The Law of Armed Conflict in Practice: Prima-facie Charges

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The Law of Armed Conflict in Practice
Prima-facie Charges New Defenses

• The charging of Iraqi insurgents with war crimes
  and the defense theories that may be asserted.

J. Justin Boyd Chicago-Kent College of Law
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Timeline

• Charge the Insurgent
• Find positive law
• Make a prima facie case
• Try the Insurgent
• Insurgent defenses to the charges
• Conclusion
• Little bit of policy, why we care

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Charging Insurgents

• 18 USC 2441 - War Crimes Act 1996
• Whoever, whether inside or outside the United
  States, commits a war crimeand the
  circumstances are such that the person
  committing such war crime or the victim of such
  war crime is a member of the Armed Forces of the
  United States or a national of the United States
  shall be subject to fines, imprisonment and/or
  death.
• This gives a District Court personal
  jurisdiction over any war criminal anywhere in
  the world who kills an American.

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Charging Insurgents

• The next question is, what war crime will the
  insurgent be charged with?
• 18 USC 2441 lists war crimes as any conduct
  that is
• defined as a grave breach of the 1949 Geneva
  Conventions
• violation of Common Article 3 of the Geneva
  Conventions
• prohibited by the Hague Convention IV, 1907
• violates the prohibitions against mines and
  booby-traps

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Charging Insurgents

• The Geneva Convention Common Article 3
• During an internal armed conflict, banned conduct
  includes
• Hostage taking
• Murder of civilians
• Grave Breach of the Geneva Conventions
• In any armed conflict
• Murder, torture or inhuman treatment, excessive
  destruction, not justified by military necessity
  and carried out unlawfully and wantonly.

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Charging Insurgents

• So what charge?
• MURDER
• A grave breach of the Geneva Conventions

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Charging Insurgents

• Making the Prima Facie Charge for a War Crime of
  Murder
• Iraqi War is an international armed conflict
  which falls under the umbrella of the Geneva
  Conventions
• A War Crime has been committed
• Murder of civilian contractors and soldiers
• and

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Charging Insurgents

• Prima Facie War Crime of Murder Continued
• The people murdered were US nationals or members
  of the armed forces.
• victim of such war crime is a member of the
  Armed Forces of the United States or a national
  of the United States18 USC 2441
• Both soldiers and civilians, such as reporters
  and contractors.

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Charging Insurgents

• Assuming
• A captured insurgent on trial and there is no
  issue of the killing of an American during an
  armed conflict
• the insurgent must claim that the killing was
  lawful. In this case, privileged under
  international law of war.

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Timeline

• Charge the Insurgent
• Find positive law
• Make a prima facie case
• Try the Insurgent
• Insurgent defenses to the charges
• But first, a little primer on the law of war

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Law of War - Aside

• Jus ad bellum
• Right to make war
• Jus in bello
• Rules for fighting

• In General
• If you are a legitimate combatant, fighting in a
  legitimate armed conflict, then you must follow
  the rules. These rules include the Principle of
  Distinction Proportionality, together these
  limit what you can target and what means you can
  use against targets. Any killing done pursuant
  to these rules is privileged and therefore, not
  the war crime of murder.

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Law of War - Aside

• Principle of Distinction
• The purpose of Distinction is to limit civilian
  casualties during a conflict
• To that end, it protects civilians and other
  noncombatants from being directly targeted
• Civilian casualties collateral to a lawful attack
  may happen

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Law of War - Aside

• Principle of Distinction
• Problem
• This law of war groups all civilians together.
  However, in modern warfare it is hard to
  distinguish between civilians and combatants.
  e.g. Iraq we have civilian contractors, private
  security forces, paramilitary police, the
  insurgents themselves, etc.
• Who is fighting? Who is a civilian?

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Try the Insurgent

• For the insurgent to make a defense
• The insurgent must show that the target selected
  conformed to the principle of distinction or some
  other privilege
• If the killing was privileged, it is not murder
  and therefore not a war crime
• this is where the theories come into play

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Try the Insurgent

• Theories of defense to a war crime murder
  charge
• Principle of Culpability
• Gabriel Swiney - Student, Oxford University
• Brutality Index
• Andrew Strong - Student, Chicago-Kent
• Threat Assessment
• Dean Perritt - Professor of Law, Chicago-Kent

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Try the Insurgent

• Principle of Culpability - Swiney
• This defense theory focuses on the targets
  association with the conflict. (Distinction)
• In general
• It is impermissible to intentionally attack
  civilians or civilian objects unless the target
  voluntarily
• 1. Enters or remains in a contested area or area
  of combat, and
• 2. Performs actions intended to achieve military
  goals of the combatants

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Try the Insurgent

• Principle of Culpability - Swiney
• Policy reasons
• Does not look at civilians as a group.
• Puts people on notice, if they want to stay safe,
  stay away

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Try the Insurgent

• Principle of Culpability - Swiney
• Use in Defense
• The insurgent would have to show that the person
  killed was furthering a military objective in a
  military zone
• e.g. a contractor fixing a communication line
  between a field unit and HQ, or a civilian
  collaborator who discloses insurgent strongholds.

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Try the Insurgent

• Brutality Index - Strong
• Focuses on both the rational for attack and
  acceptable targets.
• In general
• The more brutal the opponent the more legitimate
  targets available.

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Try the Insurgent

• Brutality Index - Strong
• How is brutality measured?
• Sphere of guerrilla violence that is legally
  justifiable should be proportional to
  availability of other means of effecting change
  and brutality of the regime. - Strong
• These other means could consist of things like
  openness of the opponents regime and or
  availability of the political process.
• An empirical measurement created by international
  monitoring bodies

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Try the Insurgent

• Brutality Index - Strong

Regime
Brutality
Available
alternatives to
violence
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Try the Insurgent

• Brutality Index - Strong

Principle of Distinction and Acceptable targets
The more brutal the regime, the more targets are
available. Therefore, an insurgent against a
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Try the Insurgent

• Brutality Index - Strong
• Use in defense
• The insurgent would have to show that
• The current regime was oppressive
• There was no outlet for change to either the
  government or policy
• The target selected was within the sphere of
  acceptable targets, as determined by the
  brutality index

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Try the Insurgent

• Threat Assessment - Perritt
• In general
• The privilege to kill is proportional to the
  threat.

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Try the Insurgent

• Threat Assessment - Perritt
• A more fact sensitive approach
• The realities of modern warfare are such that
  clear distinctions between legitimate and
  non-legitimate targets cannot easily be drawn.
• We must look at who did the killing, what was the
  rationale and how necessary was it.
• Still requires that the insurgent follows
  distinction and proportionality

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Try the Insurgent

• Threat Assessment - Perritt
• Analysis
• First, how dangerous a threat to the insurgent or
  the insurgents operation did the target pose.
• Second, were there any other methods available to
  eliminate the threat. e.g. detention, moving to
  another area.

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Try the Insurgent

• Threat Assessment - Perritt
• Use in defense
• The insurgent would have to show that
• That the target killed was a threat to their
  existence or success
• Killing was the best/only means for eliminating
  the threat.

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Conclusion

• Why not just string em all up?

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Conclusion

• Some Insurgencies should be legitimate, as
  shown by the brutality index. We should
  encourage that type of behavior.

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Conclusion

• But the principle of distinction is too
  restrictive
• Armed Combatants are not the only legitimate
  threat to an insurgency,
• The relative strength of a regime compared to a
  guerrilla force can make regime informants and
  collaborators as deadly as armed combatants -
  Strong

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Conclusion

• If we tell insurgents that all their actions are
  illegal, they will have less incentive to
  restrict their tactics and civilian casualties.

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Conclusion

• So we can encourage good insurgents and still
  allow prosecutors to convict war criminals.