, but these were forced labour camps, not death camps. An obvious explanation for this seemingly odd fact is that the Nazis worried that Germans might learn what was happening in death camps, and might not share their government’s view that wholesale slaughter was acceptable. </p>
<p>This was similar to the tactics of the architects of apartheid in South Africa. They ensured that brutality directed at black people was usually imposed in areas away from the gaze of white people. But it seems unlikely that this explanation would hold. Apartheid showed that human rights abuses do not need to be moved to another country to hide them from the sight of the dominant group. </p>
<p>Rather, it seems likely that the reason was that which Mamdani’s analysis suggests: by siting the camps to the east of Germany, the Nazis were, in effect, removing them from Western Europe where such barbarism was not considered acceptable. The east of Europe became, in a sense, a colony inhabited by people who were not considered Aryan and therefore not fully European. They were thus subject only to the “laws of nature”.</p>
<h2>Anti-semitism, racism and genocide</h2>
<p>Nazi anti-Jewish bigotry was originally labelled racism while bigotry against people who were not white Europeans was not. The context of the situation of the camps helps to explain that. Bigotry was acceptable only if it was directed at people who were not European. Mamdani cites <a href="https://www.goodreads.com/en/book/show/335802">A History of Bombing</a>, by the Swedish author Sven Lindqvist. He <a href="https://www.amazon.com/Good-Muslim-Bad-America-Terror/dp/0385515375">observes</a> that the Nazi genocide was</p>
<blockquote>
<p>born at the meeting point of two traditions that marked modern Western civilization: ‘the anti-Semitic tradition and the tradition of genocide of colonised peoples’.</p>
</blockquote>
<p>The first was (mainly) the prejudice of the right. The second produced the less obvious but still real prejudices which justified colonisation and continue to underpin mainstream European attitudes. Mamdani <a href="https://www.amazon.com/Good-Muslim-Bad-America-Terror/dp/0385515375">notes</a>,</p>
<blockquote>
<p>The fate of the Jewish people was that they were to be exterminated as a whole. In that, they were unique – but only in Europe.</p>
</blockquote>
<p>This point, he adds, was not lost on intellectuals from colonised countries, such as the Martinican thinker Aimé Césaire, who <a href="https://www.jstor.org/stable/j.ctt9qfkrm">wrote that</a> the European bourgeoisie could not forgive Hitler for</p>
<blockquote>
<p>the fact that he applied to Europe colonialist procedures which until then had been reserved exclusively for the Arabs of Algeria, the ‘coolies’ of India, and the ‘niggers’ of Africa.</p>
</blockquote>
<p>This, of course, explains why a Europe that was justifiably appalled at the Nazi genocide had no great qualms about the wholesale slaughter of <a href="https://www.accord.org.za/ajcr-issues/the-colonial-legacy-and-transitional-justice-in-the-democratic-republic-of-the-congo/">Congolese</a> or about the <a href="https://theconversation.com/namibian-traditional-leaders-haul-germany-before-us-court-in-genocide-test-case-71222">Herero genocide</a>. </p>
<p>It might be argued that the reason was not bigotry but distance. Events in Africa were simply not noticed in Europe because they happened far away, and few people were aware of them. But Mamdani’s view that race prejudice was at work is supported by the fact that these attitudes persist today, when communications technologies ensure that the Western mainstream knows what is wrought on people in far-off places. A clear example is the attitudes prompted by the <a href="https://theconversation.com/calling-the-war-in-ukraine-a-tragedy-shelters-its-perpetrators-from-blame-and-responsibility-212080">Russian invasion of Ukraine</a>.</p>
<p>As numerous critiques have shown, European politicians and journalists <a href="https://www.aljazeera.com/opinions/2022/3/1/covering-ukraine-a-mean-streak-of-racist-exceptionalism">drew repeated attention</a> to the fact that the Ukrainians were white Europeans or “people like us” – and therefore “civilised” – in contrast to Iraqis, Yemenis, Syrians, Afghanis, Africans and, until not that long ago, Jews. </p>
<p>While this could be dismissed as the view of a bigoted few, the fact that Europe and the United States acted with a level of anger never directed at the Israeli state’s bombing of Palestinians, Saudi bombing of Yemen or Russian bombing of Muslim Chechnya and Syria suggests that Mamdani’s hypothesis explains this reaction too. That the United States led the charge, despite its own incursions into Iraq, Afghanistan and other countries, could be explained as plain hypocrisy but could also fit in with Mamdani’s thesis. The Russians had broken the rules of “civilised war” by treating white European Ukrainians in a manner that should be reserved for colonised subjects. Had they restricted themselves, like the West, to visiting misery only on people who were not European, such as the Syrians whom they had earlier bombed, they would have acted well within “civilised” bounds.</p>
<h2>Racial experiments</h2>
<p>But it seems not always possible to restrict barbarism to the colonies. Mamdani <a href="https://www.penguinrandomhouse.com/books/106769/good-muslim-bad-muslim-by-mahmood-mamdani/">shows</a> how European behaviour in Namibia set the stage for the Nazi genocide in Europe. It was in Namibia in the first years of the 20th century that Eugen Fischer, a German geneticist, conducted “racial experiments” on Herero people who were, as Jews would later be, interned in concentration camps. Fischer claimed to have shown that people born of mixed Herero and German parentage were</p>
<blockquote>
<p>physically and mentally inferior to their German parents.</p>
</blockquote>
<p>Adolf Hitler <a href="https://dnalc.cshl.edu/view/15745-Eugen-Fischer-about-1938.html">read</a> Fischer’s book that made this claim, and later appointed him rector of the university of Berlin. One of Fischer’s students was <a href="https://www.britannica.com/biography/Josef-Mengele">Josef Mengele</a>, who conducted experiments in Auschwitz on Jewish human beings and who also selected victims for the gas chambers.</p>
<p>Nazism was, seen through this lens, what Franz Fanon <a href="https://grattoncourses.files.wordpress.com/2019/12/frantz-fanon-richard-philcox-jean-paul-sartre-homi-k.-bhabha-the-wretched-of-the-earth-grove-press-2011.pdf">suggested it was</a>: a form of colonial rule extended into Europe. It took the “anti-Semitic tradition” to its logical conclusion by relegating Jews to the status of Africans whose slaughter Chamberlain celebrated in his letters to the German Kaiser hailing the murder of Hereros. </p>
<p>We can see current attempts to align Jews with white supremacy and ethnic nationalism as attempts to escape this history and to position “good”, Zionist, Jews as the white Europeans that Nazism insisted they were not. This gives added significance to the fact that the first American writings claiming a “new anti-Semitism” devoted much effort to blaming black people for anti-Semitism, thus signalling that Jews shared the prejudices of the white European mainstream and so should never have been treated as the Congolese and Hereros had been.</p>
<h2>Zionism and violence against Palestinians</h2>
<p>The current alliance between the Israeli state and other ethnic nationalists is a further example of the attempt to become European. Viewed in this way, today’s right-wing Zionism is not, as it is sometimes portrayed, a departure from the movement’s supposed humanist past. There is a direct line from Herzl, whose Zionism was inspired by the music of a virulent anti-Semite, to the Israeli state and its supporters who find sustenance in the prejudices of <a href="https://theconversation.com/donald-trump-and-the-rise-of-white-identity-in-politics-67037">Donald Trump</a> and <a href="https://theconversation.com/viktor-orbans-use-and-misuse-of-religion-serves-as-a-warning-to-western-democracies-146277">Viktor Orban</a>.</p>
<p>Much the same impulse surely drives British Jews who today unite with those who had once excluded them from their clubs and, more recently, stereotyped them in novels. These stereotypes are used to denounce left-wingers whom the right has <a href="https://www.amazon.com/Specter-Haunting-Europe-Myth-Judeo-Bolshevism/dp/0674047680">always associated with Jewishness</a>.</p>
<p>Mamdani uses the term “conscripts of Western power” to describe those who were once oppressed by the West but are <a href="https://www.amazon.com/Good-Muslim-Bad-America-Terror/dp/0385515375">now allied to it</a>. But today’s “good Jews” are not conscripts; they are volunteers.</p>
<p>His argument also sheds new light on the visits of right-wing anti-Semites to the Yad Vashem memorial to Nazi victims, a practice aptly described by the Israeli journalist Noa Landau as <a href="https://www.haaretz.com/opinion/2022-02-28/ty-article-opinion/.premium/the-writing-has-been-on-the-wall-for-yad-vashems-schnorrer-culture/0000017f-dc3a-d3ff-a7ff-fdbab8fd0000">“Shoah-washing”</a>. The Israeli anti-Zionist activist Orly Noy <a href="https://www.972mag.com/holocaust-antisemitism-israel-tool/">notes</a>:</p>
<blockquote>
<p>If Zionism previously justified its crimes against the Palestinian people in the name of the Holocaust, today it uses the Holocaust as a tool to justify antisemitism itself in exchange for political profit. More than that: it allows an antisemite to define what antisemitism is. This is the bitter truth we face today – for the official State of Israel, the concept of the Holocaust and antisemitism are purely political means, and as such can be manipulated, distorted, and deceived, just like any other political tool.</p>
</blockquote>
<p>Nazi crimes are used by the Israeli state to justify violence against Palestinians. But viewed through Mamdani’s distinction, and the core role that Nazi mass murder plays in Zionism’s justifications, the Israeli state’s use of the Nazi genocide may also be seen as a continuing attempt to remind ethnic nationalists that by forming an ethnic nationalist state, Jews should be treated as the Nazis would not treat them – as fellow Europeans, rather than as “darker people” who are deserving targets of racism.</p>
<p>Noy’s reference to allowing anti-Semites to define anti-Semitism may also shed light on why today’s anti-Semites are happy to accept the invitation to mourn a Nazi slaughter that they usually excuse. An obvious explanation is that their admiration for the Israeli state makes a little hypocrisy necessary. </p>
<p>If their favourite ethnic nationalist state wants heads of government who feel that the Nazi genocide has received an unfair bad press to shed a ritualised tear for its victims, that is a small price to pay. But they may also be signalling that the establishment of an ethnic nationalist state, which itself colonises the “darker races”, entitles “good Jews” to the European status that the Nazis had denied them. This, of course, does not mean that “bad Jews” – those who are not fervent ethnic nationalists – deserve the same consideration.</p>
<p>The distinction between European and colonial wars may also shed more light on why “good Jews”, those who support the Israeli state, are so firmly supported by Western centrists and liberals. If Jews are, as the opponents of Nazi racism insisted, European, then the Israeli state can be seen as another colonial enterprise, which, in the view of some of its opponents, <a href="https://www.palestine-studies.org/en/node/1652565">is exactly what it is</a>. And so its response to Palestinians is, in the eyes of its European allies, governed by the “laws of nature”, not by the “laws of war”. To brutalise Ukrainians is to violate the “laws of war” and is unacceptable to Europe and its heirs. To brutalise Palestinians is to follow the “laws of nature”. The Israeli state may do as it pleases to Palestinians without violating the code of those to whom “Europeanness” or “whiteness” is a valued identity – many of whom are liberals or centrists.</p>
<p>The distinction between European and colonial wars, then, throws important light on the new way in which Jews are viewed both by white supremacists and by mainstream Europe.</p>
<p><em><a href="https://www.witspress.co.za/page/detail/Good-Jew-Bad-Jew/?K=9781776148486">Good Jew, Bad Jew: Racism, anti-Semitism and the assault on meaning</a> is published by Wits University Press</em>.</p><img src="https://counter.theconversation.com/content/217970/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Friedman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The European bourgeoisie could not forgive Hitler because he applied in Europe colonialist procedures previously reserved for the supposedly inferior Arabs, Indians, and Africans.Steven Friedman, Professor of Political Studies, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173212023-11-09T13:49:51Z2023-11-09T13:49:51ZWhat is the rule of proportionality, and is it being observed in the Israeli siege of Gaza?<figure><img src="https://images.theconversation.com/files/558445/original/file-20231108-19-qs1pf1.jpg?ixlib=rb-1.1.0&rect=25%2C50%2C4224%2C2771&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When does bombing become disproportionate? </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinian-kid-walks-amid-debris-of-destroyed-buildings-news-photo/452897524?adppopup=true">Onur Coban/Anadolu Agency/Getty Images</a></span></figcaption></figure><p><em>More than <a href="https://apnews.com/article/israel-gaza-hamas-war-palestinians-photo-gallery-0d3960dc03ddd8b4fe3d81111cf177a0">a month after</a> Hamas fighters killed 1,400 Israelis in a shock assault, bombs continue to fall on the Gaza Strip in reprisal Israeli attacks.</em></p>
<p><em>The aerial campaign has left a heavy death toll – the health authority in the Hamas-run enclave has put the total number of Palestinians killed <a href="https://www.cnn.com/2023/11/06/middleeast/gaza-10k-deaths-intl/index.html">in excess of 10,000</a> – leading to questions over whether the <a href="https://verdict.justia.com/2023/10/31/proportionality-in-the-israel-gaza-conflict">response by Israel has been proportionate</a>.</em></p>
<p><em>“Proportionality” has a place in what is described as the “laws of war.” The Conversation turned to <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">Robert Goldman</a>, an expert on international humanitarian law at American University Washington College of Law, for guidance on some of the issues.</em></p>
<h2>What are the ‘laws of war’?</h2>
<p>The laws of war, also known as international humanitarian law (IHL), consist of the <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">four 1949 Geneva Conventions</a>, their two Additional Protocols of 1977, the <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">Hague Conventions of 1899 and 1907</a>, as well as certain weapons conventions. It also includes what is known as “<a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law">customary law</a>” – rules that are accepted by states are legally binding, but are not necessarily part of any formal treaty.</p>
<p>Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.</p>
<p>It is important to understand that modern IHL is not concerned with the reasons for, or the legality of, going to war. Rather, that is governed by the <a href="https://www.un.org/en/about-us/un-charter/full-text">United Nations Charter</a> and member states’ own practice.</p>
<p>It is also important to note that violations of the laws of war are <a href="https://www.axios.com/2022/03/22/russia-putin-war-crimes-icc-ukraine">notoriously hard to prosecute</a> and can be frustrated by lack of cooperation by the parties involved. </p>
<h2>Can civilian structures ever be lawfully attacked?</h2>
<p>Under IHL, civilian objects – such as homes, apartment blocks, hospitals and schools – <a href="https://www.reuters.com/world/europe/when-are-attacks-civilian-infrastructure-war-crimes-2022-12-16/">cannot be directly attacked</a>. This is because they, unlike munitions factories and command and control centers, do not effectively contribute to military action.</p>
<p>There is a caveat, however. If enemy forces take up positions in these civilian structures, then they become military objectives and can be lawfully bombed if the raid would yield the attacking party a definite military advantage.</p>
<p>That said, the stipulation does not allow unlimited license to attack such structures. The civilians located in those buildings are not lawful targets. As such, they retain the benefits of what is known as “<a href="https://lieber.westpoint.edu/proportionality-international-humanitarian-law-principle-rule/">the rule of proportionality</a>” as it relates to collateral civilian casualties – that is, deaths that are not intended by the attacking party but nonetheless result from their actions.</p>
<h2>What exactly is the rule of proportionality?</h2>
<p>The rule of proportionality applies to all armed conflicts as part of <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law">customary IHL</a>.</p>
<p>The proportionality rule operates as a general restraint on the conduct of parties engaged in hostilities and applies to attacks against lawful military targets located in the vicinity of civilians and civilian structures. It prohibits an attack that may be expected to cause incidental death or injury to civilians or the destruction of civilian objects that would be excessive – or disproportionate – in relation to the concrete and direct military advantage anticipated.</p>
<p>As such, the rule does not apply to enemy combatants or civilians who are directly participating in hostilities.</p>
<figure class="align-center ">
<img alt="A man kneels by a row of candles. He is behind a blue and white Israeli flag." src="https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/558490/original/file-20231108-25-muyric.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Hamas attack of Oct. 7 left Israelis mourning 1,400 dead.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protesters-led-by-bereaved-families-and-families-of-news-photo/1780911637?adppopup=true">Alexi J. Rosenfeld/Getty Images.</a></span>
</figcaption>
</figure>
<p>The proportionality rule requires those who plan a military operation to undertake in good faith a pre-attack analysis to determine the effects of the attack on civilians and civilian objects. </p>
<p>Such a determination requires a balancing of probabilities that take in foreseeable collateral civilian casualties and the relative importance of a particular military target. This is a relational concept – in other words, it can’t be quantified by stating any fixed number of civilians dead or injured for any one attack.</p>
<p>Given the uncertainties of warfare, the actual number of civilian casualties may be greater or less than what the pre-attack analysis predicted. So too might the military advantage gained.</p>
<p>As such, the lawfulness of such an attack must be based on an honest appreciation of the facts and circumstances known to military planners at the time, and not in hindsight.</p>
<p>In addition, planners of a particular attack must choose a weapon that ideally will avoid or minimize likely civilian collateral damage. </p>
<p>Importantly, planners of any attack must suspend or cancel the operation if it becomes apparent that the target selected is not a military objective, or if the attack will result in disproportionate collateral damage.</p>
<p>As such, the rule or proportionality requires the attacking party to place high priority on the timely collection and evaluation of target intelligence.</p>
<h2>Is the rule of proportionality being observed in Gaza?</h2>
<p>In concrete terms, the rule of proportionality – and its associated precautionary measures – require that the Israeli military undertake, in good faith, a pre-attack analysis of likely civilian casualties ensuing from each and every aerial attack in Gaza. That analysis should be based on timely, reliable and constantly updated target intelligence.</p>
<p>Israeli military spokesmen <a href="https://www.youtube.com/watch?v=XUR73tsck9E">have stated</a> repeatedly that they are <a href="https://www.cnn.com/middleeast/live-news/israel-news-hamas-war-10-13-23/h_d5b0c4f36adfd60ae650ee9f9caf1b7b">taking all feasible measures</a> to avoid excessive collateral damage in their bombing campaign.</p>
<p>But given the alarming civilian death toll in Gaza, I would submit that the burden has now shifted to the Israeli military to be more forthcoming in explaining to the public its target selection criteria. This is especially needed in those attacks that have caused <a href="https://www.reuters.com/world/middle-east/least-500-victims-israeli-air-strike-hospital-gaza-health-ministry-2023-10-17">extensive civilian deaths</a>.</p>
<p>For the same reason, I believe the onus is now on the Israeli military to explain what precautionary measures it has taken to avoid or minimize collateral damage, particularly given recent reports that it has <a href="https://www.businessinsider.com/israeli-air-force-photos-fighter-aircraft-armed-unguided-weapons-2023-10">used so-called “dumb bombs</a>” instead of precision-guided munitions in its campaign.</p>
<p><em>Part of this article appeared in an <a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">earlier article</a> published by The Conversation on Oct. 15, 2023.</em></p><img src="https://counter.theconversation.com/content/217321/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An expert on the laws of war argues that the burden is now on Israel to show that the heavy death toll in Gaza is proportionate to the military advantage gained.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2162022023-10-25T04:20:34Z2023-10-25T04:20:34ZGovernments and hackers agree: the laws of war must apply in cyberspace<figure><img src="https://images.theconversation.com/files/555727/original/file-20231025-18-4px7lq.jpg?ixlib=rb-1.1.0&rect=90%2C54%2C5916%2C3953&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-04-05-2022-2270339069">Shutterstock</a></span></figcaption></figure><p>There are rules in war. International humanitarian law regulates what combatants can and can’t do, with the goal of protecting civilians and limiting suffering.</p>
<p>Most of these laws were developed during the 19th and 20th centuries. But in our own century a new kind of battlefield has emerged: the domain of cyberattacks, digital campaigns and online information operations. All these have played a heightened role in Russia’s war in Ukraine and, increasingly, in the current Israel–Hamas conflict.</p>
<p>There is a persistent myth that cyberspace is a lawless wild west. This could not be further from the truth. There is a clear international consensus that existing laws of war apply online. </p>
<p>In the past month, we have seen three significant developments in this area. Rules for “civilian hackers” have begun to gain traction. A new international humanitarian report has recommended ways forward for governments, tech companies and others. And the International Criminal Court has for the first time signalled that it considers cyber warfare to fall within its jurisdiction.</p>
<h2>Rules for hacktivists</h2>
<p>On October 4 2023, two advisers to the International Committee of the Red Cross proposed <a href="https://blogs.icrc.org/law-and-policy/2023/10/04/8-rules-civilian-hackers-war-4-obligations-states-restrain-them/">a set of rules for “civilian hackers” during war</a>. The proposals include things like “do not conduct any cyber operation against medical and humanitarian facilities” and “when planning a cyber attack against a military objective, do everything feasible to avoid or minimize the effects your operation may have on civilians”.</p>
<p>The authors were motivated by <a href="https://blogs.icrc.org/law-and-policy/2023/10/04/8-rules-civilian-hackers-war-4-obligations-states-restrain-them/">evidence of online attacks</a> disrupting banks, companies, pharmacies, hospitals, railway networks and civilian government services.</p>
<p>Cyber, digital and information operations – used alongside “real-world” military operations – have risen into the mainstream during Russia’s war in Ukraine. Many operations are carried out by civilian groups not formally connected to the military.</p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/russia-is-using-an-onslaught-of-cyber-attacks-to-undermine-ukraines-defence-capabilities-177638">Russia is using an onslaught of cyber attacks to undermine Ukraine's defence capabilities</a>
</strong>
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<p>These manoeuvres are not spectacular. However, as <a href="https://nsc.crawford.anu.edu.au/department-news/20103/address-gchq-director-sir-jeremy-fleming">Jeremy Fleming</a> (former head of GCHQ, United Kingdom’s electronic spy agency) put it:</p>
<blockquote>
<p>it was never our understanding that a catastrophic cyberattack was central to Russia’s use of offensive cyber in their military doctrine. To think otherwise, misjudges how cyber has an effect in military campaigns. That’s not to say that we haven’t seen cyber in this conflict. We have – and lots of it.</p>
</blockquote>
<p>After the proposed rules for civilian hackers were published, something extraordinary happened.</p>
<p>Two of the largest hacktivist groups actively engaged on opposite sides of the war in Ukraine are the Russian-affiliated Killnet and the Ukrainian IT Army. Spokespeople for both groups <a href="https://www.bbc.com/news/technology-67029296">vowed to the BBC</a> they would uphold the rules.</p>
<h2>Digital threats during armed conflict</h2>
<p>It is not just actors in Ukraine, and not just hacktivist groups, who must comply with the laws of war in cyberspace. </p>
<p>On October 18, the International Committee of the Red Cross published the final report of its global advisory board on <a href="https://www.icrc.org/en/document/protecting-civilians-against-digital-threats-during-armed-conflict">digital threats during armed conflicts</a>.</p>
<p>The report is the culmination of two years of work. The board comprises a diverse group of experts spanning the geopolitical spectrum, including the United States, Russia, China, South Africa, Mexico, India and Australia (including me).</p>
<p>We worked on “the international consensus that the established principles and rules of [international humanitarian law] apply to all forms of warfare and to all kinds of weapons, be they new or old, digital or physical”.</p>
<p>To safeguard civilians against digital threats, the report includes 25 action-oriented recommendations for belligerents, states, tech companies and humanitarian organisations.</p>
<p>Since 2013, <a href="https://digitallibrary.un.org/record/753055?ln=en">negotiated agreements at the United Nations</a> have recognised that existing international law applies to what states do in cyberspace.</p>
<p>In 2021, Russia, China, the US, Australia and every country in the United Nations went one step further, <a href="https://digitallibrary.un.org/record/3934214?ln=en">explicitly recognising</a> the application of the laws of war to cyber operations.</p>
<p>The International Committee of the Red Cross – its mission being “to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles” – has also affirmed this many times, including via the reports above.</p>
<h2>The International Criminal Court weighs in</h2>
<p>Of course, agreeing to the rules doesn’t prevent irresponsible actors from breaking them. And this is where the third significant development comes in.</p>
<p>In September 2023, Karim A.A. Khan, the prosecutor of the International Criminal Court, <a href="https://digitalfrontlines.io/2023/08/20/technology-will-not-exceed-our-humanity/">signalled</a> the court would begin “collecting and reviewing” evidence of cyber warfare. It will also examine “misuse of the internet to amplify hate speech and disinformation, which may facilitate or even directly lead to the occurrence of atrocities”.</p>
<p>This is the first time the International Criminal Court has expressly indicated cyber warfare and misuse of the internet fall within its jurisdiction. This puts governments, militaries, tech companies and hacktivists on notice that they do not act with impunity in cyberspace.</p>
<p>As the war drags on in Ukraine and conflict escalates between Israel and Hamas (including <a href="https://www.politico.eu/article/israel-hamas-war-hackers-cyberattacks/">increasing reports</a> of hacktivism), all parties would do well to reflect that the rules of cyber warfare are clear.</p>
<p>Bombs or bytes, missiles or malware, international humanitarian law applies.</p><img src="https://counter.theconversation.com/content/216202/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Johanna Weaver was a member of the ICRC Global Advisory Board on Digital Threats During Armed conflict referred to in this article. </span></em></p>Cyberspace is a battlefield in modern conflicts – and combatants must follow international humanitarian law to protect civilians.Johanna Weaver, Director, ANU Tech Policy Design Centre, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2159482023-10-20T20:13:13Z2023-10-20T20:13:13ZDelivering aid during war is tricky − here’s what to know about what Gaza relief operations may face<figure><img src="https://images.theconversation.com/files/555019/original/file-20231020-15-c3rj3t.jpg?ixlib=rb-1.1.0&rect=120%2C613%2C6589%2C3852&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palestinians on the outskirts of Gaza City walk by buildings destroyed by Israeli bombardment on Oct. 20, 2023. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIX%20Palestinians%20Israel/33e1c2cf97f4452e9e17e88c2bec58a4?Query=gaza&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=now-14d&totalCount=2526&currentItemNo=1">AP Photo/Ali Mahmoud</a></span></figcaption></figure><p>The 2.2 million people who live in Gaza are facing <a href="https://theconversation.com/gaza-depends-on-un-and-other-global-aid-groups-for-food-medicine-and-basic-services-israel-hamas-war-means-nothing-is-getting-in-215514">economic isolation</a> and <a href="https://www.cnn.com/2023/10/09/middleeast/israel-gaza-hamas-fighting-monday-intl-hnk/index.html">experiencing incessant bombardment</a>. Their <a href="https://www.nytimes.com/live/2023/10/18/world/israel-hamas-war-biden-gaza">supplies of essential resources</a>, including food and water, are quickly dwindling.</p>
<p>In response, U.S. President Joe Biden has pledged <a href="https://www.cnbc.com/2023/10/18/biden-will-seek-unprecedented-israel-aid-package-.html">US$100 million in humanitarian assistance</a> for the citizens of Gaza.</p>
<p>As a <a href="https://scholar.google.com/citations?user=kXfdkJwAAAAJ&hl=en">scholar of peace and conflict economics</a> who served as a World Bank consultant during the <a href="https://www.unrwa.org/2014-gaza-conflict">2014 war between Hamas and Israel</a>, I believe that Biden’s promise raises fundamental questions regarding the <a href="https://apnews.com/article/israel-palestinians-gaza-hamas-war-b084e9c453cc99f7bec6f66d7b5913d9">delivery of humanitarian aid in a war zone</a>. Political constraints, ethical quandaries and the need to protect the security of aid workers and local communities always make it a logistical nightmare.</p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/delivering-aid-during-war-is-tricky-heres-what-to-know-about-what-gaza-relief-operations-may-face-215948&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation <a href="https://theconversation.com/us/topics/audio-narrated-99682">narrated by Noa</a>.</em></p>
<hr>
<p>In this specific predicament, U.S. officials have to choose a strategy to deliver the aid without the perception of benefiting Hamas, a group the U.S. and Israel both classify as a <a href="https://www.state.gov/foreign-terrorist-organizations/">terrorist organization</a>.</p>
<h2>Logistics</h2>
<p>When aiding people in war zones, you can’t just send money, a development strategy called “<a href="https://www.worldbank.org/en/programs/sief-trust-fund/brief/evaluations-conditional-cash-transfers">cash transfers</a>” that has become increasingly popular due to its efficiency. Sending money can boost the supply of locally produced goods and services and help people on the ground pay for what they need most. But injecting cash into an economy so completely cut off from the world would <a href="https://www.stlouisfed.org/education/feducation-video-series/episode-1-money-and-inflation">only stoke inflation</a>.</p>
<p>So the aid must consist of goods that have to be brought into Gaza, and services provided by people working as part of an aid mission. <a href="https://spherestandards.org/handbook-2018/">Humanitarian aid can include</a> food and water; health, sanitation and hygiene supplies and services; and tents and other materials for shelter and settlement. </p>
<p>Due to the closure of the border with Israel, aid can arrive in Gaza only via the <a href="https://theconversation.com/egypts-rafah-crossing-is-a-lifeline-to-palestinians-living-in-gaza-but-opening-it-is-still-unresolved-215718">Rafah crossing</a> on the Egyptian border.</p>
<p>The U.S. Agency for International Development, or USAID, will likely turn to its longtime partner on the ground, the United Nations Relief and Works Agency, or UNRWA, to serve as supply depots and distribute goods. That agency, originally founded in 1949 as a temporary measure until a two-state solution could be found, serves in effect as a parallel yet unelected <a href="https://theconversation.com/gaza-depends-on-un-and-other-global-aid-groups-for-food-medicine-and-basic-services-israel-hamas-war-means-nothing-is-getting-in-215514">government for Palestinian refugees</a>. </p>
<p>USAID will likely want to tap into UNRWA’s network of <a href="https://www.unrwa.org/what-we-do/education">284 schools</a> – many of which are now <a href="https://www.youtube.com/watch?v=rb2JBK91dWI">transformed</a> into humanitarian shelters housing <a href="https://reliefweb.int/report/occupied-palestinian-territory/hostilities-gaza-strip-and-israel-flash-update-5">two-thirds</a> of the <a href="https://www.bbc.com/news/world-middle-east-20415675">estimated 1 million</a> people displaced by Israeli airstrikes – and 22 hospitals to expedite distribution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Map of Gaza and its neighbors" src="https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=521&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=521&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=521&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=655&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=655&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555054/original/file-20231020-27-3z9fjw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=655&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gaza is a self-governing Palestinian territory. The narrow piece of land is located on the coast of the Mediterranean Sea, bordered by Israel and Egypt.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/the-gaza-strip-and-surroundings-a-royalty-free-illustration/1737027311?phrase=gaza+map&adppopup=true">PeterHermesFurian/iStock via Getty Images Plus</a></span>
</figcaption>
</figure>
<h2>Politics</h2>
<p>Prior to the Trump administration, the U.S. was typically the <a href="https://stats.oecd.org/qwids/#?x=2&y=6&f=3:51,4:1,1:24,5:3,7:1&q=3:51+4:1+1:6,9,10,13,14,23,24+5:3+7:1+2:134+6:2017,2018,2019,2020,2021,2022">largest single provider</a> of aid to <a href="https://theconversation.com/israels-west-bank-settlements-4-questions-answered-127560">the West Bank</a> and Gaza. USAID administers <a href="https://www.foreignassistance.gov/">the lion’s share</a> of it.</p>
<p>Since Biden took office, total yearly U.S. assistance for the Palestinian territories has totaled around <a href="https://www.foreignassistance.gov/">$150 million</a>, <a href="https://www.theguardian.com/us-news/2021/apr/08/joe-biden-restores-us-aid-palestinians-donald-trump">restored</a> from <a href="https://www.foreignassistance.gov/">just $8 million in 2020</a> under the Trump administration. During the Obama administration, however, the U.S. was providing more aid to the territories than it is now, with <a href="https://www.foreignassistance.gov/">$1 billion</a> disbursed in the 2013 fiscal year.</p>
<p>But the White House needs Congress to approve this assistance – a process that requires the <a href="https://www.nbcnews.com/politics/congress/patrick-mchenry-house-speaker-pro-tempore-threaten-quit-rcna121314">House of Representatives to elect a new speaker</a> and then for lawmakers to approve aid to Gaza once that happens.</p>
<h2>Ethics</h2>
<p>The United Nations Relief and Works Agency is a U.N. organization. It’s not run by Hamas, unlike, for instance, the <a href="https://apnews.com/article/israel-palestinians-gaza-hamas-war-biden-rafah-e062825a375d9eb62e95509cab95b80c">Gaza Ministry of Health</a>. However, Hamas has frequently undermined UNRWA’s efforts and diverted international aid for military purposes.</p>
<p>Hamas has repeatedly used UNRWA schools as <a href="https://www.timesofisrael.com/rockets-found-in-unrwa-school-for-third-time/">rocket depots</a>. They have repeatedly <a href="https://www.i24news.tv/en/news/israel/158903-171029-tunnel-found-under-un-school-in-gaza-for-second-time-in-months">tunneled beneath</a> UNRWA schools. They have dismantled <a href="https://www.youtube.com/watch?v=MvvqBcA-9yA">European Union-funded water pipes</a> to use as rocket fuselages. And even since the most recent violence broke out, the UNRWA has accused Hamas of <a href="https://www.timesofisrael.com/liveblog_entry/un-agency-accuses-hamas-of-stealing-fuel-medications-from-its-gaza-premises/">stealing fuel and food</a> from its Gaza premises.</p>
<p>Humanitarian aid professionals regularly have to contend with these trade-offs when deciding to what extent they can work with governments and local authorities that commit violent acts. They need to do so in exchange for the access required to help civilians under their control.</p>
<p>Similarly, Biden has had to make concessions to Israel while brokering for the freedom to send humanitarian aid to Gaza. For example, he has assured Israel that if any of the aid is diverted by Hamas, the <a href="https://thehill.com/policy/international/4266108-biden-warns-hamas-against-blocking-aid-deliveries-to-palestinian-civilians/">operation will cease</a>. </p>
<p>This promise may have been politically necessary. But if Biden already believes Hamas to be uncaring about civilian welfare, he may not expect the group to refrain from taking what they can.</p>
<h2>Security best practices</h2>
<p>What can be done to protect the security of humanitarian aid operations that take place in the midst of dangerous conflicts?</p>
<p>Under <a href="https://theconversation.com/how-the-laws-of-war-apply-to-the-conflict-between-israel-and-hamas-215493">International Humanitarian Law</a>, local authorities have the primary responsibility for ensuring the delivery of aid – even when they aren’t carrying out that task. To increase the chances that the local authorities will not attack them, aid groups can give “<a href="https://guide-humanitarian-law.org/content/article/3/deconfliction-humanitarian-identification-and-notification/">humanitarian notification</a>” and voluntarily alert the local government as to where they will be operating.</p>
<p><a href="https://www.ajc.org/news/israel-hamas-and-international-law-what-you-need-to-know">Hamas has repeatedly flouted</a> international norms and laws. So the question of if and how the aid convoy will be protected looms large.</p>
<p>Under the current agreement between the U.S., Israel and Egypt, the convoy will <a href="https://www.nytimes.com/2023/10/19/world/middleeast/gaza-israel-aid-egypt-rafah.html">raise the U.N. flag</a>. International inspectors will make sure no weapons are on board the vehicles before crossing <a href="https://theconversation.com/egypts-rafah-crossing-is-a-lifeline-to-palestinians-living-in-gaza-but-opening-it-is-still-unresolved-215718">over from Arish, Egypt, to Rafah</a>, a city located on the Gaza Strip’s border with Egypt.</p>
<p>The aid convoy will likely cross without militarized security. This puts it at some danger of diversion once inside Gaza. But whether the aid convoy is attacked, seized or left alone, the Biden administration will have demonstrated its willingness to attempt a humanitarian relief operation. In this sense, a relatively small first convoy bearing water, medical supplies and food, among other items, serves as a test balloon for a sustained operation to follow soon after.</p>
<p>If the U.S. were to provide the humanitarian convoy a military escort, by contrast, <a href="https://thehill.com/policy/defense/4253360-us-troops-gaza-hamas-israel/">Hamas could see its presence as a provocation</a>. <a href="https://www.npr.org/2023/10/19/1207037984/josh-paul-resign-state-department-military-assistance-israel-gaza">Washington’s support for Israel is so strong</a> that the U.S. could potentially be judged as a party in the conflict between Israel and Hamas.</p>
<p>In that case, the presence of U.S. armed forces might provoke attacks on Gaza-bound aid convoys by Hamas and Islamic jihad fighters that otherwise would not have occurred. Combined with the <a href="https://www.stripes.com/branches/navy/2023-10-18/us-navy-israel-hamas-middle-east-11746432.html">mobilization of two U.S. Navy carrier groups</a> in the eastern Mediterranean Sea, I’d be concerned that such a move might also stoke regional anger. It would undermine the Biden administration’s attempts to cool the situation.</p>
<p>On U.N.-approved missions, aid delivery may be secured by <a href="https://peacekeeping.un.org/en/principles-of-peacekeeping">third-party peacekeepers</a> – meaning, in this case, personnel who are neither Israeli nor Palestinian – with the U.N. Security Council’s blessing. In this case, tragically, it’s unlikely that such a resolution could conceivably pass such a vote, much less quickly enough to make a difference.</p><img src="https://counter.theconversation.com/content/215948/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Topher L. McDougal does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The politics of delivering aid in war zones are messy, the ethics fraught and the logistics daunting. But getting everything right is essential − and in this instance could save many Gazans’ lives.Topher L. McDougal, Professor of Economic Development & Peacebuilding, University of San DiegoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2154932023-10-15T14:19:03Z2023-10-15T14:19:03ZHow the ‘laws of war’ apply to the conflict between Israel and Hamas<figure><img src="https://images.theconversation.com/files/553788/original/file-20231014-23-50yq19.jpg?ixlib=rb-1.1.0&rect=24%2C106%2C5439%2C3530&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Warring parties are duty-bound to minimize civilian casualties.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinian-citizens-inspect-damage-to-their-homes-caused-news-photo/1735465776?adppopup=true">Ahmad Hasaballah/Getty Images</a></span></figcaption></figure><p><em>The killing of Israeli civilians by Hamas and retaliatory airstrikes on the densely populated Gaza Strip by Israel raises <a href="https://www.theguardian.com/law/2023/oct/12/what-are-the-rules-of-war-and-how-do-they-apply-to-the-israel-gaza-conflict">numerous issues under international law</a>.</em></p>
<p><em>Indeed, President Joe Biden <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/10/10/remarks-by-president-biden-on-the-terrorist-attacks-in-israel-2/">made express reference to the “laws of war</a>” in comments he made at the White house on Oct. 10, 2023, noting that while democracies like the U.S. and Israel uphold such standards, “terrorists” such as Hamas “purposefully target civilians.” Speaking the same day, the European Union’s top diplomat Josep Borrell condemned Hamas’ attack but also suggested that Israel was <a href="https://www.euractiv.com/section/global-europe/news/eus-borrell-israel-has-right-to-self-defence-but-some-actions-counter-international-law/">not acting in accordance with international law</a> by cutting water, electricity and food to civilians in Gaza.</em></p>
<p><em>But international law and the very nature of the conflict itself – along with the status of the two sides involved – is a complex area. The Conversation turned to <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">Robert Goldman</a>, an expert on the laws of war at American University Washington College of Law, for guidance on some of the issues.</em></p>
<h2>What are the ‘laws of war’?</h2>
<p>The laws of war, also known as International Humanitarian Law (IHL), consist of the <a href="https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm">four 1949 Geneva Conventions</a>, their two Additional Protocols of 1977, the <a href="https://casebook.icrc.org/a_to_z/glossary/hague-conventions">Hague Conventions of 1899 and 1907</a>, as well as certain weapons conventions.</p>
<p>Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.</p>
<p>It is important to understand that modern IHL is not concerned with the reasons for, or the legality of, going to war. Rather, that is governed by the <a href="https://www.un.org/en/about-us/un-charter/full-text">United Nations Charter</a> and a member state’s own practice.</p>
<p>It is also important to note that violations of the laws of war are <a href="https://www.axios.com/2022/03/22/russia-putin-war-crimes-icc-ukraine">notoriously hard to prosecute</a> and can be frustrated by lack of cooperation by the parties involved. </p>
<h2>What is the nature of the conflict between Israel and Hamas?</h2>
<p>The answer to this question is by no means clear.</p>
<p>Many humanitarian law experts would argue that Hamas and Israel are engaged in what is known as a “<a href="https://www.undrr.org/understanding-disaster-risk/terminology/hips/so0002">non-international armed conflict</a>.” In other words, it would be classified the same way as a civil war that pits the armed forces of a state against an armed non-state actor, rather than an international conflict between two or more sovereign states.</p>
<p>If that were the case, the conflict would not be governed by the entirety of the laws of war, but instead by the more limited <a href="https://archive.nytimes.com/www.nytimes.com/ref/us/AP-Guantanamo-Geneva-Conventions.html?scp=5&sq=torture&st=cse">Common Article 3</a> of the Geneva Conventions along with numerous <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law">customary law rules</a>, which derive from general practices accepted as law. Common Article 3, which applies to civilians and those no longer fighting, prohibits practices such as torture, summary execution and denial of a fair trial. But Prisoner of War status only applies to conflicts between states so would not apply.</p>
<p>But some international observers, including the United Nations, view Israel as, <a href="https://www.ochaopt.org/">in effect, occupying Gaza</a> – a view predicated on the fact that Israel <a href="https://www.nbcnews.com/news/gaza-strip-controls-s-know-rcna119405">controls Gaza’s borders</a> and airspace and it <a href="https://www.aljazeera.com/news/2023/10/11/why-is-gaza-out-of-fuel-and-what">supplies most of its electricity</a>.</p>
<p>If that is the case, then the recent outbreak of hostilities between Hamas and Israel would trigger the entirety of laws of war.</p>
<p>That said, I do not believe that Israel is an occupying power
in Gaza under a strict reading of the law. This is because Israel ceased governing and <a href="https://www.reuters.com/article/us-israel-gaza-disengagement-insight/shadow-of-israels-pullout-from-gaza-hangs-heavy-10-years-on-idUSKCN0QF1QQ20150810">pulled its forces out of Gaza in 2005</a>. Since 2007, Hamas, after <a href="https://www.theguardian.com/world/2007/jun/15/israel4">expelling the Palestinian Authority</a>, has in effect governed Gaza.</p>
<h2>Is the bombing of Gaza illegal under international law?</h2>
<p>Today the rules governing the conduct of hostilities in both international and non-international armed conflicts are essentially the same.</p>
<p>The foremost requirement in all conflicts is that combatants must always distinguish between civilians and combatants, and that attacks can only be directed at combatants and other military targets.</p>
<p>Protecting civilian populations caught in warfare essentially depends upon three factors: </p>
<ol>
<li>Civilians must abstain from fighting;</li>
<li>The party in control of the civilian population must not place them at heightened risk of harm by using them as human shields; and</li>
<li>The attacking force must take precautions to avoid or minimize excessive civilian casualties when attacking lawful targets.</li>
</ol>
<p>Not only are civilians in Gaza not lawful targets, they are also protected under IHL by the <a href="https://lieber.westpoint.edu/proportionality-international-humanitarian-law-principle-rule/">rule of proportionality</a>. This rule prohibits an attack against a military target which foreseeably could cause civilian casualties that are excessive, or disproportionate in relation to the advantage anticipated from the target’s destruction.</p>
<p>In the case of Gaza, this rule requires that before launching an attack, the Israeli military analyze and determine the likely effect on civilians. If it appears that such an attack will cause disproportionate civilian casualties, then it must be suspended or canceled.</p>
<p>Given Gaza’s urban density, it will be extremely difficult for the Israelis to avoid substantial civilian casualties even when using precision weapons. </p>
<p>And this task will be nearly impossible if Hamas, as it has <a href="https://stratcomcoe.org/cuploads/pfiles/hamas_human_shields.pdf">consistently done in the past</a>, uses civilians and now hostages to shield military targets.</p>
<p>While Israel bears primary responsibility to avoid excessive civilian deaths in its bombardment of Gaza, Hamas’ ability to claim the bombardment constitutes a war crime would be weakened if it deliberately places its own people in harm’s way. </p>
<p>And while Israel is <a href="https://apnews.com/article/israel-palestinians-gaza-hamas-war-c8b4fc20e4fd2ef381d5edb7e9e8308c">complying with its duty to give an advanced warning</a> of an attack in north Gaza, the problem remains: Where do 1 million people go to seek safety when borders are closed and military targets are being hit throughout Gaza?</p>
<h2>Is Israel’s siege of Gaza illegal?</h2>
<p>Unlike <a href="https://www.chathamhouse.org/2019/06/sieges-law-and-protecting-civilians-0/i-introduction">in the past</a>, total siege warfare now is unlawful regardless of whether the warring parties are involved in international or non-international hostilities.</p>
<p>Blocking the entry of all food, water, medicines and <a href="https://www.theguardian.com/world/2023/oct/12/no-power-water-or-fuel-to-gaza-until-hostages-freed-says-israeli-minister">cutting off electricity</a> – as appears to be happening in Gaza – will disproportionately affect civilians, foreseeably leading to their starvation. This is a banned method of warfare under customary and conventional IHL.</p>
<p>No matter how horrific the actions of Hamas, IHL does not permit an aggrieved party to respond in kind. Violation of the law by one party cannot, in principle, justify or sanction actions by the other that violate established prohibitions in international humanitarian law.</p>
<h2>What are the status and obligations of Hamas under IHL?</h2>
<p>IHL rules apply equally to all the warring parties irrespective of the nature of the conflict. This means that Israeli and Hamas combatants have the same rights and duties.</p>
<p>If, however, the conflict is non-international, then Hamas will be regarded as an armed non-state actor and its combatants ineligible for Prisoner of War status upon capture. Accordingly, Israel can try them for all their hostile acts whether or not Hamas complies with the laws of war.</p>
<figure class="align-center ">
<img alt="Masked men in black hold aloft rifles." src="https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/553789/original/file-20231014-29-84rl03.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Masked militants from the Izzedine al-Qassam Brigades, a military wing of Hamas.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PalestiniansHamasanniversary/919f51e5b9314839a8fbe54bc4e75fcd/photo?Query=hamas%20fighters&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=4&currentItemNo=3&vs=true">AP Photo/Adel Hana</a></span>
</figcaption>
</figure>
<p>But even if the conflict is an international one, then Hamas’s fighters would still be debarred from Prisoner of War status. They are not the armed forces of Palestine – which is <a href="https://worldpopulationreview.com/country-rankings/countries-that-recognize-palestine">recognized as a state by 138 nations</a> and has the Palestine Authority as its government.</p>
<p>Rather, Hamas combatants are an irregular armed group. To be eligible for Prisoner of War status under <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/article-4">Article 4A(2) of the Third Geneva Convention</a>, members of an irregular armed group must adhere to very strict standards, both collectively and individually. These includes distinguishing themselves from civilians and complying with the laws of war. Manifestly Hamas has not and does not meet these standards. As such, Israel could lawfully deny them Prisoner of War status upon capture.</p>
<p>Israel, the U.S. and others label <a href="https://www.dni.gov/nctc/groups/hamas.html">Hamas fighters as terrorists</a>. Hamas’ recent acts – indiscriminately firing thousands of rockets into Israel, targeting, killing and taking civilians as hostages – are acts of terrorism in warfare and qualify as war crimes.</p><img src="https://counter.theconversation.com/content/215493/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of the laws of war explores the complex issues raised by Israeli bombing of Gaza in retaliation for the slaughter of its citizens.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2156372023-10-13T23:27:04Z2023-10-13T23:27:04ZWhere does international law fit into the Israeli-Palestinian conflict?<p>Thinking about the Israeli-Palestinian conflict is never easy. Yet the growing number of declarations being made highlights how important it is to consider the factors involved in making an assessment of the situation under the applicable law.</p>
<p>While the solution to any conflict is political, the fact remains that any armed conflict is covered by a specific branch of international law, the law of armed conflict, also known as international humanitarian law. </p>
<p>Although international humanitarian law is sometimes thought to lack effectiveness, we must not lose sight of the fact <a href="https://aoc.media/analyse/2022/03/10/les-conflits-armes-une-zone-de-non-droit/">that its application, however minimal</a>, ensures that civilian lives are spared.</p>
<p>As a professor at Laval University’s Faculty of Law and Scientific Director of the <a href="https://www.irsem.fr/en/index.html">Institut de recherche stratégique de l'École militaire</a> (an interdisciplinary research centre for conflict and peace studies based in Paris), I specialize in international humanitarian law and am a member of the <a href="https://www.crdh.fr/en/">Paris Human Rights Centre</a> (Research Centre for Human Rights and Humanitarian Law).</p>
<h2>Classifying the conflict</h2>
<p>The first step to be taken before making any legal analysis in international humanitarian law is to classify the situation. In the present case, this qualification is open to <a href="https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/">debate</a>. </p>
<p>There are two possible ways to characterize it. It is either a non-international armed conflict between an armed group, Hamas, and a State, Israel, or it is an international armed conflict, owing to the situation of occupation that has prevailed in the Palestinian territories since the Six-Day War of 1967. </p>
<p>In 2012, <a href="https://access.archive-ouverte.unige.ch/access/metadata/3819f7ae-9778-49d4-8415-0563efb64f10/download">I argued that despite the unilateral withdrawal of Israeli troops, the territory of the Gaza Strip remained under Israeli occupation</a>. Indeed, when in 2004 the <a href="https://www.icj-cij.org/sites/default/files/case-related/131/131-20040709-ADV-01-00-FR.pdf">International Court of Justice</a> stated that Israel was obliged to apply international humanitarian law and international human rights law by virtue of its status as occupying power in this territory, Israel unilaterally withdrew its troops from Gaza in 2005, claiming to be free of its obligations. </p>
<p>I believe that for a situation in a territory to be characterized as an occupation, and, therefore, for a power to establish its authority over it, that power needs to deploy its armed forces in the territory. However, the withdrawal of these forces does not ipso facto mean there is no more occupation, as long as the State continues to control the land, sea and air borders, to issue passports to its population and to have its currency in circulation. The fact that Israel can decide to <a href="https://www.timesofisrael.com/liveblog_entry/israel-cuts-electricity-supply-to-gaza/">completely cut off the electrical power supply</a> in Gaza only confirms this. </p>
<p>Since 2005, clashes and confrontations between Hamas and Israel have taken place on a regular basis. The fact that they have reached the scale demonstrated by the events of Oct. 7 is not likely to change this assessment. </p>
<h2>So, what difference does this make?</h2>
<p>None at all.</p>
<p>Whichever way one characterizes the conflict, it goes without saying that the acts of <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1">deliberately targeting civilians</a> and taking <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule96">hostages</a> are strictly forbidden. This is even more the case when these acts are part of a pattern of violence whose principle aim is to <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule2">spread terror among the civilian population</a>.</p>
<p>In the same vein, no matter how the conflict is qualified, it is difficult to see how <a href="https://www.barrons.com/news/total-siege-of-gaza-prohibited-under-international-law-un-1abc1549">declaring a “total siege” of the Gaza Strip</a> could be consistent with international humanitarian law. The “siege” is not a notion that is expressed, in extenso, in international humanitarian law. The term siege refers to restricting the movement of people and goods in a specific area with the aim of forcing enemy forces to stop fighting. </p>
<p>While a siege, as such, is not prohibited, its effects inevitably lead to violations of international humanitarian law. For example, preventing the delivery of food or the supply of water can lead to the starvation of the population living in the territory. Using famine as a method of warfare is <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule53">prohibited</a>. Similarly, restricting or preventing the movement of people means that humanitarian personnel cannot carry out their relief work in the besieged zone. But humanitarian organizations must be allowed to deliver aid to the civilian population and, according to international humanitarian law, the parties in the conflict must even <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule55">“facilitate their passage”</a>.</p>
<p>The unleashing of violence that we are seeing, including the initial acts and the response to them, is inevitably leading to massive violations of international humanitarian law and therefore to <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156">war crimes</a>. </p>
<p>The situation raises the legitimate question of how effective international humanitarian law is. However, if, as <a href="https://msf-crash.org/en/rony-brauman">Rony Brauman</a> of Médecins sans frontières once said, “to promote international humanitarian law is to promote war” (the comment, in itself, merits conversation), promoting respect for this law in a situation such as the one in Israel and Gaza — which, whatever its nature, is undoubtedly an armed conflict — can do no harm. On the contrary, abandoning the pursuit of respect for international humanitarian law, even when it is being abused, will only lead to more chaos.</p>
<p>In this respect, it is worth remembering that third States, i.e. States which are not parties to this armed conflict, have an obligation to <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-1?activeTab=1949GCs-APs-and-commentaries">“ensure respect for international humanitarian law.”</a> This means that in all its interactions with the parties to the conflict, Canada, like every other state in the world, has a duty to remind them of their obligations under international humanitarian law.</p><img src="https://counter.theconversation.com/content/215637/count.gif" alt="La Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julia Grignon is a member of the Commission Nationale Consultative des Droits de l'Homme (France), President of the Sous-commission droit international humanitaire et action humanitaire. She is also Development Director of the Osons le DIH! partnership for the promotion and development of international humanitarian law, funded by the Social Sciences and Humanities Research Council of Canada.</span></em></p>This unleashing of violence, including the initial acts and the response to them, inevitably leads to war crimes.Julia Grignon, Professeure en droit international humanitaire, Université LavalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2076382023-06-15T09:56:31Z2023-06-15T09:56:31ZUkraine war: what international law says about the Russians fighting against their own country<p>In the weeks before Ukraine’s counteroffensive – and as Ukraine’s military activity in Russian-occupied areas of its country increased in intensity – there have been <a href="https://www.newsweek.com/russian-soldiers-belgorod-freedom-russia-legion-volunteer-corps-ukraine-war-1805354">reports of attacks</a> on the other side of the border directed against Russian targets.</p>
<p>Ground raids in the <a href="https://theconversation.com/ukraine-war-what-we-know-so-far-about-reports-of-battles-being-fought-across-the-border-in-russia-206228">Belgorod region of Russia</a>, adjacent to the north-eastern frontier of Ukraine, appear to have upped the ante. Until relatively recently, virtually all Russian combat operations had been conducted on Ukrainian territory. Now Russian units must also be diverted to face their enemies on their own soil.</p>
<p>These operations have not been conducted by the regular armed forces of Ukraine, but by <a href="https://www.bbc.co.uk/news/world-europe-65681806">various non-state armed groups</a>, for whom Kyiv has denied all responsibility. </p>
<p>This combination of factors is unusual in situations of international armed conflict between sovereign states. It creates legal complications in <a href="https://guide-humanitarian-law.org/content/article/3/prisoners-of-war/">international humanitarian law (IHL)</a> that will be difficult to untangle unless responsibility for the operations can be definitively attributed.</p>
<h2>Who is involved</h2>
<p>The incursions have been carried out, according to Ukrainian officials, by two separate groups of Russian citizens. These are the <a href="https://en.wikipedia.org/wiki/Freedom_of_Russia_Legion">Freedom of Russia Legion (FRL)</a> and the <a href="https://en.wikipedia.org/wiki/Russian_Volunteer_Corps">Russian Volunteer Corps (RVC)</a>.</p>
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Read more:
<a href="https://theconversation.com/ukraine-war-what-we-know-so-far-about-reports-of-battles-being-fought-across-the-border-in-russia-206228">Ukraine war: what we know so far about reports of battles being fought across the border in Russia</a>
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<p>The FRL <a href="https://www.france24.com/en/europe/20230524-what-is-the-free-russian-legion-the-pro-ukrainian-group-that-attacked-russia-s-belgorod">fights alongside the Ukrainian Armed Forces</a> and claims to be under the latter’s command. This would make it part of the <a href="https://visitukraine.today/blog/1797/how-to-join-the-international-legion-of-defense-of-ukraine-detailed-instructions-for-foreigners">International Legion of Territorial Defence of Ukraine</a>, a volunteer force made up of fighters from as many as 50 countries who answered Ukraine’s appeal for assistance. </p>
<p>The Ukrainian government’s recruitment website says that: “A foreigner between the ages of 18 and 60 who has combat experience and no criminal record can join the ranks of the defenders of Ukraine.” It is, therefore, a regularly constituted formation of the Ukrainian Armed Forces (UAF). </p>
<p>The RVC, on the other hand, is a <a href="https://unherd.com/thepost/russian-volunteer-corps-the-far-right-militia-fighting-putin/">far-right Russian ethno-nationalist group</a>. Its status is unclear when it comes to the group’s relationship with Ukraine’s military command and control. It claims to be operating completely independently of Ukrainian control. </p>
<p>Russia, predictably, <a href="https://www.reuters.com/world/europe/ukraine-says-it-advances-bakhmuts-flanks-entrap-russians-2023-05-22/">dismisses both groups</a> as “saboteurs”, “terrorists” and “militants”.</p>
<p>Involvement of non-state actors in armed conflicts is nothing new. But their activities raise two important legal questions. What is their legal status under IHL, and who is legally responsible for them? The answers to these questions determine whether captured fighters are protected under IHL, and who will be held accountable for their actions.</p>
<h2>Irregular fighters and international law</h2>
<p>The participation of irregular units in armed conflict has been a persistent feature of warfare since at least the Peninsular War (1808-1814). Spanish <em>guerrillas</em> – the origin of the use of the term in English – systematically harassed and attacked the French forces occupying most of Spain in support of the regime of King Joseph Bonaparte. Their guerrilla warfare was separate from the field battles in which the regular Spanish army confronted the French.</p>
<p>The development of international law to reflect this reality of modern warfare was further spurred by the French use of <em>francs-tireurs</em> (literally, “free-shooters”) in occupied areas of north-eastern France during the Franco-Prussian war (1870-1871). In the second Anglo-Boer war (1899-1902), meanwhile, the entire army of the Boer republics consisted of irregular farmers who were mobilised into <em>kommandos</em> to resist the British invasion.</p>
<p>The result was the provisions of The Hague Regulations for the Conduct of Warfare on Land (annexed to Convention II of 1899 and updated in Convention IV of 1907). <a href="https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-1907/regulations-art-1?activeTab=default">Article 1</a> defines lawful combatants as being the regular state armed forces plus (this was the innovative bit) members of “militia and volunteer corps” who satisfied four requirements: </p>
<blockquote>
<ol>
<li>Being under responsible command;<br></li>
<li>Having a fixed distinctive emblem recognisable at a distance;<br></li>
<li>Carrying arms openly; and</li>
<li>Conducting operations ‘in accordance with the laws and customs of war’.</li>
</ol>
</blockquote>
<p>These requirements were subsequently incorporated into <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/article-4?activeTab=undefined">Article 4 of 1949 Geneva Convention III</a>. This defines entitlement after capture to the rights and protections of prisoners of war (POWs). It was drafted as a direct result of the second world war. </p>
<p>A notable feature of that conflict had been the activities of armed resistance movements in occupied territory. These groups – such as the <em>Maquis</em>, or French resistance – were invariably condemned by the Germans as saboteurs (which usually led to their torture and execution). But they were regarded by Britain and her allies as legitimate representatives of their respective governments-in-exile. This made them lawful combatants entitled to POW status.</p>
<p>Sabotage is <a href="https://casebook.icrc.org/a_to_z/glossary/saboteur">permitted under IHL</a> “provided the legal rules for the choice of targets and the methods and means employed are respected”. It must be carried out by “<a href="https://casebook.icrc.org/a_to_z/glossary/combatants">combatants</a>” – that is, members of armed forces or recognised resistance groups, or citizens considered to be legitimately taking up arms to defend themselves against an invasion.</p>
<p>Kyiv’s denials of responsibility for the FRL are undermined by the fact that <a href="https://www.bbc.co.uk/news/world-europe-65804249?xtor=AL-72-%5Bpartner%5D-%5Bjb.press%5D-%5Blink%5D-%5Bjapanese%5D-%5Bbizdev%5D-%5Bisapi%5D">the group took Russian soldiers as POWs</a>, then handed them over to the Ukrainian authorities. And if the FRL has been incorporated into the Ukrainian Foreign Legion, <a href="https://www.bbc.co.uk/news/world-europe-65681806">as has been reported</a>, its fighters should be considered part of the Ukrainian armed forces. Because they come under the IHL definition of combatants, they should be protected from being treated as saboteurs after capture, which carries a <a href="https://www.kyivpost.com/post/6013">heavy penalty under Russian law</a>.</p>
<p>In contrast, if the RVC is not operating under the overall command and control of the Ukrainian military, its members run a greater risk of being punished after capture under Russian domestic law, either as saboteurs or as <a href="https://ihl-databases.icrc.org/en/customary-ihl/v1/rule6">civilians directly participating in hostilities</a>.</p>
<p>Quite apart from the contributions of these units to an appearance of escalation in the conflict, it is possible that their true significance lies in their ability to distract the Russian military. Staging combat operations on Russian territory inevitably affects Russian morale, and could encourage the Russian military to divert much-needed troops away from the frontlines of the Ukrainian counteroffensive.</p><img src="https://counter.theconversation.com/content/207638/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Turns does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two groups of Russian fighters have reportedly carried out recent attacks on Russian soil. What is their status under international law?David Turns, Senior Lecturer in International Law, Cranfield UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1989672023-02-01T19:43:21Z2023-02-01T19:43:21ZWhat international law says about Israel’s planned destruction of Palestinian assailants’ homes<figure><img src="https://images.theconversation.com/files/507572/original/file-20230201-12-kckx64.jpg?ixlib=rb-1.1.0&rect=35%2C44%2C5872%2C3888&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palestinians block roads to protest home demolition</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinian-man-crosses-a-blocked-street-during-a-strike-news-photo/1246688007?phrase=East%20jerusalem%20palestinian%20home&adppopup=true">Ahmad Gharabli/AFP via Getty Images)</a></span></figcaption></figure><p>After a deadly attack <a href="https://www.bbc.com/news/world-middle-east-64430491">that killed seven people</a> outside an East Jerusalem synagogue, the Israeli government responded by <a href="https://www.reuters.com/world/middle-east/israel-seals-off-home-palestinian-synagogue-shooter-2023-01-29/">sealing off the home</a> of the Palestinian suspect in <a href="https://www.aljazeera.com/news/2023/1/29/israel-prepares-to-demolish-family-home-of-palestinian-gunman">preparation for its destruction</a>. The family home of a 13-year-old accused in a separate East Jerusalem shooting has <a href="https://www.pbs.org/newshour/world/israel-prepares-to-demolish-home-of-palestinian-gunman-who-killed-7-in-east-jerusalem">likewise been earmarked for destruction</a>.</p>
<p>This is not unusual. Israel has <a href="https://statistics.btselem.org/ar/demolitions/demolition-as-punishment?tab=overview&demoScopeSensor=%22false%22">demolished the homes of thousands of Palestinians</a> in recent years. <a href="https://www.timesofisrael.com/in-apparent-shift-us-pushing-israel-to-stop-demolishing-terrorists-homes/">Bulldozing properties of those deemed responsible</a> for violent acts against Israeli citizens <a href="https://abcnews.go.com/International/story?id=79877&page=1">or to deter such acts</a> has long been government policy.</p>
<p>But <a href="https://news.un.org/en/story/2015/11/515632">it is also illegal</a> under international law. As an <a href="https://www.wcl.american.edu/community/faculty/profile/goldman/bio">expert on international humanitarian law</a>, I know that holding the family of assailants responsible for their acts – no matter how heinous the crime – falls under what is know as <a href="https://casebook.icrc.org/glossary/collective-punishments">collective punishment</a>. And for the past 70-plus years, international law has been unequivocal: Collective punishment is strictly prohibited in nearly all circumstances. Yet, when it comes to the demolition of Palestinian homes, international bodies have been unable to enforce the ban.</p>
<h2>Not necessary, not legal</h2>
<p>Rules governing how occupying powers can treat civilians are covered by the Fourth Geneva Convention – one of four treaties adopted after the end of World War II, largely as a response to the horrific excesses of Japanese and German occupying armies. </p>
<p><a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-33#:%7E:text=No%20protected%20person%20may%20be,and%20their%20property%20are%20prohibited.">Article 33</a> of the 1949 convention states: “No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” It adds: “Reprisals against protected persons and their property are prohibited.”</p>
<p>Since Israel is an occupying power in the eyes of the <a href="https://news.un.org/en/tags/occupied-palestinian-territories">the United Nations</a>, as well as under the terms of both the Fourth Geneva Convention and the earlier 1907 Hague Convention, then Palestinian civilians under Israeli occupation would fall under the “protected persons” designation of the Geneva Conventions.</p>
<p>The Geneva Conventions reiterate their position on protected persons further in <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-53">Article 53</a>: “Any destruction by the occupying power of real or personal property belonging individually or collectively to private persons […] is prohibited, except where such destruction is rendered absolutely necessary by military operations.”</p>
<p>That slight caveat would apply to instances in which, for example, an armed resistance group used a home belonging to a protected person to fire at an occupying power’s army. But clearly that is not the case in the deliberate destruction of a home belonging to an assailant who launched an attack elsewhere.</p>
<p>Collective punishment is banned not only by the instruments of international humanitarian law, but also by human rights conventions that apply during peacetime and armed conflicts, including occupation. </p>
<p>And such prohibitions are not a quirk of international law – they are common to <a href="https://www.taylorfrancis.com/books/mono/10.4324/9780429318986/collective-punishment-human-rights-law-cornelia-klocker">almost all major legal systems</a> in the world.</p>
<h2>A narrow reading</h2>
<p>Given how clear the international laws are, the question arises: How does Israel square the practice of punitive home destruction with international law?</p>
<p>The answer is not very well, in the opinion of most <a href="https://www.ohchr.org/en/press-releases/2022/10/commission-inquiry-finds-israeli-occupation-unlawful-under-international-law">international humanitarian law experts</a> and <a href="https://www.hrw.org/news/2014/11/21/israel-stop-punitive-home-demolitions">human rights observers</a>. </p>
<p>Israel <a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/state-parties/IL">ratified the Geneva Conventions in 1951</a>. But successive Israeli governments have claimed that <a href="https://www.bbc.com/news/world-middle-east-38458884">its protections do not apply</a> to those living in Palestinian territories, the status of which it disputes. </p>
<p>Other <a href="https://reliefweb.int/report/israel/opt-legality-house-demolitions-under-international-humanitarian-law#:%7E:text=Houses%20can%20be%20demolished%20only,purposes%20as%20a%20military%20operation.">arguments put forward by the Israeli government in defense of the demolitions</a> include that they affect only the properties of individuals engaged in terrorism, and that the aim is deterrence, not punishment.</p>
<p>But as early as 1968, Theodor Meron, a legal adviser to the Israeli Ministry of Foreign Affairs, <a href="https://www.haaretz.com/opinion/2015-05-19/ty-article/.premium/israel-knew-all-along-that-settlements-were-illegal/0000017f-e70e-d62c-a1ff-ff7f9ff80000">warned that in his opinion</a> the destruction of homes of terror suspects in the occupied territories contravened the Geneva Conventions. In a top-secret document, Meron rejected a “narrow, literal” interpretation of international law in regards the destruction of homes.</p>
<h2>UN hamstrung by US veto power</h2>
<p>The United Nations has long condemned the destruction of Palestinian homes, with the body’s special rapporteur Michael Lynk <a href="https://www.un.org/unispal/document/israels-collective-punishment-of-palestinians-illegal-and-an-affront-to-justice-special-rapporteur-on-the-situation-of-human-rights-in-the-opt-press-release/">repeatedly pointing out</a> that collective punishment violates international law.</p>
<p>Israeli Prime Minister Benjamin Netanyahu has dismissed such condemnation by the United Nations, claiming that <a href="https://www.timesofisrael.com/netanyahu-pans-despicable-un-vote-says-jews-cannot-be-occupiers-in-their-own-land/">the body shows “anti-Israeli” bias</a>.</p>
<p>Either way, the United Nations is not in a strong position to take action. The U.N.’s Security Council is the one international body that can take effective measures to censure and take coercive action against member states. But the U.S. has <a href="https://www.aljazeera.com/news/2021/5/19/a-history-of-the-us-blocking-un-resolutions-against-israel">long vetoed resolutions</a> critical of its ally, Israel. Washington is also unlikely to assert unilateral pressure on Israel to end its practice of home demolitions under its current policy. The International Criminal Court <a href="https://www.nytimes.com/2021/02/05/world/middleeast/icc-israel-war-crimes.html">ruled in 2021</a> that it had jurisdiction over territories occupied by Israel, but any investigation would be likely hampered by the noncooperation of the Israeli government, which <a href="https://www.bbc.com/news/world-middle-east-56687437">refuses to acknowledge the court’s authority</a>.</p>
<p>As a result, despite the destruction of the homes being against the letter and spirit of the Geneva Conventions, there is little that can stop the Israeli government from doing so.</p><img src="https://counter.theconversation.com/content/198967/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Goldman is affiliated with the International Commission of Jurists</span></em></p>A decision to bulldoze the home belonging to the family of a man accused of killing seven people outside a synagogue in East Jerusalem has sparked questions over the legality of Israeli policy.Robert Goldman, Professor of Law, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1978042023-01-16T01:20:17Z2023-01-16T01:20:17ZNZ aid worker remains missing in Ukraine: the tragedy of people motivated to help in war zones becoming victims themselves<figure><img src="https://images.theconversation.com/files/504565/original/file-20230115-20-4qzcp2.jpg?ixlib=rb-1.1.0&rect=37%2C89%2C4955%2C2964&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Ximena Borrazas/SOPA Images/LightRocket via Getty Images</span></span></figcaption></figure><p>The humanitarian aid worker Andrew Bagshaw, who has dual New Zealand and British citizenship, has been missing in Ukraine for more than ten days.</p>
<p>Bagshaw and his British colleague Christopher Parry worked as part of a team of Ukrainian and international volunteers delivering aid and carrying out evacuations of civilians, often under fire from Russian forces. They have not been seen since January 6, when they left the city of Kramatorsk for Soledar, in eastern Ukraine, which has since been claimed by the Russian mercenary company Wagner.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1613644401573769216"}"></div></p>
<p>Humanitarian volunteers often represent the best of us. They are driven to put themselves at personal risk with little financial reward to reduce human suffering and the impacts of conflicts. Their ethical justifications for entering dangerous locations, despite clear warnings from the Ministry of Foreign Affairs <a href="https://www.safetravel.govt.nz/ukraine">not to travel to Ukraine</a>, are often exemplary.</p>
<p>But aid workers are at high risk. During the past two decades, <a href="https://link.springer.com/book/10.1007/978-3-030-26411-6">intentional attacks on aid or humanitarian workers</a> have become a disturbing trend, often perpetrated to drive outside influences away from war zones and fully isolate populations. </p>
<p>It is a war crime to intentionally attack aid workers. Some, such as <a href="https://www.un.org/law/cod/safety.htm">personnel working</a> for the International Committee of the Red Cross (<a href="https://www.icrc.org/en">ICRC</a>) and the United Nations, have considerably more rights than others. </p>
<p>Despite this division, all aid workers are covered by basic rules. The problem is that international humanitarian law is not based on the ethics of why someone is in a war zone. This is especially the case if they are foreigners. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-abduction-of-uk-aid-workers-raises-safety-questions-over-humanitarian-organisations-182458">Ukraine: abduction of UK aid workers raises safety questions over humanitarian organisations</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center ">
<img alt="A resident who has remained in the city of Soledar is in front of the entrance to her building with windows destroyed by the explosions." src="https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504567/original/file-20230115-26-nvziuj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">International volunteers help carry out evacuations of civilians, often in dangerous circumstances.</span>
<span class="attribution"><span class="source">Laurent Van der Stockt for Le Monde/Getty Images</span></span>
</figcaption>
</figure>
<h2>Rights of foreigners who enter war zones</h2>
<p>There are three main groups of foreigners who voluntarily go into war zones. </p>
<p>Some people volunteer to fight in foreign wars and are paid more than local fighters. If captured and deemed <a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-47">mercenaries</a>, these people have no rights. They can be executed. </p>
<p>The second group are “<a href="https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/part3-section2">aliens</a>”, inadvertently caught up in a conflict in a country that is not theirs. For these people, if captured and non-combatants, they have a prima-facie right to leave the country. However, this is not an absolute right – they can still be held if their departure is contrary to the national interests of the state that captured them. </p>
<p>Aid workers represent the third group, and they are at increasing risk. Capturing aid workers for hostage and propaganda purposes is a repugnant trend. In recent conflicts, we’ve also seen a rise in the number of victims of collateral violence – their deaths were not intended but a result of indiscriminate force now commonly used in war zones. </p>
<p>More often that not, attacks on aid workers are a combination of intentional and unintentional actions. Globally, at least <a href="https://reliefweb.int/report/world/aid-worker-security-report-figures-glance-2022">460 aid workers were victims of major attacks in 2021</a>: 140 were were killed, 203 wounded and 117 kidnapped. </p>
<p>Most of these attacks happened in countries such as South Sudan, Afghanistan, Syria and Ethiopia. But other conflict zones are also contributing to the figures, with growing numbers of <a href="https://aidworkersecurity.org/">deaths, kidnappings and wounding</a> of aid workers recorded in Ukraine in 2022.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/humanitarian-aid-workers-need-security-rights-and-better-pay-179546">Humanitarian aid workers need security, rights and better pay</a>
</strong>
</em>
</p>
<hr>
<p>International humanitarian law is clear that if a country where a war is happening consents to the presence of aid workers and they are impartial in their work, they “<a href="https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-71">shall be respected and protected</a>”. </p>
<p>Although Russia has <a href="https://www.reuters.com/article/us-russia-warcrimes-convention-idUSKBN1WW2IN">withdrawn its consent to the specific convention</a> that contains this rule, Ukraine is a signatory. The obvious problem is that Russia now considers this annexed territory to be Russian, not Ukrainian. </p>
<p>Irrespective of debates about ownership and consent, Russia is still bound by other rules. Russia, like Ukraine, is a party to the <a href="https://treaties.un.org/doc/db/terrorism/english-18-5.pdf">Hostages Convention</a>, which prohibits and criminalises the taking of hostages, for whatever justification. </p>
<p>Russia is also bound by the Security Council <a href="http://unscr.com/en/resolutions/doc/1502">resolution</a>, in which it strongly condemned all forms of violence against humanitarian workers. The council, including Russia, then urged states to ensure crimes against such personnel do not go unpunished.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ukraine-war-the-bloody-battle-for-soledar-and-what-it-tells-us-about-the-future-of-the-conflict-197625">Ukraine war: the bloody battle for Soledar and what it tells us about the future of the conflict</a>
</strong>
</em>
</p>
<hr>
<h2>Between theory and practice on the battlefield</h2>
<p>Despite all of these rules and obligations, there is a large gap between the theory of restraint and the practices developing in Ukraine.</p>
<p>It is possible that Bagshaw and other humanitarian workers have been directly caught up in the violence in Ukraine. To be operating in a war zone, which involves the indiscriminate use of force, Somme-like conditions, the possibility of <a href="https://www.bbc.com/news/world-60690688">war crimes</a> and the arrival of thousands of <a href="https://www.bbc.com/news/world-60947877">mercenaries</a> who often pay scant regard to rules, is extremely risky. </p>
<p>It is also possible they have been taken for bargaining purposes. A practice is developing in Ukraine in which <a href="https://www.aljazeera.com/news/2022/12/15/dozens-freed-in-new-ukraine-russia-prisoner-swap">combatants</a> and <a href="https://www.theguardian.com/world/2022/oct/18/prisoner-swap-with-russia-sees-108-ukrainian-women-released">non-combatants</a>, including <a href="https://edition.cnn.com/2022/09/21/politics/russia-ukraine-prisoner-swap/index.html">foreigners</a>, are taken and traded by the belligerents. These exchanges also include the <a href="https://www.cbsnews.com/news/ukraine-russia-body-swap-azovstal/">bodies of the dead</a>.</p>
<p>Whichever scenario applies, this is a tragedy. We are at a point where individuals with the highest ethical motivations to provide impartial humanitarian assistance have themselves become victims: collateral in a war being conducted without honour.</p><img src="https://counter.theconversation.com/content/197804/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It is a war crime to intentionally attack aid workers, but providing aid in a war zone where force is used indiscriminately and mercenaries operate with scant regard to rules is extremely risky.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1918802022-10-06T08:53:46Z2022-10-06T08:53:46ZUkraine war: prisoner swaps have been going on for centuries – here’s how they work<p>Russia <a href="https://www.bbc.co.uk/news/uk-62991589">recently released</a> ten foreign fighters – among them five British citizens – being held as prisoners of war (PoWs) from the fighting in Ukraine. The decision to repatriate these men provides a timely reminder of the resurgence of the international law rules surrounding PoW status and treatment.</p>
<p>Prisoner swaps have been relatively rare in recent years, partly because of the smaller number of full-scale state-on-state armed conflicts and partly because of warring states’ reluctance to mutually agree on the designation of “protecting powers”. These are neutral countries or organisations that oversee the interests of PoWs. The last armed conflict to date in which protecting powers were successfully designated was the 1982 Falklands war, when the role was taken on by Switzerland (on behalf of the UK) and Brazil (on behalf of Argentina).</p>
<p>The legal framework governing the current armed conflict between Russia and Ukraine is international humanitarian law (IHL), which regulates the conduct of belligerents on the battlefield and also the treatment of “victims of warfare” – a legal expression that includes PoWs. </p>
<p>PoWs are combatants – members of the regular armed forces of a state or of organised armed groups – who have surrendered or been captured by the adverse party in the conflict. The party that captures them – referred to as the “detaining power” – legally has various duties regarding their treatment while in custody. </p>
<p>And the PoWs have corresponding rights under IHL. These are elaborated in great detail in the <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=77CB9983BE01D004C12563CD002D6B3E&action=openDocument">third Geneva Convention of 1949</a>, supplemented by its <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument">1st Additional Protocol of 1977</a>.</p>
<p>Setting aside the fact that one of the men, Dylan Healy, is a humanitarian aid worker and therefore under <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=B67EDFC718BF74E3C12563CD0051DFC4">Article 71 of the Protocol</a> should not properly have been subject to detention as a PoW to begin with, one aspect that is of special interest in the context of this particular prisoner release is how it occurred. The foreign fighters were part of a substantial prisoner swap between the parties to the conflict. </p>
<p>In a deal brokered by Saudi Arabia, Ukraine released <a href="https://www.theguardian.com/world/2022/sep/22/ukraine-russia-prisoner-swap-azovstal-mariupol">55 Russian soldiers</a> (along with the pro-Russian, Ukrainian politician and oligarch, Viktor Medvedchuk, who was facing charges of treason) in exchange for 215 Ukrainian soldiers. Most of the Ukrainian PoWs had been taken prisoner after the <a href="https://www.reuters.com/world/europe/ukrainian-troops-evacuate-mariupol-ceding-control-russia-2022-05-17/">surrender of Mariupol</a> in May 2022.</p>
<h2>Prisoners for the duration?</h2>
<p>PoWs are typically held by the detaining power until “the cessation of active hostilities”, as the convention expresses it – the whole point of keeping prisoners taken on the battlefield being to weaken the enemy by depriving him of their use. </p>
<p>But it has long been accepted under the laws of war that parties to an armed conflict may at their discretion release PoWs while the conflict is still ongoing. This usually serves to enable one side (or both) to relieve themselves of the logistical burden – also a legal obligation under the Geneva Conventions – of caring for them. </p>
<p>Typically, such a release is put in place by one of two mechanisms. PoWs may be paroled – released on a solemn promise given on their honour not to take up arms again during that particular conflict. Alternatively, the parties to the conflict may make a special bilateral agreement to exchange prisoners, either as a one-off instance or as a general agreement intended to be of repeated application during that conflict (traditionally known as a “cartel”).</p>
<p>Somewhat ironically, the parole system, which has fallen out of general usage since the second world war, is still codified in the modern law (see <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=D92AB7AC378C4E61C12563CD0051AC29">Article 21 of the Geneva Convention</a>). On the other hand, ad hoc agreements for PoW exchanges, which have been far more typical in post-1945 conflicts, are nowhere mentioned in the IHL treaties. </p>
<p>Instead, they are <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule128_sectionc">governed by customary international law</a>, a body of unwritten rules that forms the origin of much modern international law but that developed from state practice as opposed to being codified in treaties. </p>
<p>Cartels in the traditional sense, which originated in private agreements between opposing commanders for the ransom of prominent prisoners until, in the 17th century, evolving into agreements for the mass mutual exchange of professionalised soldiers who had been taken prisoner, have not been used since the first world war.</p>
<h2>Why they were released</h2>
<p>In this instance, the Russo-Ukrainian agreement of September 2022 may indicate that the Russian side in particular lacks the serious will or capacity to conduct mass trials of PoWs on charges that would not withstand legal scrutiny. It may also want to unburden itself of the onerous requirements for the care of such prisoners.</p>
<p>The timing of the exchange is also interesting. It came at about the same time as Vladimir Putin’s declaration of partial mobilisation and threats to use nuclear weapons. So these apparently substantial escalations of the conflict were coupled with what might be seen as a conciliatory gesture. This suggests a degree of strategic uncertainty on Russia’s part that could be a pointer to possible dissent within the regime or impatience with the duration of the conflict. </p>
<p>In any event, the consistency of the PoW exchange with international law is to be welcomed amid a conflict where the Russian side, in particular, has committed repeated violations.</p><img src="https://counter.theconversation.com/content/191880/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Turns does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Five British nationals were part of a prisoner swap with Russia recently. Here’s what international law tells us about the detention and treatment of people taken in time of conflict.David Turns, Senior Lecturer in International Law, Cranfield UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1551052021-05-20T12:27:38Z2021-05-20T12:27:38ZCan the world stop Israel and Hamas from committing war crimes? 7 questions answered about international law<figure><img src="https://images.theconversation.com/files/401394/original/file-20210518-23-v4im0n.jpg?ixlib=rb-1.1.0&rect=149%2C119%2C4842%2C3203&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Palestinian boy inspects his destroyed house after it was shelled by Israeli aircraft, Gaza, May 18, 2021. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/palestinian-boy-inspects-his-destroyed-house-after-being-news-photo/1232966551?adppopup=true">Ahmed Zakot/SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p><em>The deadliest fighting in years between Israel and Hamas had by mid-May killed over <a href="https://www.nytimes.com/interactive/2021/05/17/world/middleeast/israel-palestine-gaza-conflict-death-toll.html">200 Palestinians in Gaza</a>, including dozens of children, and at least 10 in Israel. Both sides are accused of violating international law – Israel for its alleged disproportionate bombardment of residential buildings and Palestinian groups for firing rockets on Israeli cities.</em> </p>
<p><em>International law professor <a href="https://scholar.google.com/citations?user=Id5XQygAAAAJ&hl=en&oi=ao">Asaf Lubin</a> explains the rules of warfare – and whether they can be enforced.</em></p>
<h2>1. Are wars governed by law?</h2>
<p><a href="https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf">International humanitarian law</a> encompasses a set of rules which govern armed conflict. They are enshrined in treaties, some of which both Israel and Palestine ratified. The most important of these agreements are the <a href="https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols">1949 Geneva Conventions and their 1977 additional protocols</a>. </p>
<p>Central to international humanitarian law are a core set of principles. </p>
<p>First is the principle of distinction, which obligates warring parties to distinguish between civilians and military targets. Each side can attack only those objects which by their nature, location, purpose or use would offer a definite military advantage if neutralized.</p>
<p>Second is the principle of proportionality, according to which any unavoidable “collateral damage” – such as civilian deaths – cannot be excessive in relation to the direct military advantage anticipated. </p>
<p>Finally, there’s the principle of precautions in attack, which reaffirms the obligation of warring parties do everything feasible to mitigate civilian harms.</p>
<p>So when Hamas <a href="https://www.nbcnews.com/news/world/weary-israelis-endure-more-hamas-rocket-barrages-n1267371">indiscriminately fires rockets at Tel Aviv</a>, for example, it is a clear violation of international law. Similarly, Israeli attacks on residential high-rises are for many in the international community a war crime, because they are disproportionate and do not offer a definite military advantage. </p>
<p>Israel disagrees, claiming those buildings were <a href="https://nypost.com/2021/05/15/israeli-airstrike-destroys-building-with-news-outlets-in-gaza/">used by Hamas</a> to advance its military campaign. </p>
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<figcaption><span class="caption">Israel bombed a building that housed the media outlets Associated Press and Al Jazeera, as well as many Palestinian families.</span></figcaption>
</figure>
<h2>2. What happens if Israel or Hamas is alleged to have committed war crimes?</h2>
<p>That depends on the will of the international community. We may see an International Criminal Court investigation, U.N. Security Council sanctions or fact-finding missions by the U.N. Human Rights Council. </p>
<p>These kinds of investigations have happened after every previous cycle of violence between Israel and Hamas. Prior reports – like the 2009 <a href="http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf">Goldstone report</a>, issued by the U.N. Human Rights Council – identified violations of human rights and humanitarian law by both parties. It called for Israel to provide monetary reparations to Palestinian victims or their survivors. </p>
<p>Enforcement, however, has proven largely ineffective. International law simply lacks the necessary tools to hold powerful countries to account.</p>
<h2>3. Has Israel complied with the UN’s demands after such investigations?</h2>
<p>To varying degrees. Israel in many of those cases did not accept the basic premise that its military practices violated international humanitarian law and therefore did not change course.</p>
<p>But in a few rare occasions Israel did pay compensation. For example, in 2009 <a href="https://www.reuters.com/article/idUSN22174138">Israel paid</a> US$10.5 million to the U.N. for property damage and injuries suffered by the organization during Israel’s attack on Gaza. </p>
<p>When Israel makes such payments, they are done “ex gratia” – lump sum payments made to respond to international pressure without acknowledging any legal responsibility or creating legally binding norms that could be enforced in the future. </p>
<p>Israel is not alone in this practice. Other countries, <a href="https://www.lawfareblog.com/examination-us-military-payments-civilians-harmed-during-conflict-afghanistan-and-iraq">including the U.S.</a>, have made similar ex gratia payments to those harmed in war, without admitting fault or wrongdoing.</p>
<h2>4. What is the US position on Israel’s military action in Gaza?</h2>
<p>The U.S. now says it supports a cease-fire. But it has blocked U.N. Security Council statements that would have called for such a cease-fire and put blame on Israel, including strong language about Palestinian children dying in large numbers. The U.S. claimed that it blocked those statements because they did not also condemn Hamas for violating international law. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Firefighters stand around a charred car" src="https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/401397/original/file-20210518-21-1d1xyhc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Firefighters put out a fire after a rocket fired from the Gaza Strip struck on May 15, 2021 in Ramat Gan, Israel.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/firefighters-put-out-a-fire-after-a-rocket-fired-from-the-news-photo/1232903341?adppopup=true">Amir Levy/Getty Images</a></span>
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</figure>
<p>It is a common U.S. stance in Israel-Hamas conflicts to require equality in language on “both sides.” But congressional progressives in the Democratic Party now take a different view. <a href="https://www.npr.org/2021/05/18/998038591/rep-tlaib-pushes-biden-to-protect-at-risk-palestinians-in-middle-east-conflict">They insist</a> that the U.S. must recognize the power imbalance between Israel, a U.S.-funded military superpower, and Gaza, an occupied territory.</p>
<h2>5. Israel was already under International Criminal Court investigation for allegedly committing war crimes against Palestinians. Will the current conflict influence that case?</h2>
<p>In March 2021, outgoing International Criminal Court prosecutor Fatou Bensouda opened an <a href="https://www.usnews.com/news/world/articles/2021-03-03/icc-investigates-alleged-crimes-in-palestinian-territories">investigation into alleged disproportionate Israeli attacks in Gaza</a> – exactly the same kind of attacks at issue now. The investigation also covers Israel’s settlements program in the West Bank.</p>
<p>In a <a href="https://www.reuters.com/world/middle-east/icc-prosecutor-warns-against-crimes-escalating-israel-palestinian-violence-2021-05-13/">recent interview</a>, Bensouda said that the investigation remained open and that her office is monitoring the current situation very closely – essentially warning Israel to be careful, because the criminal court could hold it to account. </p>
<p>The ongoing violence shows that the threat didn’t deter either side. Israeli leaders often refer to a “<a href="https://www.israelhayom.com/2019/12/25/defense-minister-warns-icc-israel-will-provide-a-legal-iron-dome-to-its-service-members/">legal iron dome</a>” to indicate the general umbrella of protection Israel offers its military personnel from any future criminal prosecution.</p>
<h2>6. Have Israel and the US joined the international treatises that establish the rules of war?</h2>
<p>Yes, they both ratified the Geneva Conventions, but not their additional protocols. Nonetheless, the international community widely recognizes the rules set out in these agreements as customary law, and they are therefore binding on all countries regardless of whether they signed on. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Photo of the side of a glass building with the scales of justice emblazoned on its facade" src="https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384297/original/file-20210215-17-1sobco9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Headquarters of the International Criminal Court in The Hague, Netherlands.</span>
<span class="attribution"><a class="source" href="https://i.dawn.com/primary/2021/02/601e42c922738.jpg">United Nations</a></span>
</figcaption>
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<h2>7. If neither Israel nor the US complies with international humanitarian law, do these rules actually exist?</h2>
<p>International law serves an expressive function, setting a standard for how countries should behave. Over time, we’ve seen these norms play an increasing role in the way countries operate – and what actions are deemed unacceptable.</p>
<p>For example, following the 2009 Goldstone report, <a href="https://www.jpost.com/israel/idf-to-limit-white-phosphorus-use">Israel committed</a> to making several changes to minimize civilian casualties, including restricting the use of white phosphorous munitions, which cause severe chemical burns.</p>
<p>International humanitarian law is not a panacea for all of the world’s ills. But these rules are a good place to start, and certainly worth fighting for.</p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/155105/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asaf Lubin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both sides in the Israel-Hamas conflict may be violating the international laws that govern armed conflict. A legal scholar explains these rules – and whether anyone enforces them.Asaf Lubin, Associate Professor of Law, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1234382019-09-19T04:21:57Z2019-09-19T04:21:57ZOperation Burnham: inquiry underway to determine any wrongdoing by New Zealand troops in Afghanistan<figure><img src="https://images.theconversation.com/files/293087/original/file-20190918-187991-1bv5ooq.jpg?ixlib=rb-1.1.0&rect=40%2C221%2C5422%2C3415&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">More than 32,000 civilians have been killed in the Afghanistan war between 2009 and 2018 - most of them by anti-government forces.</span> <span class="attribution"><span class="source">AAP/GHULAMULLAH HABIBI</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>After nearly two decades of fighting, the death toll in the war in Afghanistan is staggering. Apart from more than <a href="https://www.bbc.com/news/world-asia-47005558">45,000 Afghani soldiers</a> killed since 2014 and 3,576 <a href="https://www.statista.com/statistics/262894/western-coalition-soldiers-killed-in-afghanistan/">western coalition soldiers</a> since the beginning of the conflict in 2001, some 32,532 <a href="https://unama.unmissions.org/sites/default/files/24_february_2019_-_civilian_deaths_from_afghan_conflict_in_2018_at_highest_recorded_level_-_un_report_english.pdf">civilians were killed in Afghanistan</a> between 2009 and 2018 – most of them by anti-government forces. </p>
<p>In a small subset in this human tragedy, New Zealand is critically examining one particular operation, during which six people were killed, including a three-year-old girl. This occurred when a Taliban group was targeted by a New Zealand lead force, allegedly in reply to an attack on a New Zealand team in early August 2010. </p>
<p>In their book, <a href="http://www.pottonandburton.co.nz/store/hit-run">Hit and Run</a>, journalists Nicky Hager and Jon Stephenson called into question the official version of events of this action, known as <a href="https://www.rnz.co.nz/news/national/398976/operation-burnham-inquiry-senior-military-official-says-he-may-have-been-purposely-misled">Operation Burnham</a>. </p>
<p>This questioning has resulted in an <a href="https://operationburnham.inquiry.govt.nz/assets/IOB-Files/Inquiry-into-Operation-Burnham-Terms-of-Reference.pdf">official inquiry</a>, to see if there was wrongdoing on the part of New Zealand Defence Force personnel or whether New Zealand troops committed war crimes. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/how-to-end-afghanistan-war-as-longest-conflict-moves-towards-fragile-peace-116587">How to end Afghanistan war as longest conflict moves towards fragile peace</a>
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<h2>International humanitarian law</h2>
<p>With such high stakes at play, it is necessary to have a basic understanding of the rules of international humanitarian law that govern such military operations. The core of this area (the <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">Geneva Conventions</a>) were concluded after the Second World War and then supplemented in 1977, with <a href="https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf">two protocols</a> to deal with both international and non-international conflicts. New Zealand is a signatory to all of these rules.</p>
<p>Humanitarian law grants civilians much greater protection in times of international conflicts (<a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=5E5142B6BA102B45C12563CD00434741">Protocol I</a>). But even with these higher standards, the rule is clear that the presence of civilians in a particular area does not render that place immune to military operations. This is especially so if the civilians are trying to shield legitimate military targets from attacks.</p>
<p>International humanitarian law grants civilians lesser protection in times of non-international (typically civil war) conflicts (<a href="https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolII.aspx">Protocol II</a>). This protocol mandates that civilians shall enjoy only a general protection against the dangers arising from military operations. While acts of violence with the primary purpose of spreading terror among the civilian population are prohibited, there is much more grey in what can be done in the war zone. </p>
<p>The law covering Afghanistan is Protocol II. New Zealand, along with our NATO allies, have been trying to help the Afghanistan government in their war against a number of insurgent groups, of which the Taliban are dominant. </p>
<h2>Legitimate military targets</h2>
<p>New Zealand military law tends to conflate the two protocols. But in terms of crimes of international significance, it is the wording of the protocols that matters at the global level, not the New Zealand practice. </p>
<p>The first thing to note is that all attacks against the opposing force must have a direct military advantage anticipated and focus on legitimate military objectives. Such objectives may be enemy combatants or places. This includes places occupied or defended by fighters of the opposing force or places they store their weapons. </p>
<p>On this point, video footage has shown some armed insurgents in close vicinity of one of the targets. In addition, two insurgent commanders hunted by the New Zealand SAS have <a href="https://www.stuff.co.nz/national/113621206/insurgent-leaders-admit-they-were-in-afghanistan-village-raided-during-nz-sass-operation-burnham?rm=m">subsequently admitted they were present</a> in a village raided during Operation Burnham. In short, this appears to show that the planned operation was a legitimate goal.</p>
<h2>Applicable restraints</h2>
<p>Even if the goal is legitimate, there are still strong restraints around the methods by which an attack can take place. It is in this area, that the real work of the inquiry will be most difficult. </p>
<p>New Zealand standards prohibit direct attacks against civilians, especially if the attack would result in collateral civilian casualties clearly disproportionate to the expected military advantage. In plain language this means that just because a military target has civilians around it, their <em>prima facie</em> immunity does not stop the attack but there are limits to the type of attack that can occur. </p>
<p>Specifically, any attacks must be discriminate in focus and proportionate in impact, striking a balance between military necessity and humanity. For example, “free fire zones” (in which any person encountered is presumed to be enemy) or indirect fire missions (fired into an area at random without regard to who may be there) and single target areas (that combine both military and civilian considerations), are all prohibited.</p>
<p>Despite the importance of trying to create a clear line of distinction between civilians who should be immune, and enemy fighters who can be targets, the key is that anyone taking a direct part in hostilities does not have civilian immunity. In an ideal world, the enemy is easy to identify, <a href="http://www.nzdf.mil.nz/downloads/pdf/public-docs/dm_69_2ed_vol_4.pdf">distinguished by factors such as</a> uniforms. </p>
<p>But war in Afghanistan is not an ideal world. As the enemy hides among civilians, the commander of conventional forces has to balance the risks of exposing their soldiers to heavy casualties to a disguised enemy, or innocent civilians paying a price, because the enemy draws fire upon them.</p>
<p>Sometimes, it is relatively easy to identify the non-uniformed enemy as a legitimate target as they are involved in actions of a fundamentally military nature intended to cause death or damage. Even if someone is not carrying a weapon, they may become a legitimate target if they have a “continuous function” that amounts to direct participation, such as membership of any enemy armed group. </p>
<p>Whether someone is taking a direct part can also depend on how they are behaving, the clothes they are wearing, their gender and age, the extent to which they are equipped for combat, and the way they react to the presence of the New Zealand force, and their history with the enemy armed group. Similarly, a civilian who acts as a voluntary human shield to block a legitimate military target, also loses their immunity.</p>
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<strong>
Read more:
<a href="https://theconversation.com/afghanistan-as-taliban-and-us-near-peace-deal-its-far-too-soon-to-commit-to-returning-refugees-121788">Afghanistan: as Taliban and US near peace deal, it's far too soon to commit to returning refugees</a>
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<h2>The principle of humanity</h2>
<p>Where there is no doubt, and people must not be attacked, is when they are only indirectly participating in the conflict. Provision of general support and comfort to opposing forces, such as food and shelter or financial resources, does not amount to direct participation. Similarly, accompaniment with an armed enemy group does not mean a continuous combat function, nor does affiliation through family or community linkages. Refusing to help conventional forces, such as failing to provide information when asked, theft or even disobedience, do not justify lethal force to be used against these civilians as they, also, are not taking a direct part in the hostilities. </p>
<p>If there are reasonable questions as to whether a person is taking a direct part in hostilities, the person is to be given the benefit of doubt. They are presumed to have civilian immunity. In such situations, all feasible alternatives to lethal force should be explored. The principle of humanity demands this.</p><img src="https://counter.theconversation.com/content/123438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie received funding from The New Zealand Law Foundation, for a study around the issue of terrorism involving New Zealand. </span></em></p>An official inquiry is underway to examine if New Zealand troops committed war crimes in Afghanistan during an event known as Operation Burnham, when six civilians were killed.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1156232019-08-28T12:57:43Z2019-08-28T12:57:43ZHumanitarian forensic scientists trace the missing, identify the dead and comfort the living<figure><img src="https://images.theconversation.com/files/288560/original/file-20190819-123741-o58bes.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Red Cross forensic specialist Stephen Fonseca, right, searches for bodies in a field of ruined maize in Magaru, Mozambique, after Cyclone Idai, April 4, 2019. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mozambique-Cyclone-Searching-for-the-Dead/df28c0f7584f4ef09f8d8a02c38975f4/4/0">AP Photo/Tsvangirayi Mukwazhi</a></span></figcaption></figure><p>The word “forensic” is typically associated with crimes and legal disputes. <a href="https://www.sciencedirect.com/topics/medicine-and-dentistry/forensic-medicine">Forensic medicine</a>, for example, applies medical knowledge to establish the causes of injury or death. </p>
<p>But forensic science can have a <a href="https://www.icrc.org/en/document/forensic-science-and-humanitarian-action#.VL_PRCinGm8">humanitarian role</a>, too. Working under international humanitarian law rather than local or federal criminal systems, these forensic experts help ensure the proper identification and respectful handling of people who die during war, natural disaster and <a href="https://migrationdataportal.org/themes/migrant-deaths-and-disappearances">migration</a>, preventing them from becoming missing persons. </p>
<p>We are forensic scientists who have <a href="https://theconversation.com/how-dental-records-will-help-identify-bodies-from-mh17-29535">studied</a> and <a href="https://forensic.meetinghand.com/en/">organized</a> international conferences about the forensic work required at conflict zones and natural disaster sites. And we’d like to introduce the world to this <a href="https://www.icrc.org/en/document/forensic-science-and-humanitarian-action#.VL_PRCinGm8">emerging profession</a>, which is expanding across the globe.</p>
<h2>Natural disasters</h2>
<p>Interpol, the international police agency, publishes global standards for <a href="https://www.interpol.int/en/How-we-work/Forensics/Disaster-Victim-Identification-DVI">appropriately identifying and handling the dead</a> after major disasters. But achieving those standards may be beyond local authorities’ abilities when the death toll is very high and simply finding and identifying casualties presents a challenge. </p>
<p>Starting in 2004, the International Committee of the Red Cross developed the concept of “<a href="https://www.icrc.org/en/document/worlds-first-international-centre-humanitarian-forensics-launched-india">humanitarian forensic action</a>” to ensure that those who die in war, disaster and other complex emergencies are <a href="https://www.who.int/hac/techguidance/management-of-dead-bodies/en/">treated respectfully and with dignity</a> and don’t become missing persons.</p>
<p>The Red Cross’ forensic humanitarians work closely with local authorities worldwide, as well as train, brief and supervise other aid workers, to ensure the proper and dignified management of the dead while the laborious process of identification is underway. </p>
<p>Its experts were on hand after Mozambique’s deadly 2019 typhoon in which over 1,000 people died. They were there after Haiti’s <a href="https://www.nytimes.com/2010/01/13/world/americas/13haiti.html">2010 earthquake</a>, which killed an estimated 230,000, and <a href="https://theconversation.com/same-problems-that-dogged-tsunami-response-bedevil-humanitarian-aid-today-35781">Super Typhoon Haiyan</a>, which devastated the Philippines in 2013. </p>
<h2>Conflict</h2>
<p>Humanitarian forensic experts also help factions in armed conflicts fulfill their international obligations towards the dead in battle. </p>
<p>The <a href="http://www.weaponslaw.org/instruments/1949-geneva-conventions">1949 Geneva Convention</a> and subsequent agreements require that the dead are searched for, collected, documented, identified and disposed of in a dignified manner, ideally by returning the remains to bereaved families. </p>
<p>Decades after Argentina and the United Kingdom went to war over the Falkland Islands, which are known as the Islas Malvinas in Argentina, the two countries <a href="https://www.icrc.org/en/document/falklandmalvinas-islands-icrc-presents-argentina-and-united-kingdom-results-humanitarian">agreed</a> in 2016 to invite the Red Cross to exhume 122 unnamed soldiers buried in the Darwin military cemetery on the islands in what became a model of humanitarian forensic action. </p>
<p>Using a variety of forensic disciplines – such as anthropology, archaeology, pathology, dental testing and DNA analysis – the humanitarian forensic experts successfully identified nearly all of the 122 unknown soldiers. </p>
<p>The exhumed Falklands War dead were later reburied in new coffins in marked graves, and the cemetery restored to its original shape. In March 2018, after 35 years of suffering and uncertainty, more than 200 family members <a href="https://www.nodal.am/2018/03/familiares-combatientes-malvinas-visitaron-tumbas-la-isla-luego-del-reconocimiento-cuerpos/">visited</a> the cemetery to pay their final respects. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288559/original/file-20190819-123741-9o5t63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The relative of an Argentine soldier killed in the Falklands War with Britain grieves at the Darwin Military Cemetery on Falkland Islands (Islas Malvinas), March 26, 2018.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Argentina-Britain-Falklands/29c378fa525e480283e622f1cd46568a/3/0">AP Photo/Caiti Beattie</a></span>
</figcaption>
</figure>
<h2>Humanitarians in danger</h2>
<p>In conflict zones where militants are engaged in battle against their own governments, the official rules of war may not apply. </p>
<p>In such places, the job of the humanitarian forensic expert involves negotiating the humane treatment of dead bodies, the return of human remains to the families and the honorable disposal of bodies according to the rites of their religion or faith. </p>
<p>This can be dangerous. </p>
<p>In 2007, the Red Cross’ humanitarian forensic team was asked to help in the recovery of the bodies of 11 legislators who had been <a href="https://www.theguardian.com/world/2002/apr/12/colombia.martinhodgson">abducted by the FARC</a>, a Colombian guerrilla movement, five years before and had <a href="https://www.latimes.com/archives/la-xpm-2007-sep-10-fg-colombia10-story.html">recently died</a> under contested circumstances. </p>
<p>The guerrillas said the hostages died in a botched rescue operation by government forces, while the government <a href="https://www.nytimes.com/2007/06/29/world/americas/29colombia.html">accused the guerrillas of executing them</a>. </p>
<p>After a lengthy negotiation, both sides agreed on a brief ceasefire while the Red Cross team collected the bodies. Locating the burial site of the bodies took days, according to <a href="https://www.icrc.org/en/author/dr-morris-tidball-binz-0">Dr. Morris Tidball-Binz</a>, a leading forensic expert with the International Committee of the Red Cross. </p>
<p>He and his colleagues walked for dozens of miles through the Colombian jungle, some of it defended with <a href="https://www.reuters.com/article/us-colombia-landmines/colombia-aims-to-rid-country-of-landmines-by-2021-govt-idUSKBN15T2FM">landmines</a>. </p>
<p>“At night, there were a couple of occasions when we heard explosions around, which indicated the fragility of the ceasefire,” Dr. Tidball-Binz <a href="https://www.icrc.org/en/download/file/84078/irrc_99_905_12.pdf">recalls</a>. </p>
<p>Humanitarian workers undertaking similar conflict-related identification of the dead have become targets of direct or indirect threats in <a href="https://www.icrc.org/en/international-review/article/using-forensic-science-care-dead-and-search-missing-conversation-dr">Argentina and Libya</a>. </p>
<h2>Missing persons and migration</h2>
<p>International humanitarian law includes another difficult-to-meet <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule114">obligation</a>. Families are supposed to be informed about the fate and whereabouts of loved ones who go missing during <a href="https://www.hrw.org/world-report/2019/country-chapters/iraq">war</a> or <a href="http://www.laht.com/article.asp?ArticleId=2407515&CategoryId=12393">armed conflict</a>. </p>
<p>After gathering <a href="https://en.oxforddictionaries.com/definition/ante-mortem">all information possible</a> about the missing person based on the physical evidence available, they closely collaborate with family members to paint a more complete picture of the victims, using DNA, identifying marks and personal belongings to try to identify a missing person. </p>
<p>This is sensitive work. War survivors may be hesitant to speak about missing loved ones because they fear retaliation from the government or an armed faction. Yet family cooperation is essential to locating and identifying those missing in war.</p>
<p>Humanitarian forensic scientists have also played a fundamental role in Europe’s migrant crisis, which has claimed the lives of thousands who <a href="https://www.iom.int/news/mediterranean-migrant-arrivals-reach-4216-2019-deaths-reach-83">die or go missing in the Mediterranean Sea</a> attempting to flee Africa and the Middle East. </p>
<p>After a <a href="http://www.thenewhumanitarian.org/news/2016/10/10/egypt-boat-disaster-shines-light-new-migration-trend">boat packed with migrants</a> sank several miles off the coast of Rasheed, Egypt, in September 2016, for example, just 163 people were rescued. Thirty-three were found dead inside the boat and 168 people drowned. </p>
<p>Scientists from the Egyptian Forensic Medicine Authority were called to the scene to <a href="https://www.reuters.com/article/us-europe-migrants-egypt/boat-carrying-600-migrants-sinks-off-egypt-killing-at-least-43-idUSKCN11R1L0">identify the dead</a> and establish their cause of death.</p>
<p>Humanitarian forensic scientists don’t always succeed. Sometimes, their investigations reach a dead end. The fate of those missing remains a mystery.</p>
<p>In the best-case scenario, though, the difficult work of these humanitarian scientists brings closure to families so that they can start mourning their loss. </p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/115623/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dina Shokry is head of the Forensic Medicine Department at the Armed Forces College of Medicine, Egypt, and President of the Arab Union of Forensic Medicine and Toxicology. She was the President of the 10th International Conference on Forensic Medicine and Sciences, for which the International Committee of the Red Cross was one of the main conference sponsors.</span></em></p><p class="fine-print"><em><span>Ahmad Samarji does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Meet the unsung aid workers who put their lives on the line during war and natural disaster to make sure the dead are treated with respect – and that their grieving families get closure.Ahmad Samarji, Associate Professor of Forensic Science Education & STEM Education and the Assistant Dean of the College of Arts and Sciences, Phoenicia UniversityDina Shokry, Professor of Forensic Medicine, Cairo UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1028652018-10-05T10:42:00Z2018-10-05T10:42:00ZCould an artificial intelligence be considered a person under the law?<figure><img src="https://images.theconversation.com/files/238476/original/file-20180928-48659-1gkudpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sophia, a robot granted citizenship in Saudi Arabia.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Roboter_Sophia_MSC_2018.jpg">MSC/wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Humans aren’t the only people in society – at least according to the law. In the U.S., <a href="https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/">corporations have been given rights of free speech</a> and religion. Some <a href="https://theconversation.com/what-if-nature-like-corporations-had-the-rights-and-protections-of-a-person-64947">natural features also have person-like rights</a>. But both of those required changes to the legal system. A new argument has laid a path for artificial intelligence systems to be recognized as people too – without any legislation, court rulings or other revisions to existing law.</p>
<p>Legal scholar Shawn Bayern has shown that anyone can <a href="https://doi.org/10.1017/S1867299X00005729">confer legal personhood on a computer system</a>, by putting it in control of a limited liability corporation in the U.S. If that maneuver is upheld in courts, <a href="https://cyber.harvard.edu/publication/2018/artificial-intelligence-human-rights">artificial intelligence systems</a> would be able to own property, sue, hire lawyers and enjoy freedom of speech and other protections under the law. <a href="https://scholar.google.com/citations?user=0_Rq68cAAAAJ&hl=en">In my view</a>, human rights and dignity would suffer as a result. </p>
<h2>The corporate loophole</h2>
<p>Giving AIs rights similar to humans involves a technical lawyerly maneuver. It starts with <a href="https://doi.org/10.1017/S1867299X00005729">one person setting up two limited liability companies</a> and turning over control of each company to a separate autonomous or artificially intelligent system. Then the person would add each company as a member of the other LLC. In the last step, the person would withdraw from both LLCs, leaving each LLC – a corporate entity with legal personhood – governed only by the other’s AI system.</p>
<p>That process doesn’t require the computer system to have any particular level of intelligence or capability. It could just be a sequence of “if” statements looking, for example, at the stock market and <a href="https://www.investopedia.com/articles/active-trading/101014/basics-algorithmic-trading-concepts-and-examples.asp">making decisions to buy and sell</a> based on prices falling or rising. It could even be an algorithm that <a href="http://www.randomdecisionmaker.com/">makes decisions randomly</a>, or an <a href="https://scratch.mit.edu/projects/115569822/">emulation of an amoeba</a>.</p>
<h2>Reducing human status</h2>
<p>Granting human rights to a computer would degrade human dignity. For instance, when <a href="https://www.independent.co.uk/life-style/gadgets-and-tech/news/saudi-arabia-robot-sophia-citizenship-android-riyadh-citizen-passport-future-a8021601.html">Saudi Arabia granted citizenship to a robot called Sophia</a>, <a href="https://qz.com/1205017/saudi-arabias-robot-citizen-is-eroding-human-rights/">human women</a>, including <a href="https://www.washingtonpost.com/news/innovations/wp/2017/10/29/saudi-arabia-which-denies-women-equal-rights-makes-a-robot-a-citizen/">feminist scholars</a>, objected, noting that the robot was given more rights than many Saudi women have.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/R0bVxbRCd-U?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">An interview with Sophia, a robot citizen of Saudi Arabia.</span></figcaption>
</figure>
<p>In certain places, some people might have fewer rights than nonintelligent software and robots. In countries that limit <a href="http://www.un.org/en/universal-declaration-human-rights/">citizens’ rights</a> to free speech, free religious practice and expression of sexuality, corporations – potentially including AI-run companies – <a href="https://www.huffingtonpost.com/adam-winkler/corporations-are-people-a_b_5543833.html">could have more rights</a>. That would be an enormous indignity.</p>
<p>The risk doesn’t end there: If AI systems became more intelligent than people, <a href="https://theconversation.com/what-an-artificial-intelligence-researcher-fears-about-ai-78655">humans could be relegated to an inferior role</a> – as workers hired and fired by AI corporate overlords – or even <a href="https://www.imdb.com/title/tt2145829/">challenged for social dominance</a>.</p>
<p>Artificial intelligence systems could be tasked with law enforcement among human populations – acting as <a href="https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869">judges, jurors, jailers and even executioners</a>. <a href="https://theconversation.com/losing-control-the-dangers-of-killer-robots-58262">Warrior robots</a> could similarly be assigned to the military and given power to decide on targets and acceptable collateral damage – even in violation of <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">international humanitarian laws</a>. Most legal systems are not set up to <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">punish robots</a> or otherwise hold them accountable for wrongdoing.</p>
<h2>What about voting?</h2>
<p>Granting voting rights to systems that can copy themselves would render humans’ votes meaningless. Even without taking that significant step, though, the possibility of AI-controlled corporations with basic human rights poses serious dangers. No current laws would prevent a <a href="https://theconversation.com/fighting-malevolent-ai-artificial-intelligence-meet-cybersecurity-60361">malevolent AI</a> from operating a corporation that worked to subjugate or exterminate humanity <a href="https://www.reuters.com/article/us-usa-court-employment/companies-win-big-at-us-top-court-on-worker-class-action-curbs-idUSKCN1IM1GW">through legal means</a> and political influence. Computer-controlled companies could turn out to be less responsive to public opinion or protests than human-run firms are.</p>
<h2>Immortal wealth</h2>
<p>Two other aspects of corporations make people even more vulnerable to AI systems with human legal rights: They don’t die, and they can give unlimited amounts of money to political candidates and groups. </p>
<p>Artificial intelligences could earn money by exploiting workers, using algorithms to <a href="https://www.seattletimes.com/business/trust-the-machines-these-funds-are-run-by-artificial-intelligence/">price goods and manage investments</a>, and find new ways to <a href="https://www.ibm.com/blogs/watson/2018/04/how-kpmg-uses-ai-to-empower-their-auditors/">automate key business processes</a>. Over long periods of time, that could <a href="https://www.cnbc.com/2018/02/01/apple-earnings-q1-2018-how-much-money-does-apple-have.html">add up to enormous earnings</a> – which would never be split up among descendants. That wealth could easily be <a href="https://www.businessinsider.com/how-corporations-turned-into-political-beasts-2015-4">converted into political power</a>. </p>
<p>Politicians financially backed by algorithmic entities would be able to take on legislative bodies, impeach presidents and help to get figureheads appointed to the Supreme Court. Those human figureheads could be used to expand corporate rights or even establish new rights specific to artificial intelligence systems – expanding the threats to humanity even more.</p><img src="https://counter.theconversation.com/content/102865/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roman V. Yampolskiy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal loophole could grant computer systems many legal rights people have – threatening human rights and dignity and setting up some real legal and moral problems.Roman V. Yampolskiy, Associate Professor of Computer Engineering and Computer Science, University of LouisvilleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1027362018-09-06T13:19:17Z2018-09-06T13:19:17ZAI has already been weaponised – and it shows why we should ban ‘killer robots’<figure><img src="https://images.theconversation.com/files/235215/original/file-20180906-190636-aogrro.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/unmanned-air-uav-spy-above-enemy-26952160?src=-ZOKXFCzFXCQZUjYk5R16g-1-16">Oleg Yarko/Shutterstock</a></span></figcaption></figure><p>A dividing line is emerging in the debate over so-called killer robots. Many countries want to see new international law on autonomous weapon systems that can target and kill people without human intervention. But those countries already developing such weapons are instead trying to highlight their supposed benefits.</p>
<p>I witnessed this growing gulf at a recent UN meeting of more than 70 countries <a href="https://www.unog.ch/80256EE600585943/(httpPages)/7C335E71DFCB29D1C1258243003E8724?OpenDocument">in Geneva</a>, where those in favour of autonomous weapons, including the US, Australia and South Korea, were more vocal than ever. At the meeting, <a href="https://www.unog.ch/80256EDD006B8954/(httpAssets)/D1A2BA4B7B71D29FC12582F6004386EF/$file/2018_GGE+LAWS_August_Working+Paper_US.pdf">the US claimed</a> that such weapons could actually make it easier to follow international humanitarian law by making military action more precise.</p>
<p>Yet it’s highly speculative to say that “killer robots” will ever be able to follow humanitarian law at all. And while politicians continue to argue about this, the spread of autonomy and artificial intelligence in existing military technology is already effectively <a href="https://www.cambridge.org/core/journals/review-of-international-studies/article/autonomous-weapons-systems-and-changing-norms-in-international-relations/8E8CC29419AF2EF403EA02ACACFCF223">setting undesirable standards</a> for its role in the use of force.</p>
<p>A series of <a href="https://futureoflife.org/open-letter-autonomous-weapons/">open letters</a> by prominent researchers speaking out against weaponising artificial intelligence have helped bring the debate about autonomous military systems to public attention. The problem is that the debate is framed as if this technology is something from the future. In fact, the questions it raises are effectively already being addressed by existing systems.</p>
<p>Most air defence systems <a href="https://www.sipri.org/sites/default/files/2017-11/siprireport_mapping_the_development_of_autonomy_in_weapon_systems_1117_1.pdf">already have</a> significant autonomy in the targeting process, and military aircraft have highly automated features. This means “robots” are already involved in identifying and engaging targets.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/235217/original/file-20180906-190673-hk5e4w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Humans still press the trigger, but for how long?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/female-military-drone-operator-wide-shot-539931541?src=eQqZybPxaHhkvow-YSqfIA-1-1">Burlingham/Shutterstock</a></span>
</figcaption>
</figure>
<p>Meanwhile, another important question raised by current technology is missing from the ongoing discussion. Remotely operated drones are currently used by several countries’ militaries to drop bombs on targets. But we know from incidents <a href="https://www.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/The%20Civilian%20Impact%20of%20Drones.pdf">in Afghanistan and elsewhere</a> that drone images aren’t enough to clearly distinguish between civilians and combatants. We also know that current AI technology can contain significant bias that effects its decision making, often with <a href="http://blogs.icrc.org/law-and-policy/2018/08/28/impact-gender-race-bias-ai/">harmful effects</a>. </p>
<p>As future fully autonomous aircraft are likely to be used in similar ways to drones, they will probably follow the practices laid out by drones. Yet states using existing autonomous technologies are excluding them from the wider debate by referring to them as “semi-autonomous” or so-called “legacy systems”. Again, this makes the issue of “killer robots” seem more futuristic than it really is. This also prevents the international community from taking a closer look at whether these systems are fundamentally appropriate under humanitarian law.</p>
<p>Several key principles of international humanitarian law require deliberate human judgements that machines <a href="https://thebulletin.org/landing_article/why-the-world-needs-to-regulate-autonomous-weapons-and-soon/">are incapable of</a>. For example, the legal definition of who is a civilian and who is a combatant isn’t written in a way that could be programmed into AI, and <a href="https://www.tandfonline.com/doi/abs/10.1080/15027570.2010.537903">machines lack</a> the situational awareness and ability to infer things necessary to make this decision.</p>
<h2>Invisible decision making</h2>
<p>More profoundly, the more that targets are chosen and potentially attacked by machines, the less we know about how those decisions are made. Drones <a href="https://www.theguardian.com/science/the-lay-scientist/2016/feb/18/has-a-rampaging-ai-algorithm-really-killed-thousands-in-pakistan">already rely heavily</a> on intelligence data processed by “black box” algorithms that are very difficult to understand to choose their proposed targets. This <a href="http://blogs.icrc.org/law-and-policy/2018/08/29/im-possibility-meaningful-human-control-lethal-autonomous-weapon-systems/">makes it harder</a> for the human operators who actually press the trigger to question target proposals.</p>
<p>As the UN continues to debate this issue, it’s worth noting that most countries in favour of banning autonomous weapons are developing countries, which are typically <a href="http://www.article36.org/wp-content/uploads/2016/04/A36-Disarm-Dev-Marginalisation.pdf">less likely</a> to attend international disarmament talks. So the fact that they are willing to speak out strongly against autonomous weapons makes their doing so all the more significant. Their history of experiencing interventions and invasions from richer, more powerful countries (such as some of the ones in favour of autonomous weapons) also reminds us that they are most at risk from this technology.</p>
<p>Given what we know about existing autonomous systems, we should be very concerned that “killer robots” will make breaches of humanitarian law more, not less, likely. This threat can only be prevented by negotiating new international law curbing their use.</p><img src="https://counter.theconversation.com/content/102736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ingvild Bode receives funding from the Joseph Rowntree Charitable Trust. </span></em></p>The debate on autonomous weapons isn’t paying enough attention to the technology already in use.Ingvild Bode, Senior Lecturer in International Relations, University of KentLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1014272018-08-21T10:32:05Z2018-08-21T10:32:05ZBan ‘killer robots’ to protect fundamental moral and legal principles<figure><img src="https://images.theconversation.com/files/232107/original/file-20180815-2909-5xtnkd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. military is already testing a Modular Advanced Armed Robotic System.</span> <span class="attribution"><a class="source" href="https://www.marforpac.marines.mil/Exercises/RIMPAC/RIMPAC-Photos/igphoto/2001572635/">Lance Cpl. Julien Rodarte, U.S. Marine Corps</a></span></figcaption></figure><p>When drafting a <a href="https://www.britannica.com/event/Hague-Conventions">treaty on the laws of war</a> at the end of the 19th century, diplomats could not foresee the future of weapons development. But they did adopt a legal and moral standard for judging new technology not covered by existing treaty language. </p>
<p>This standard, known as the <a href="https://www.icrc.org/eng/resources/documents/article/other/57jnhy.htm">Martens Clause</a>, has survived generations of international humanitarian law and gained renewed relevance in a world where autonomous weapons are on the brink of making their own determinations about whom to shoot and when. The Martens Clause calls on countries not to use weapons that depart “from the principles of humanity and from the dictates of public conscience.”</p>
<p>I was the lead author of a <a href="https://www.hrw.org/node/321376">new report</a> by <a href="https://www.hrw.org/">Human Rights Watch</a> and the <a href="http://hrp.law.harvard.edu/">Harvard Law School International Human Rights Clinic</a> that explains why fully autonomous weapons would run counter to the principles of humanity and the dictates of public conscience. We found that to comply with the Martens Clause, countries should adopt a treaty banning the development, production and use of these <a href="https://theconversation.com/losing-control-the-dangers-of-killer-robots-58262">weapons</a>.</p>
<p>Representatives of more than 70 nations will gather from August 27 to 31 at the United Nations in Geneva to debate how to address the problems with what they call lethal autonomous weapon systems. These countries, which are parties to the <a href="https://www.unog.ch/80256EE600585943/(httpPages)/4F0DEF093B4860B4C1257180004B1B30?OpenDocument">Convention on Conventional Weapons</a>, have discussed the issue for five years. My co-authors and I believe it is time they took action and agreed to start negotiating a ban next year.</p>
<h2>Making rules for the unknowable</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=712&fit=crop&dpr=1 600w, https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=712&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=712&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=895&fit=crop&dpr=1 754w, https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=895&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/232104/original/file-20180815-2918-y4vzrw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=895&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Russian diplomat Fyodor Fyodorovich Martens, for whom the Martens Clause is named.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Friedrich_Fromhold_Martens_(1845-1909).jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The Martens Clause provides a baseline of protection for civilians and soldiers in the absence of specific treaty law. The clause also sets out a standard for evaluating new situations and technologies that were not previously envisioned.</p>
<p>Fully autonomous weapons, sometimes called “killer robots,” would select and engage targets without meaningful human control. They would be a dangerous step beyond current armed drones because there would be no human in the loop to determine when to fire and at what target. Although fully autonomous weapons do not yet exist, China, Israel, Russia, South Korea, the United Kingdom and the United States are <a href="https://www.stopkillerrobots.org/wp-content/uploads/2018/03/KRC_Briefing_CCWApr2018.pdf">all working to develop</a> them. They argue that the technology would process information faster and keep soldiers off the battlefield.</p>
<p>The possibility that fully autonomous weapons could soon become a reality makes it imperative for those and other countries to apply the Martens Clause and assess whether the technology would offend basic humanity and the public conscience. Our analysis finds that fully autonomous weapons would fail the test on both counts.</p>
<h2>Principles of humanity</h2>
<p>The history of the Martens Clause shows that it is a fundamental principle of international humanitarian law. Originating in the <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=9FE084CDAC63D10FC12563CD00515C4D">1899 Hague Convention</a>, versions of it appear in all four <a href="https://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf#page=83">Geneva Conventions</a> and <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6C86520D7EFAD527C12563CD0051D63C">Additional Protocol I</a>. It is cited in <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=056FD614A7D05D90C12563CD0051EC75">numerous</a> <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=CB3CAB98FF67D28EC12574C60038D63C">disarmament</a> <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6D8BF0E4ABD74D62C125825D004955B1">treaties</a>. In 1995, concerns under the Martens Clause motivated countries to adopt a <a href="https://ihl-databases.icrc.org/ihl/INTRO/570">preemptive ban on blinding lasers</a>. </p>
<p>The principles of humanity require humane treatment of others and respect for human life and dignity. Fully autonomous weapons could not meet these requirements because they would be unable to feel compassion, an emotion that inspires people to minimize suffering and death. The weapons would also lack the legal and ethical judgment necessary to ensure that they protect civilians in complex and unpredictable conflict situations.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/232108/original/file-20180815-2924-75wyif.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Under human supervision – for now.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Marine_Corps_Warfighting_Laboratory_MAGTAF_Integrated_Experiment_(MCWL)_160709-M-OB268-165.jpg">Pfc. Rhita Daniel, U.S. Marine Corps</a></span>
</figcaption>
</figure>
<p>In addition, as inanimate machines, these weapons could not truly understand the value of an individual life or the significance of its loss. Their algorithms would translate human lives into numerical values. By making lethal decisions based on such algorithms, they would reduce their human targets – whether civilians or soldiers – to objects, undermining their human dignity.</p>
<h2>Dictates of public conscience</h2>
<p>The growing opposition to fully autonomous weapons shows that they also conflict with the dictates of public conscience. Governments, experts and the general public have all objected, often on moral grounds, to the possibility of losing human control over the use of force.</p>
<p>To date, <a href="https://www.stopkillerrobots.org/wp-content/uploads/2018/04/KRC_CountryViews_13Apr2018.pdf">26 countries</a> have expressly supported a ban, including China. <a href="https://www.theguardian.com/commentisfree/2018/apr/11/killer-robot-weapons-autonomous-ai-warfare-un">Most countries</a> that have spoken at the U.N. meetings on conventional weapons have called for maintaining some form of meaningful human control over the use of force. Requiring such control is effectively the same as banning weapons that operate without a person who decides when to kill.</p>
<p>Thousands of <a href="https://futureoflife.org/open-letter-autonomous-weapons/">scientists and artificial intelligence experts</a> have endorsed a prohibition and demanded action from the United Nations. In July 2018, they issued a <a href="https://futureoflife.org/lethal-autonomous-weapons-pledge/">pledge not to assist</a> with the development or use of fully autonomous weapons. <a href="https://www.clearpathrobotics.com/2014/08/clearpath-takes-stance-against-killer-robots/">Major corporations</a> have also called for the prohibition.</p>
<p>More than 160 <a href="https://www.paxforpeace.nl/stay-informed/news/religious-leaders-call-for-a-ban-on-killer-robots">faith leaders</a> and more than 20 <a href="https://nobelwomensinitiative.org/nobel-peace-laureates-call-for-preemptive-ban-on-killer-robots/?ref=204">Nobel Peace Prize laureates</a> have similarly condemned the technology and backed a ban. Several <a href="http://www.openroboethics.org/wp-content/uploads/2015/11/ORi_LAWS2015.pdf">international</a> and <a href="http://duckofminerva.dreamhosters.com/wp-content/uploads/2013/06/UMass-Survey_Public-Opinion-on-Autonomous-Weapons.pdf">national</a> public opinion polls have found that a majority of people who responded opposed developing and using fully autonomous weapons.</p>
<p>The <a href="https://www.stopkillerrobots.org/">Campaign to Stop Killer Robots</a>, a coalition of 75 nongovernmental organizations from 42 countries, has led opposition by nongovernmental groups. Human Rights Watch, for which I work, co-founded and coordinates the campaign.</p>
<h2>Other problems with killer robots</h2>
<p>Fully autonomous weapons would <a href="https://www.hrw.org/sites/default/files/report_pdf/arms1216_web.pdf">threaten more</a> than humanity and the public conscience. They would likely violate other key rules of international law. Their use would create a gap in accountability because no one could be held individually liable for the unforeseeable actions of an autonomous robot.</p>
<p>Furthermore, the existence of killer robots would spark widespread proliferation and an arms race – dangerous developments made worse by the fact that fully autonomous weapons would be vulnerable to hacking or technological failures.</p>
<p>Bolstering the case for a ban, our Martens Clause assessment highlights in particular how delegating life-and-death decisions to machines would violate core human values. Our report finds that there should always be meaningful human control over the use of force. We urge countries at this U.N. meeting to work toward a new treaty that would save people from lethal attacks made without human judgment or compassion. A clear ban on fully autonomous weapons would reinforce the longstanding moral and legal foundations of international humanitarian law articulated in the Martens Clause.</p><img src="https://counter.theconversation.com/content/101427/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bonnie Docherty works as a senior researcher in the Arms Division of Human Rights Watch.</span></em></p>A standard element of international humanitarian law since 1899 should guide countries as they consider banning lethal autonomous weapons systems.Bonnie Docherty, Lecturer on Law and Associate Director of Armed Conflict and Civilian Protection, International Human Rights Clinic, Harvard Law School, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/958242018-05-01T10:41:10Z2018-05-01T10:41:10ZCentral American migrant caravan begins crossing US border: 5 essential reads<p><em>Editor’s note: The following is a roundup of stories from The Conversation’s archive.</em></p>
<p>The Central American migrants whose month-long journey northward across Mexico spurred President Donald Trump to attack them on Twitter have <a href="https://www.reuters.com/article/us-usa-immigration-caravan/central-american-caravan-women-and-children-enter-us-defying-trump-idUSKBN1I2330">begun to enter the United States</a>. </p>
<p>Some 1,500 Central Americans, most of them Hondurans, began their trip from Guatemala in early April. Traveling across Mexico by foot, train and bus, they moved together in caravan style for safety. Roughly 200 migrants stayed with the caravan until reaching the U.S.-Mexico border at Tijuana.</p>
<p>Central America is one of the most violent regions on the planet. The migrants planned to apply for asylum in the United States, but Trump tweeted that the group “better be stopped.” </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"981121409807155200"}"></div></p>
<p>After a week-long standoff at the San Ysidro border crossing, officials have now begun allowing some women and children to enter the country.</p>
<h2>1. Who gets asylum?</h2>
<p>Under international law, countries must offer asylum to migrants who can prove they have a “credible fear” of certain kinds of violence at home.</p>
<p>“The rights of refugees – those forced to leave their country because of war or persecution – are enshrined in the 1951 Convention for Refugees and its subsequent 1967 protocol,” <a href="https://theconversation.com/refugee-or-migrant-sometimes-the-line-is-blurred-79700">explains Parvati Nair of the United Nations University</a>. </p>
<p>The Trump administration asserts that the caravan members are not refugees but criminals committing immigration fraud. </p>
<p>The boundary between migrant and refugee can indeed be blurry, Nair says. “Many displaced people today defy the parameters used by policymakers to define who is entitled to what rights,” which are more than a half-century old. </p>
<h2>2. Are Central Americans migrants or refugees?</h2>
<p>Trump’s restrictive approach to immigration evidently hinges on a belief that most people crossing the border are economic migrants from Mexico. </p>
<p>“They’re taking our manufacturing jobs,” he said in 2015. “They’re taking our money.” </p>
<p>That perception is out of date, says <a href="https://theconversation.com/the-face-of-latin-american-migration-is-rapidly-changing-us-policy-isnt-keeping-up-74959">Jonathan Hiskey</a>, a migration scholar at Vanderbilt University. </p>
<p>“An increasing number of individuals are now arriving at the U.S. southwest border because of crime, violence and insecurity in Central America,” Hiskey says.</p>
<p>With 60 murders per 100,000 people in 2017, El Salvador was the deadliest places in the world that was not at war. Almost 4,000 people were killed there last year.</p>
<p>Honduras’ murder rate has dropped markedly in recent years, but with 42.8 murders per 100,000 people in 2017, it is still one of the world’s most dangerous places.</p>
<p>Hiskey’s research shows that fear – not economic opportunity – is what drives many migrants to leave home. </p>
<p>“The strongest predictor of someone having an ‘intent to emigrate,’” he writes, “was whether they had been the victim of crime multiple times in the previous 12 months.” </p>
<p>Rather than trying to sneak across the U.S. border, Hiskey says that many of these migrants voluntarily surrender and request asylum in the United States.</p>
<h2>3. What are Central Americans fleeing?</h2>
<p>Many of the Central American asylum seekers now stuck in Tijuana have told reporters that their lives were threatened by gangs like MS-13. Some have family members who have been killed.</p>
<p>MS-13 first appeared <a href="https://theconversation.com/central-american-gangs-like-ms-13-were-born-out-of-failed-anti-crime-policies-76554">as a street gang in Los Angeles during the 1980s</a>. It was not until nearly two decades later, in the early 2000s, that the group expanded into Central America, says Florida International University professor José Miguel Cruz. </p>
<p>As rival Salvadoran gangs from LA did likewise, crime across Central American cities increased. Police in El Salvador, Guatemala and Honduras began to crack down on gang activity. </p>
<p>“In El Salvador, the spiritual homeland of MS-13, the police arrested nearly 31,000 young people from 2003 to 2005,” Cruz writes. </p>
<p>As Central American gangs grew stronger, they began fighting to expand their territorial control across the region. Beginning in 2010, these turf wars contributed to an astronomical rise in violence across the region.</p>
<p>“El Salvador went from a homicide rate of 36.9 murders per 100,000 inhabitants in 2000 to 64.4 in 2006 and 70.9 in 2009,” says Cruz. “The same thing happened in Honduras and Guatemala, where the rivalry between MS-13 and the Eighteenth Street Gang descended into a succession of local street wars.”</p>
<h2>4. Why can’t their governments protect them?</h2>
<p>Brutal gangs are <a href="https://theconversation.com/in-central-america-gangs-like-ms-13-are-bad-but-corrupt-politicians-may-be-worse-86113">not the sole cause of Central America’s violence</a>, Cruz cautions. Rather, they are “a symptom of a far more critical issue plaguing the region – namely, corruption.” </p>
<p>Prosecutors in Honduras and El Salvador have discovered numerous financial links between MS-13 and high-ranking government officials. </p>
<p>“They shield criminal organizations in exchange for economic support and political backing in gang-controlled barrios,” explains Cruz. These illicit relationships have “shattered most efforts to build the kinds of criminal justice institutions necessary to support a democratic society.” </p>
<p>Indictments for government corruption are rare in Central America. As a result, criminals can extort, threaten and kill with impunity. In 2014, 99 percent of all murders in Honduras went unsolved.</p>
<h2>5. What is Mexico’s role?</h2>
<p>Fleeing these conditions, hundreds of thousands of Central Americans flee for the United States each year. To get there, they must cross Mexico, which does not criminalize undocumented border crossings into its territory. </p>
<p>But since 2014 the U.S. has <a href="https://theconversation.com/how-the-us-is-outsourcing-border-enforcement-to-mexico-69272">put increasing pressure on the Mexican government</a> to increase immigration enforcement and stop Central American migrants before they reach the U.S.-Mexico border, writes Luís Gómez Romero, a professor at Australia’s University of Wollongong. </p>
<p>In response, Mexico has beefed up security along its border with Guatemala, “increased patrols throughout areas where migrants travel and conducted controversial raids,” Gómez Romero says. </p>
<p>Increased enforcement has changed migration routes but not deterred migrants. In 2013, Mexico deported 80,709 immigrants, most of them Central American. In 2016, it sent an estimated 165,000 people – including thousands who had requested asylum – back home.</p><img src="https://counter.theconversation.com/content/95824/count.gif" alt="The Conversation" width="1" height="1" />
Some 200 Central Americans who fled violence at home want to apply for asylum in the US. Trump says they’re ‘not welcome.’ Here, key info on the ‘caravan’ to the US-Mexico border.Catesby Holmes, International Editor | Politics Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/880542017-11-30T13:47:36Z2017-11-30T13:47:36ZTwo decades after they were banned, it’s time to make landmines war crimes<p>It’s been 20 years since 133 states signed the <a href="https://www.armscontrol.org/factsheets/ottawa">Ottawa Convention</a> banning the use of anti-personnel mines. Today, some 162 states are party to the convention. It was a huge step towards eliminating these heinous devices – but the work is far from done. </p>
<p>The two decades since the convention was signed have seen some successes. The use of landmines has declined <a href="https://www.csmonitor.com/World/Progress-Watch/2017/0927/Land-mine-casualties-show-signs-of-global-decline">worldwide</a>; the convention prohibits not only their use in times of war, but their production, export and stockpiling. It paved the way for the 2010 <a href="http://www.clusterconvention.org/">Dublin Convention</a> on banning cluster munitions, and helped create organisations that promote greater respect for the laws of war, among them <a href="https://genevacall.org/">Geneva Call</a>, which works with non-state armed groups to keep them from using landmines and child soldiers. But some battles are not yet won. </p>
<p>While most countries have signed up to the Ottawa Convention, some of the world’s biggest military powers have not. Among them are Russia, China, India and Saudi Arabia. The US has also not signed up to the Ottawa Convention over maintenance of the <a href="https://www.theguardian.com/world/2016/mar/21/north-korea-south-korea-dmz-landmines">minefields in the demilitarised zone</a> on the Korean peninsula, though in recent years its military has <a href="http://www.abc.net.au/news/2014-06-28/us-announces-cessation-of-anti-personnel-landmine-production/5556798">stopped</a> using and stockpiling anti-personnel mines.</p>
<p>Most dispiritingly and urgently of all, since 1997, landmines have killed or seriously maimed more than <a href="http://www.the-monitor.org/media/2386748/Landmine-Monitor-2016-web.pdf">100,000 civilians</a>. Clearly, further measures are needed to deter their use. Now, <a href="https://treaties.un.org/doc/Publication/CN/2017/CN.480.2017-Eng.pdf">Belgium</a> is proposing to add an amendment to the Rome Statute of the International Criminal Court that would make it an international war crime to use landmines. </p>
<p>But what does the law actually say, and how can it be tightened?</p>
<h2>Landmines as war crimes</h2>
<p>In <a href="https://blogs.qub.ac.uk/hrc/files/2017/11/Final-Report-War-Crimes.pdf">a new report</a>, my co-researchers and I explain that landmines can amount to war crimes in certain circumstances. There are <a href="https://www.icrc.org/eng/assets/files/other/icrc_002_0811.pdf">rules</a> that govern their legal use: they must be detectable, equipped with self-destruct mechanisms, deployed only in fenced-off and clearly marked areas, and they must not contain anti-handling devices. In a nutshell, this means anti-personnel mines can amount to war crimes where they are used indiscriminately or cause unnecessary suffering.</p>
<p>We also suggest that the same applies to booby-traps and other improvised explosive devices. With anti-personnel mines increasingly prohibited and controlled, these devices are proliferating in conflicts around the world as armed non-state groups manufacture their own crude but lethal devices. To take one example, in Syria in 2016, some <a href="https://aoav.org.uk/wp-content/uploads/2017/05/AOAV-Explosive-Monitor-2017v9single-pages.pdf">14,301 civilians</a> were killed or seriously injured by such weapons.</p>
<p>Under the <a href="https://theconversation.com/a-guide-to-the-geneva-convention-for-beginners-dummies-and-newly-elected-world-leaders-72155">laws of war</a>, hostilities must be conducted according to certain principles meant to limit harm. Under these principles, anti-personnel mines can amount to a grave breach of international humanitarian law because they cannot distinguish between civilians and combatants. </p>
<p>This civilian-combatant distinction is a cardinal principle of international humanitarian law, intended to minimise harm to civilians by keeping violence a matter for combatants. Because anti-personnel mines explode no matter who stands on them, using them violates this principle. And after conflicts where anti-personnel mines are used, many of them remain left behind in the ground unexploded, meaning they continue to indiscriminately kill and maim civilians for decades. </p>
<p>Perhaps the most notorious case of this problem is <a href="https://www.pri.org/stories/2017-11-24/cambodia-s-female-deminers-clean-country-war-s-deadly-reminders">Cambodia</a>. Since the Khmer Rouge were <a href="http://www.cambodiatribunal.org/history/cambodian-history/khmer-rouge-history/">defeated in 1979</a>, <a href="https://apnews.com/93989bc0cbc44cb0b01c37be653e89df/cambodia-seeking-400-million-complete-demining">more than 60,000 civilians</a> have been killed or wounded after stepping on mines, and <a href="http://www.halotrust.org/where-we-work/south-asia/cambodia/">more than 25,000</a> have been left amputees.</p>
<p>Anti-personnel mines can also cause <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule70">superfluous injury or unnecessary suffering</a>, which international humanitarian law specifically prohibits. This means they don’t just kill or injure enemy combatants for tactical purposes, but also cause harm which serves no military purpose. Landmines often explode upon contact with a person’s foot, causing fragments to be fired upwards and sidewards. These fragments carry dirt and bacteria that can cause secondary infections, meaning victims can lose an infected limb or be permanently blinded and deafened.</p>
<h2>Clearing up</h2>
<p>With the <a href="https://www.brookings.edu/blog/markaz/2017/10/19/how-the-islamic-state-will-grapple-with-defeat-in-raqqa/">territorial defeat</a> of the so-called Islamic State in Iraq and Syria, state forces and other personnel have a difficult task of clearing explosive devices left by the group in cities like Mosul and Raqqa. Briton <a href="https://www.theguardian.com/uk-news/2017/oct/24/briton-who-fought-isis-killed-in-raqqa-a-week-after-city-liberated">Jac Holmes</a> was killed doing such work in Raqqa in October this year. </p>
<p>Destroying anti-personnel mines and other explosive remnants of war isn’t just a job for states. Non-state armed groups also have a role to play. The NGO <a href="https://genevacall.org/what-we-do/landmine-ban/">Geneva Call</a> has successfully persuaded 49 such groups to stop using these devices, and even to help in cleanup efforts; as a part of the peace process in Colombia, members of <a href="https://www.telesurtv.net/english/news/Colombia-Declares-166-Municipalities-Free-of-Landmines-20170818-0009.html">FARC</a> have been working with the Colombian government and NGOs to clear the country of mines altogether.</p>
<p>These efforts prove that getting rid of landmines for good is not some impossible dream. But it’s time for the law to catch up. Explosive devices are still killing civilians years after wars have ended, and more must be done to make sure everyone can enjoy the peace safely.</p><img src="https://counter.theconversation.com/content/88054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke Moffett receives funding from Arts and Humanities Research Council UK for research on reparations and cultural property. </span></em></p>What can international law do to help curb the use of a lethal, indiscriminate weapon?Luke Moffett, Senior Law Lecturer in international criminal justice, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/651532016-09-29T00:24:15Z2016-09-29T00:24:15ZAustralia’s proposed war crimes amendments demand careful scrutiny<p>Prime Minister Malcolm Turnbull <a href="https://malcolmturnbull.com.au/media/national-security-statement-on-counter-terrorism">announced</a> this month that the government will seek to amend the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Criminal Code</a> to assist in the fight against Islamic State (IS) in Iraq and Syria. The <a href="http://www.minister.defence.gov.au/2016/09/01/prime-minister-minister-for-defence-australian-defence-force-targeting-of-daesh/">changes flagged</a> include:</p>
<blockquote>
<p>… targeting those who may not openly take up arms but are still key to Daesh’s [another name for IS] fighting capability. </p>
</blockquote>
<p>Defence Minister Marise Payne explained that the amendments would enable the Australian Defence Force to target a broader range of IS combatants. Opposition Leader Bill Shorten has indicated Labor <a href="http://www.billshorten.com.au/statement_on_national_security_canberra_thursday_1_september_2016">will support</a> the amendments.</p>
<p>Changes to Division 268 of the Criminal Code would clarify that the war crimes offence of murder would not apply to members of an organised armed group. Also, murder would not apply to collateral civilian deaths resulting from an otherwise lawful attack.</p>
<p>If enacted, this would align Australian domestic law with international law. The government, however, has not yet explained the relevant differences between these laws.</p>
<h2>What is lawful in conflict?</h2>
<p>The Criminal Code, which in part deals with offences in a non-international armed conflict, currently includes an offence of murder. If a perpetrator causes the death of one or more persons not taking an active part in the hostilities, they face a penalty of life imprisonment.</p>
<p>Under current domestic law, if the perpetrator knows, or is reckless as to whether the person or persons are not taking an active part in the hostilities, and attacks, they have broken the law.</p>
<p>International humanitarian law, or the law of armed conflict, has very detailed rules about this. Targeting people “who are not taking an active part in the hostilities” is unlawful. </p>
<p>In 2009, the International Committee of the Red Cross <a href="https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf">released</a> the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.</p>
<p>Some American military lawyers have criticised this document. The main criticism is that it blurs the line between civilians who take an active part in hostilities and members of organised armed groups. State practice also diverges from the Red Cross guidance to some extent.</p>
<h2>How do we decide who is a citizen?</h2>
<p>The Red Cross guidance is based on the fundamental international humanitarian law principle of distinction between armed forces, or members of organised armed groups like IS, and civilians. It says:</p>
<blockquote>
<p>… all persons who are not members of state armed forces or organised armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless … they take a direct part in hostilities.</p>
</blockquote>
<p>Individuals who continuously accompany or support an organised armed group, but who do not directly participate in hostilities, are not members of that group within the meaning of international humanitarian law. This is because they do not carry out a “continuous combat function”. </p>
<p>Personnel like recruiters, trainers, financiers and propagandists may not be targeted. This is also true of individuals involved in purchasing, smuggling, manufacturing and maintaining weapons. Unless their activities amount to direct participation in hostilities, they are protected by international humanitarian law. </p>
<p>How far the continuous combat function extends, though, is open to debate. It may extend, for example, to the makers of improvised explosive devices.</p>
<h2>Who would lose protection under the changes?</h2>
<p>Under the proposed changes to Australia’s Criminal Code, the war crime offence of murder, in a non-international armed conflict, would not apply to collateral civilian deaths resulting from an otherwise lawful attack. Clearly, the definition of what constitutes a “lawful attack” needs careful examination. </p>
<p>In international humanitarian law, a lawful attack is one that conforms to <a href="https://books.google.com.au/books?id=pOokAwAAQBAJ&pg=PA330&lpg=PA330&dq#v=onepage&q&f=false">fundamental principles</a> of military necessity and humanity. Specifically, only to the degree: </p>
<blockquote>
<p>… that is required in order to achieve the legitimate purpose of the conflict. Namely, the complete or partial submission of the enemy at the earliest possible moment, with the minimum expenditure of life and resources. </p>
</blockquote>
<p>This severely restricts military action that would result in “collateral civilian deaths”. Part of the objective in amending the war crimes provisions seems to be to incorporate the international humanitarian law principle of <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14">proportionality</a>. </p>
<p>An attack expected to cause incidental loss of civilian life or injury to civilians would therefore be unlawful. If it would be excessive in relation to the concrete and direct military advantage anticipated, it would breach the Criminal Code.</p>
<p>These proposed amendments, when released, should be examined carefully. They must maintain the constraints on military operations imposed by international humanitarian law, which are carefully observed by the Australian Defence Force.</p><img src="https://counter.theconversation.com/content/65153/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Boreham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Under proposed changes, the war crime offence of murder, in a non-international armed conflict, would not apply to collateral civilian deaths resulting from an otherwise lawful attack.Kevin Boreham, Lecturer in International Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/577342016-04-18T00:48:34Z2016-04-18T00:48:34ZWorld split on how to regulate ‘killer robots’<figure><img src="https://images.theconversation.com/files/118676/original/image-20160414-4703-3gu3p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">DARPA is developing an autonomous anti-submarine warfare vessel, ACTUV.</span> <span class="attribution"><span class="source">DARPA</span></span></figcaption></figure><p>Diplomats from around the world met in Geneva last week for the United Nations’ third <a href="http://www.unog.ch/80256EE600585943/%28httpPages%29/37D51189AC4FB6E1C1257F4D004CAFB2?OpenDocument">Informal Expert Meeting</a> on lethal autonomous weapons systems (<a href="https://theconversation.com/au/topics/lethal-autonomous-weapons-systems">LAWS</a>), commonly dubbed “killer robots”. </p>
<p>Their aim was to make progress on deciding how, or if, LAWS should be regulated under <a href="https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf">international humanitarian law</a>. </p>
<p>A range of views were expressed at the meeting, from Pakistan being in favour of a full ban, to the UK favouring no new regulation for LAWS, and several positions in between. </p>
<p>Despite the range of views on offer, there was some common ground. </p>
<p>It is generally agreed that LAWS are governed by international humanitarian law. For example, robots cannot ignore the principles of <a href="https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1">distinction between civilians and combatants</a>, or <a href="https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14">proportionality in the scale of attack</a>. </p>
<p>Human commanders would also have command responsibility for their robots, just as they do for their service men and women. Robots cannot be lawfully used to perpetrate genocide, massacres and war crimes.</p>
<p>Beyond that, there are broadly four positions that the various nations took.</p>
<h3>Position 1: Rely on existing laws</h3>
<p>The UK’s position is that existing international humanitarian law is sufficient to regulate emerging technologies in artificial intelligence (<a href="https://theconversation.com/au/topics/artificial-intelligence">AI</a>) and <a href="https://theconversation.com/au/topics/robotics">robotics</a>. </p>
<p>The argument is that international humanitarian law was sufficient to regulate aeroplanes and submarines when they emerged, and it will also cope with many kinds of LAWS too. This would include <a href="http://www.af.mil/AboutUs/FactSheets/Display/tabid/224/Article/104469/mq-1b-predator.aspx">Predator drones</a> with an “ethical governor” – which is software designed to determine whether a strike conforms with the specified rules of engagement and international humanitarian law – or autonomous anti-submarine warfare ships, such as the US Navy’s experimental autonomous <a href="http://www.darpa.mil/program/anti-submarine-warfare-continuous-trail-unmanned-vessel">Sea Hunter</a>.</p>
<h3>Position 2: Ban machine learning</h3>
<p>The French delegation said a ban would be “premature” and that they are open to accepting the legality of an “<a href="https://theconversation.com/we-need-to-keep-humans-in-the-loop-when-robots-fight-wars-53641">off the loop</a>” LAWS with a “human in the wider loop”. This means the machine can select targets and fire autonomously, but humans still set the rules of engagement. </p>
<p>However, they were open to regulating <a href="https://developer.nvidia.com/deep-learning">machine learning</a> in “off the loop” LAWS (which do not yet exist). Thus, they might support a future ban on any self-learning AI – similar to <a href="https://theconversation.com/ai-has-beaten-us-at-go-so-what-next-for-humanity-55945">AlphaGo</a>, which recently beat the human world Go champion – in direct control of missiles without humans in the wider loop. The main concern is that such AIs might be unpredictable.</p>
<h3>Position 3: Ban ‘off the loop’ with a ‘human in the wider loop’</h3>
<p>The Dutch and Swiss delegations suggested “off the loop” systems with a “human in the wider loop” could comply with international humanitarian law, exhibit sufficiently meaningful human control and meet the dictates of the public conscience. </p>
<p>The UK, France and Canada spoke against a ban on such systems. </p>
<p>Advocates of such robotic weapons claim they could be morally superior to human soldiers because they would be more accurate, more precise and less prone to bad decisions caused by panic or revenge. </p>
<p>Opponents argue they could mistarget in cluttered or occluded environments and are morally unacceptable.</p>
<p>For example, the <a href="http://www.stopkillerrobots.org/2016/04/thirdmtg/">Holy See and 13 other nations</a> think a real-time human intervention in the decision to take life is morally required, so there must always be a human in the loop. </p>
<p>This position requires exceptions for already fielded “defensive” weapons such as the <a href="http://www.raytheon.com.au/capabilities/products/phalanx/">Phalanx Close-In Weapon System</a>, and long-accepted “off the loop” weapons such as naval mines, which have existed since the 1860s.</p>
<h3>Position 4: Ban ‘in the loop’ weapons</h3>
<p>Pakistan and Palestine will support any measure broad enough to ban telepiloted drones. However, most nations see this as beyond the scope of the LAWS debate, as humans make the decisions to select and engage targets, even though many agree drones are a human rights disaster.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=429&fit=crop&dpr=1 600w, https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=429&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=429&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=539&fit=crop&dpr=1 754w, https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=539&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/119015/original/image-20160418-11170-1x1084d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=539&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Northrop Grumman X-47A Pegasus drone is being trialed by the US Navy.</span>
<span class="attribution"><span class="source">DARPA</span></span>
</figcaption>
</figure>
<h2>Defining lines in terms of Turing</h2>
<p>Formally, an AI is a <a href="https://theconversation.com/alan-turings-legacy-is-even-bigger-than-we-realise-34735">Turing machine</a> that mechanically applies rules to symbolic inputs to generate outputs.</p>
<p>A ban on machine learning LAWS is a ban on AIs that update their own rule book for making lethal decisions. A ban on “wider loop” LAWS is a ban on AIs with a human-written rule book making lethal decisions. A ban on “in the loop” LAWS is a ban on robots being piloted by humans being used as weapons at all. </p>
<p>Opinions also differ as to whether control of decisions by Turing computation qualify as meaningful or human. </p>
<h2>Next steps</h2>
<p>The Geneva meeting was an informal expert meeting to clarify definitions and gain consensus on what (if anything) might be banned or regulated in a treaty. As such, there were no votes on treaty wording.</p>
<p>The most likely outcome is the setup of a panel of government experts to continue discussions. AI, robotics and LAWS are still being developed. As things stand, the world is at Position 1: relying on existing international humanitarian law. </p>
<p>Provided an AlphaGo in charge of missiles complied with principles like discrimination and proportionality, it would not be clearly illegal, just arguably so.</p><img src="https://counter.theconversation.com/content/57734/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sean Welsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The future of warfare may include many lethal autonomous weapons, but the world can’t decide how, or if, to regulate them.Sean Welsh, Doctoral Candidate in Robot Ethics, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.