A Radical Reimagining of the Concept of “Attack”

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| Oct 29, 2020

Ntaganda.@ICC-CPI

 

The Office of the Prosecutor (OTP) filed its Appeals Brief In the Case of the Prosecutor v. Bosco Ntaganda on 7 October 2019, almost precisely a year prior to the time of this writing. The Prosecution argument attempts to expand the war crime found in the Rome Statute Article 8(2)(e)(iv) of “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives

According to the Prosecution, as articulated in paragraph 21 of the Appeals Brief, this provision merely requires proof that the perpetrators directed “an act of violence against a protected object, irrespective of whether this conduct occurred in the conduct of hostilities or when the object was under the control of a party to the conflict.” Attacks on cultural property and other protected objects and persons are proscribed and stigmatized during all phases of operations, but not by a monolithic and overly simplistic assertion that any interaction of military forces with such protected persons and places can properly be termed an “attack.”

As startling as the OTP argument might be to experienced practitioners, it derives from their perspective that the concept of “attack” includes an expansive interpretation of acts directed against civilians or protected property (as stated in paragraphs 309 and 408 of the Prosecution Brief at Trial). In the OTP view, all acts of rape, pillage, destroying enemy property, or unlawful transfers of the population constitute “attacks.” The Trial Chamber rejected this creative approach because it represented a radical reimagining of extant humanitarian law (paras 760-761).

To be clear, cultural property has been protected as a matter of positive law since the articulation found in Article 23(g) and 27 of the 1899 Hague Regulations. The traditional law of targeting (known around the world as Hague Law) begins with the military mission and tempers the discretion of war-fighters based upon humanitarian considerations. In contrast, the body of Geneva Law begins with core humanitarian imperatives to be applied in light of the lawful necessities of the military mission. In fact, Articles 8(2)(e)(i) to 8(2(e)(iv) of the Rome Statute instantiate the principle of distinction applicable during non-international armed conflicts. Distinction represents the intransgressible norm that forms the cornerstone of international humanitarian law and is embedded in widespread State practice and international custom.

Targeting principles do not apply at all phases of conflict, nor do they properly encompass all interactions with property that is protected by international humanitarian law or other lex specialis provisions. In this vein, there is no support provided in the Prosecution Brief (paragraph 30) that an expansive reimagining of the word “attacks” is necessary to fulfill the intentions of the Drafters and align Article 8(2)(e)(iv) with the “established framework of international law.” Rather than always applying the law of targeting, the locus of legal analysis should shift to assessment of whether the force in power or control of the location had a valid military necessity to warrant its actions.

The Rome Statute and Drafters’ Intent

Close examination of the Rome Statute and its constituent elements of crimes reveals that the intent of the drafters was to build upon this baseline of State practice rather than obliterate preexisting precepts and replace them whole cloth with sui generis treaty-based constraints.

The concepts of “attack” or “military objective,” or “military necessity” are not defined in the Rome Statute because Article 21 obligates judges and lawyers at the ICC to be guided by broader “principles and rules of international law, including the established principles of the international law of armed conflict.” Article 49, Protocol I defines the concept of ‘attacks’ as used in the law of targeting as “acts of violence against the adversary.” The ICRC Commentary broadens this concept slightly to make clear in paragraph 1882 that the term “attack” “refers simply to the use of armed force to carry out a military operation.”

Military forces around the world shift to a transitional phase upon taking power or possession over protected persons, places, or objects following hostile operations against the enemy. During this consolidation phase, ammunition, food, fuel, and medical supplies are restocked. Trenches are dug in preparation for potential enemy actions. Security must be posted and fields of fire cleared. Such actions comport with the dictates of discipline and centuries of military practice. They are lawful provided that they derive from good faith assessment of military necessity and do not contravene other applicable legal provisions. Neither are they attacks in the ordinary meaning of that term of art because they represent appropriate preparations for further military action. Failure to perform these actions when in power, possession, or control of persons or property would be a critical dereliction of duty for a conscientious commander. By its very semantics, Article 8(2)(e)(iv) is inapplicable to locations where one force has established power or control because they no longer represent valid military objectives.

Moreover, reimagining Article 8(2)(e)(iv), as suggested by the Prosecutor, would necessitate a parallel amendment of the equivalent provision in Article 8(2)(b)(ix) applicable to armed conflicts of an international character, as well as of numerous other aspects of the Rome Statute. Such revision is inadvisable because military operations are complex circumstances that encompass many other phases than attacks only directed against an enemy. To reinterpret the rule is also unnecessary because other provisions of Article 8 of the Rome Statute provide ample protections to cultural property and all other protected property.

Plain Meaning of “Attack” 

Other provisions of law build on the baseline prohibition on deliberate attacks to protect cultural property with tailored precision. No responsible practitioner or commander supports a legal position that would leave cultural property unprotected. The question is not whether cultural property should be expressly protected but, rather, whether an “attack” on cultural property occurs during any interaction of military forces that adversely affects protected property in any manner.

Article 52(3) of Additional Protocol I to the 1949 Geneva Conventions presages the language of 8(2)(e)(iv) by linking the concept of “attack” to military objectives. Similarly, Article 11 of Additional Protocol II (applicable to armed conflicts not of an international character) reflects the limitation of “attack” in the context of healthcare to valid military purposes. Medical units and transports are protected “at all times” unless they are “used to commit hostile acts outside their humanitarian function.” The adversary is entitled to “a reasonable time limit” to respond to warnings prior to any lawful “attack.” Article 54 of Additional Protocol I further states, “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population….” The plain meaning of this language comports with State practice by limiting the concept of “attack” to the context of targeting and governed by the interlocking provisions of Hague Law. Consistent case law reflects this rather commonsense proposition. Acceding to the OTP innovation would denude those words of practical meaning and represent wholesale revision of existing understandings by making the concept of “attack” synonymous with “destroy, remove, or render useless.”

No Lacunae

The Prosecutor can identify no actual lacunae with respect to the protection of cultural property. Their argument rests upon the desire to fundamentally amend the established lex lata in order to “adequately stigmatise, (sic) and potentially to deter, conduct of this grave kind.”

The 1907 Hague Regulations distinguished other facets of military interaction with protected property from the concept of attack under the law of targeting. Article 23(g) reflected the provisions of the 1899 Hague II Convention by restating that parties may not lawfully “destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” The Rome Statute replicated that language in Articles 8(2)(b)(xiii) and 8(2)(e)(xii) (respectively applicable during international and non-international armed conflicts).

Delegates at the ICC Preparatory Commission rejected views suggesting that the Elements of Crimes should incorporate the notion that any seizure of civilian property would be valid only if based on “imperative military necessity.” The Elements of Crimes for the ICC require proof merely that actions undertaken in the context of the armed conflict against protected property were “not required by military necessity.” In this manner, the protections for cultural property and other protected enemy property mirror the requirement found in the Elements of Crimes that “appropriations justified by military necessity cannot constitute the crime of pillaging.” (Articles 8(2)(b)(xvi) applicable to international armed conflicts and 8(2)(e)(v) applicable to armed conflicts not of an international character). There is not a scintilla of evidence in the travaux préparatoires that these offenses altered the preexisting fabric of the laws and customs of war. The Prosecutor’s position would make these provisions redundant.

War Crime v. Crime Against Humanity

Article 8 provides comprehensive criminal prohibitions applicable to all phases of armed conflict. It should not be implemented as a self-standing island isolated from the definitional underpinnings of jus in bello. Its text is a complex commingling of lex lata as implemented in the real world by experienced practitioners and informed by well-established state practice.

The concept of “attack” within Article 8 cannot be coterminous with the concept of “attack” as used in the Crimes Against Humanity context of Article 7. Indeed, the Rome Statute’s framing of the “widespread or systematic attack directed against the civilian population” for the purposes of Crimes Against Humanity is not limited by a required nexus to an armed conflict, but must be undertaken “pursuant to or in furtherance of a state or organizational plan or policy.” The OTP approach to Article 8(2)(e)(iv) confuses “attack” during armed conflict by reference to the far different concept of “attack” as a component of Crimes Against Humanity analysis. By this logic, a heart attack and an attack ad should have identical meanings because they incorporate the same term.

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“Attack” as used in Article 8(2)(e)(iv) means attack. Its practical meaning derives from the commonsense notions drawn from the law of targeting and State practice. By contrast, an “act of hostility” directed against cultural property refers to any act of violence against cultural property either when under the control of an adversary or the party conducting the conflict. “Act of hostility” as that term is used in Article 4(1) of the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Articles 53 of Additional Protocol I and 16 of the Additional Protocol II) is broader than an “attack.” Pillage or seizures absent military necessity constitute theft or unlawful misappropriation and warrant accurate charging decisions.

Protecting cultural and civilian property is an essential aspect of humanitarian law. Provisions crafted for that purpose should not be subsumed by virtue of a wholly new and deleterious definition of “attack.”

The Appeals Chamber heard oral arguments on these matters from 12-14 October 2020, and a decision is expected in the first quarter of 2021.

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Michael A. Newton is Professor of the Practice of Law and Professor of the Practice of Political Science at Vanderbilt University Law School. His observations to the International Criminal Court can be found here. He is also the author of the recent book: The United States Department of Defense Law of War Manual: Commentary and Critique. Additional publications by Mike Newton can be found on SSRN and here.

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