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

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 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

Charging Insurgents 18 USC § War Crimes Act 1996 “ Whoever, whether inside or outside the United States, commits a war crime … [and 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. 18 USC § War Crimes Act 1996 “ Whoever, whether inside or outside the United States, commits a war crime … [and 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.

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 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

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. 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.

Charging Insurgents So what charge…? MURDER A grave breach of the Geneva Conventions So what charge…? MURDER A grave breach of the Geneva Conventions

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 … 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 …

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 States …” 18 USC § 2441 Both soldiers and civilians, such as reporters and contractors. 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 States …” 18 USC § 2441 Both soldiers and civilians, such as reporters and contractors.

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. 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.

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… 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…

Law of War - Aside Jus ad bellum Right to make war Jus in bello Rules for fighting 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.

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 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

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? 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?

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… 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…

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 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

Try the Insurgent “Principle of Culpability” - Swiney This defense theory focuses on the target’s 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 “Principle of Culpability” - Swiney This defense theory focuses on the target’s 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

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 “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

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. “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.

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. “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.

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 opponent’s regime and or availability of the political process. An empirical measurement created by international monitoring bodies “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 opponent’s regime and or availability of the political process. An empirical measurement created by international monitoring bodies

Try the Insurgent “Brutality Index” - Strong Regime Brutality Available alternatives to violence

Try the Insurgent “Brutality Index” - Strong Group C: Illegal targ (Innocent bystanders Uninvolved civilians etc.) Group B : Ambiguous targets (Collaborators, informants, sympathizers) Group A : Clearly legal targets. (soldiers, spies, para-military, etc.) Principle of Distinction and Acceptable targets: The more brutal the regime, the more targets are available. Therefore, an insurgent against a brutal regime could attack group B.

Try the Insurgent “Brutality Index” - Strong Use in defense: The insurgent would have to show that: 1.The current regime was oppressive 2.There was no outlet for change to either the government or policy 3.The target selected was within the sphere of acceptable targets, as determined by the brutality index “Brutality Index” - Strong Use in defense: The insurgent would have to show that: 1.The current regime was oppressive 2.There was no outlet for change to either the government or policy 3.The target selected was within the sphere of acceptable targets, as determined by the brutality index

Try the Insurgent “Threat Assessment” - Perritt In general… The privilege to kill is proportional to the threat. “Threat Assessment” - Perritt In general… The privilege to kill is proportional to the threat.

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 “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

Try the Insurgent “Threat Assessment” - Perritt Analysis: First, how dangerous a threat to the insurgent or the insurgent’s operation did the target pose. Second, were there any other methods available to eliminate the threat. e.g. detention, moving to another area. “Threat Assessment” - Perritt Analysis: First, how dangerous a threat to the insurgent or the insurgent’s operation did the target pose. Second, were there any other methods available to eliminate the threat. e.g. detention, moving to another area.

Try the Insurgent “Threat Assessment” - Perritt Use in defense: The insurgent would have to show that: 1.That the target killed was a threat to their existence or success 2.Killing was the best/only means for eliminating the threat. “Threat Assessment” - Perritt Use in defense: The insurgent would have to show that: 1.That the target killed was a threat to their existence or success 2.Killing was the best/only means for eliminating the threat.

Conclusion Why not just string ‘em all up?

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

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 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

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

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