Laws of War

William C. Banks to Discuss “Fighting at the Legal Boundaries” During Georgetown Law Workshop

INSCT Director William C. Banks—an expert on new battlefields, asymmetric warfare, enemy combatants, and other jus in bello issues in modern warfare—will be a discussant at the Georgetown Law Center workshop on “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict.”

The workshop addresses a book by Kenneth Watkin, QC, which offers a holistic approach toward the application of the various constitutive parts of international law and that reviews case studies on how international law addresses insurgents, terrorists, and transnational criminal gangs.

The Nov. 17, 2017, workshop is sponsored by the Georgetown Law Center, Center of the Study of the Legal Profession at Georgetown Law, and Human Rights First.

Workshop Commentators are:

  • Geoffrey Corn, Presidential Research Professor of Law, South Texas College of Law
  • Laura Dickinson, Oswald Symister Colclough Research Professor of Law, George Washington University Law School
  • Noam Lubell, Professor, School of Law, University of Essex
  • Marko Milanovic, Associate Professor in Law, University of Nottingham
  • Tom Ruys, Professor, Department of European, Public, and International Law, University of Ghent
  • Rachel Van Landingham, Associate Professor, Southwestern University School of Law

Workshop Discussants are:

  • Ken Watkin, author, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict
  • William C. Banks, Director, INSCT
  • Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School
  • Audrey Kurth Cronin, Professor, American University School of International Service
  • Janina Dill, University of Oxford
  • Charles Dunlap Jr., Executive Director, Center on Law, Ethics and National Security, Duke University
  • Josh Geltzer, Executive Director, Institute for Constitutional Advocacy and Protection, Georgetown Law
  • CPT Todd Huntley, Judge Advocate General’s Legal Center and School, Charlottesville, VA
  • Richard Jackson, Adjunct Professor, Georgetown University Law Center
  • Marty Lederman, Associate Professor, Georgetown Law Center
  • Dan Mahanty, Senior Adviser, Center for Civilians in Conflict
  • Jens David Ohlin, Vice Dean and Professor of Law, Cornell Law School
  • Deborah Pearlstein, Professor, Cardozo School of Law
  • Stephen Pomper, former Special Assistant to the President and Senior Director for African Affairs, Multilateral Affairs, and Human Rights, National Security Council
  • Charles Sabga, Acting Deputy, New York Delegation, International Committee of the Red Cross
  • Gary Solis, Adjunct Professor, Georgetown Law Center
  • Emily Spencer, Director, Education and Research Centre, Canadian Special Operations Forces Command
  • Jane Stromseth, Professor of Law, Georgetown Law Center

Moderators are:

  • Mitt Regan, McDevitt Professor of Jurisprudence, Georgetown Law Center
  • Rita Siemion, International Legal Counsel, Human Rights First
  • Heather Brandon, Advocacy Counsel, National Security, Human Rights First

“Living Proof”: Syrian Accountability Project Publishes White Paper on the Yazidi Genocide

Yazidi Genocide CoverCrimes committed against civilians during war can be especially heinous, but when those crimes are committed with planned intent to destroy an ethnic or religious community, international law applies the unique label of “genocide.” It is not a charge used lightly by the international community, although in recent times it has been applied to crimes committed during the Bosnian War (1992-1995) and Rwandan Civil War (1994).

“Narratives about sexual violence as a war crime are difficult to collect, and whole villages have disappeared, so those people cannot tell their stories.”

Now, a white paper published by the Syracuse University College of Law-based Syrian Accountability Project (SAP) asserts that war crimes and crimes against humanity committed in 2014 against the Yazidi community by the Islamic State in Iraq and Syria (ISIS) also should be considered genocide. The report documents crimes perpetrated against the Yazidi community and calls on the international community to take “proper care of the living proof” of the Yazidi genocide and to begin the “strategic preservation” of forensic evidence that could be used in an international court.

As with past SAP special reports, the “Report on the Yazidi Genocide: Mapping Atrocity in Iraq and Syria” draws on the project’s six-year-long effort to document war crimes and crimes against humanity committed by all sides during the Syrian Civil War and associated conflicts. Working with open-source materials from available media and contacts within the region, SAP students are responsible for maintaining the project’s two main deliverables, the Conflict Narrative and the Crime Base Matrix. The former is a legally relevant historical narrative of the conflict, while the matrix’s intent is to provide case facts of representative crimes (as well as the relevant international or national legal standard for each crime) to guide a future prosecution team. In this way, SAP both advocates on behalf of victims and provides legal analysis to aid in the eventual administration of postconflict justice.

The “Report on the Yazidi Genocide” has been sent to SAP’s international clients, including the International Criminal Court, the United Nations, the US Congress, and leading human rights organizations. The report also joins related documents requested of SAP by London-based law firm Doughty Street Chambers and barrister Amal Clooney, who acts as legal counsel to Yazidi victims of ISIS’ crimes and to Yazda, a non-governmental organization that supports the Yazidi community. 

“The Syrian Accountability Project has become a relied-upon legal investigatory tool for the delivery of justice for the people of Syria and the Levant,” says Syracuse University College of Law Professor of Practice David M. Crane, who supervises the project. “The capacity of a College of Law student with a focused, properly supervised plan is unlimited.”

The Yazidis—an ethno-religious group of between 500,000 and 1.2 million people living primarily in Northern Iraq—are Kurdish-speaking and follow their own syncretic religion that combines aspects of Zoroastrianism, Islam, Christianity, and Judaism. The “Report on the Yazidi Genocide” alleges that, beginning in summer 2014, the group was targeted by ISIS and its campaign to “purify” the region of non-Islamist influences. The report details what it calls “grim incidences” of “incomparable brutality” during this campaign. More than 2,800 Yazidis were killed in this short time; 4,600 community members were abducted; 1,950 children were victimized; and towns and villages were blockaded or emptied of their residents. Women were kidnapped, raped, forced to abort fetuses, and sold into sexual slavery, while in a particularly abhorrent episode in August 2014, many children died of exposure on Mount Sinjar, where up to 50,000 Yazidis were seeking refuge.

“This has been a harder project to track than crimes committed in Syria during the civil war,” says SAP Executive Director and third-year law student Joseph Railey. “Narratives about sexual violence as a war crime are difficult to collect, and whole villages have disappeared, so those people cannot tell their stories. Nevertheless, this white paper helps clarify for our clients what kinds of information the Syrian Accountability Project has recorded beyond the case facts stemming specifically from the Syrian Civil War.”

While the report cross-references individual representative crimes with the articles of the Geneva Conventions, Rome Statute, and/or Iraqi Penal Code that they violate, it is the systematic nature of the crimes, along with ISIS’ stated intent to convert Yazidis to Islam, that raises the atrocities collectively to genocide. “The stories underlying these crimes provide the evidentiary support necessary to demonstrate that ISIS executed a systemic plan to destroy, in whole or in part, the Yazidi people,” the report states. “ISIS soldiers regularly demonstrated a specific intent to destroy the Yazidi people through their ideology and unabashed assertions for eliminating the Yazidi community.”

The report recognizes that many of the circumstantial evidence and news reports that SAP has collected are not legally sufficient to support a declaration of genocide, but it hopes that publishing these narratives will spur the international community to make an effort to preserve physical evidence of crimes. “Bringing ISIS to justice for genocide against the Yazidi community, at the domestic or the international level, will depend on the strategic preservation of forensic evidence,” the report concludes.

“What we are asking is that more recording of actual criminal evidence be done by the international community,” asserts Railey. “We are essentially saying, what happened was horrific, yet few people are talking about it. So we want to help draw people’s attention to the Yazidi situation and start a dialogue about what can be done.”

See also: “UN: Islamic State Atrocities in Mosul Need International Justice” (Voice of America/Reuters, Nov. 2, 2017)

Cyber Attribution & War: William C. Banks Presents at West Point Emerging Technology Conference

From October 25 to 27, 2017, INSCT Director William C. Banks took part in the “Impact of Emerging Technology on the Law of Armed Conflict” conference at the US Military Academy at West Point. Hosted by the Leiber Institute for Law and Land Warfare at the West Point Center for the Rule of Law, the hosts described the topic of emerging technologies on the battlefield as a “complex and dynamic field” within the law of armed conflict (LOAC).

Professor Banks discussed “Cyber Attribution and In Bello Compliance During an Armed Conflict.” He spoke on the “Distinction, Marking, and Attribution” panel with COL Mike Meier, of the Judge Advocate General’s Corps, and LTC Mark Visger, of USMA-West Point (moderator).

Also speaking at the event were Professor Laurie Blank of the Emory University International Humanitarian Law Clinic; COL Geoffrey Corn, Staff Judge Advocate, US Cyber Command; Professor Peter Margulies, Yale Law; and Professor Michael N. Schmitt, USMA-West Point.

Other topics discussed at the conference included “not-yet-emerged” weapons technologies; how technology “distorts” the nature of conflict; distinction, emerging technologies, and civilians/combatants on the battlefield; concealed cyber operations; perfidy and invisible technologies; and artificial intelligence at war.


WaPo Interviews William C. Banks About Alleged US ISIS Fighter

Case of Suspected American ISIS Fighter Captured in Syria Vexes US

(The Washington Post | Oct. 29, 2017) Justice Department officials don’t believe they have enough evidence to charge an American citizen and suspected member of the Islamic State who was captured in Syria last month, but the United States will face immediate legal challenges if he is not released and is detained without trial.

“It’s time now to wonder whether the Trump administration is thinking of doing something different.”

The issue threatens to reignite court battles fought during the George W. Bush administration when the Supreme Court ruled that U.S. citizens cannot be held indefinitely as members of al-Qaeda or other terrorist groups under war legislation Congress passed after the Sept. 11, 2001, attacks. The court ruled that they are entitled to counsel and the right to challenge the evidence against them before a neutral arbitrator.

Nearly seven weeks ago, on Sept. 12, the man apparently surrendered to a rebel group in Syria, which handed him over to U.S. forces, according to officials familiar with his case. Since then, his name, age and other personal details, including a second country of citizenship, have been withheld, even from U.S. lawyers seeking to represent him. He is being held in a Defense Department “short-term facility” in Iraq, according to the Pentagon …

Removing the likelihood of a trial in the United States leaves the government with few options, said William Banks, a professor of public administration and international affairs at Syracuse University. “It’s time now to wonder whether the Trump administration is thinking of doing something different,” he said.

Banks and other national security analysts said the United States could negotiate with the man’s family and country of second citizenship to accept his return under conditions that he be monitored and not be allowed to travel.

Such deals have been struck in the past when, for instance, prisoners at Guantanamo Bay have been transferred home …

Read the complete article here.


“A Sea-Change of New Issues”: The Jerusalem Post Reviews 10 Years of New Battlefields/Old Laws


(The Jerusalem Post | Sept. 14, 2017) Though children have always had a protected status in war, armed ISIS children can be targeted under the laws of armed conflict, IDC Herzliya Professor Daphne Richemond-Barak told the Jerusalem Post on Wednesday.

“If children are holding a gun then direct participation in hostilities rules apply to children… children might be targets and not just victims,” she said.

Richemond-Barak and Syracuse Professor William Banks spoke to the Post in the midst of the International Institute of Counterterrorism Conference in Herzliya, discussing a range of new battlefield and law issues ranging from subterranean warfare to new standards for targeted killings.

The premise of Richemond-Barak’s comments about armed children as targets is that until ISIS started to use children on a mass scale, the issue of Western countries going up against large numbers of children simply had not come up.

That meant that children were victims and protected from targeting as a given.

ISIS’s new tactic of arming children on a mass scale changed that paradigm and required taking a new look at the “new battlefield” and how to apply the laws of war.

Regarding the sea-change of new issues confronting military lawyers on the battlefield, Banks noted that his university and ICT started to work on new solutions to these issues dating back to 2006.

Banks said, “During the 2006 Lebanon War we were here on the IDC campus… mulling over what was happening. It was clear from the circumstances that the framework we had been using in the West and in Israel was ineffective because the fighting was of a new kind.”

He said that currently many Western adversaries “do not use uniforms, use unconventional tactics, unconventional weapons, are failing to follow the laws of war, are hiding in civilian neighborhoods and are [using human] shielding.”

The Syracuse professor said that the legal framework needed to be updated to deal with new challenges posed by non-state actors abusing the laws of war, while remaining committed to principles like “the rule of law, protecting civilians and treating all combatants with dignity according to the laws of war.”

Richemond-Barak added that in 10 years of conferences, their group of US, Israeli and other legal scholars have “always tried to invite a mix of military officials… to get them in with the lawyers because the dialogue is so important, the conversation between lawyers and non-lawyers… we need to impact policy decisions at the operational level.”

Further, she said, “it is important that” many of the meetings “take place in Israel” since Israel is the frontlines where so many new issues arise.

Addressing another new issue, Banks said that the US and Israel were revealing far more information about what intelligence and other issues led to attacks which ultimately led to harming civilians, even if the harm to civilians was unintentional.

One example was the 2015 mistaken US attack on a hospital in Kunduz, Afghanistan which killed 42 innocent civilians. Banks complimented the US for unprecedented disclosure of how the mistaken attack had occurred and on its disciplining of over a dozen military personnel.

However, human rights groups criticized the US for not fully disclosing how and why its intelligence failed and for not criminally prosecuting the soldiers involved …

Read the whole article here.

Journalism & International Justice: David M. Crane Chautauqua Lecture Now Online

(July 18, 2017) “Journalism and International Justice” with David M. Crane, Syracuse University College of Law and former Chief Prosecutor of the Special Court of Sierra Leone, and Brian Rooney, journalist and winner of four Emmy Awards and two Edward R. Murrow Awards.

This recording is part of the Center for the Study of Art, Architecture, History & Nature (C-SAAHN) and Chautauqua Archives Heritage Lecture Series 2017.

New Battlefields/Old Laws to Celebrate a Decade of Cutting-Edge Scholarship at World Summit on Counter-Terrorism

At this year’s World Summit on Counter-Terrorism—Sept. 11-14, 2017, in Herzliya, Israel—INSCT will convene its 10th New Battlefields/Old Laws (NBOL) workshop. One of INSCT’s signature projects, NBOL has grown since 2007 into a wide-ranging series of workshops and publications that reexamine the application of centuries-old customs and laws of armed conflict in the age of asymmetric warfare. 

“I look forward to both a celebration and a compelling workshop in Herzliya, Israel, as NBOL continues to illuminate a path for legal scholars navigating the complex laws of armed conflict.”

Co-chaired by INSCT Director William C. Banks, the theme of this year’s New Battlefields/Old Laws 10th Anniversary Workshop is “Crisis Management in Times of Transition.” It will be a key event at the Institute for Counter-Terrorism’s (ICT) World Summit, one of the world’s largest and most influential national and international security events. ICT’s Senior Researcher and Head of its International Humanitarian Law Desk Dr. Daphné Richemond-Barak will co-chair the workshop. Discussants will be Dr. Amnon Cavari, Assistant Professor, Lauder School of Government, Interdisciplinary Center, Herzilya, Israel; Dr. Katja Samuel, Co-Chair of Disaster Law, American Society of International Law; and Dr. Dana Wolf, Senior Researcher, ICT.

Says Banks, “In September 2017, I look forward to both a celebration and a compelling workshop in Herzliya, Israel, as NBOL continues to illuminate a path for legal scholars navigating the complex laws of armed conflict.”

NBOL began with an inaugural symposium in Washington, DC—hosted by NPR’s Robert Siegel—to commemorate the 100th anniversary of The Hague Convention of 1907. International legal scholars agreed that after 100 years, a re-examination of the laws of armed conflict and of international humanitarian law was a pressing requirement. Numerous modern conflicts—in Afghanistan, Iraq, Yemen, Syria, Somalia, Colombia, Sri Lanka, Myanmar, and elsewhere—underscore the shortcomings of international law’s response to asymmetric warfare. This term refers to conflicts in which the standing, regular army of a nation state is pitted against insurgent, irregular combatants, who often don’t wear uniforms, blend in with civilian communities, use terror tactics, and don’t recognize international treaties. 

The insurgent, terrorist tendencies of modern insurgents present significant strategic and tactical challenges for states and citizens. Neither The Hague Rules of 1907—the “customary laws of war”—nor post-1949 laws of armed conflict and accompanying international humanitarian laws account for non-state groups waging prolonged asymmetric campaigns within civilian populations and across international borders. Nation states lack guidance in shaping the parameters of their response and are often left with little choice but to respond in ways that inflict heavy civilian casualties. The result is that a defending state is often criticized for violating norms that do not accommodate the asymmetric conflict.

To address these shortcoming, over the past decade NBOL has addressed such sub-topics as counterinsurgency operations; foreign terrorist fighters; “legal triggers” of war on new battlefields; how the customary laws are “operationalized” on modern battlefields; and the duties of states engaged in conflict with non-state actors.

Numerous international and human rights thought-leaders have served as discussants over the years, including renowned human rights scholar Boaz Ganor; military law expert Geoffrey Corn; Anton Camen of the International Committee of the Red Cross; national security scholars Laurie Blank and Jennifer Daskal; and David Scharia, Senior Legal Officer of the UN Security Council Counter-Terrorism Committee Executive Directorate.  In addition, scholarship arising from the workshops has led to two books, both edited by Banks: New Battlefields/Old Laws: Critical Debates from the Hague Convention to Asymmetric Warfare (Columbia, 2011) and Counterinsurgency Law: New Directions in Asymmetric Warfare (Oxford, 2013).

This year, NBOL will examine how the laws of armed conflict and humanitarian law impacts peace time crises. “The battlefield has grown geographically broader in recent years, with conflicts spilling over national boundaries. At the same time, the distinction between peace and war has eroded. Terrorism, in particular, features in both peace and war under quite similar forms,” explains Banks. “Moreover, national security crises, public health emergencies, natural disasters, and financial crises are becoming conflict trigger issues not that different from those encountered in times of war. This workshop will look at the reasons for this change, the extent of crisis management by various actors, and the crises’ local and global repercussions. Questions of authority, legitimacy, and decision-making in times of governmental transitions also will be examined.”

A Step Backward: The Closure of the Office of Global Criminal Justice

By David M. Crane

(Re-published from The Jurist | July 21, 2017) With the raspy barking of a US President in the background trying to “Make America Great Again,” the world shrinks away in surprise and confusion. As the light begins to wane on that bright and shining experiment on the hill called “America”, the international community faces the yawning maw of a retrenching America, once again looking inward, shrinking away from a leadership position it has held since World War II. Unprepared for any of this, the West is losing its way uncertain and weakened. They look for any indication of someone to lead.

“The United States has always been at the forefront in creating justice mechanisms.”

It will not be America. From the environment to trade, the US has chosen to step away from not only legal but also moral obligations. This past week another indication of further retrenchment was manifest when US Secretary of State Rex Tillerson announced that he was closing the Office of Global Criminal Justice (OGCJ), the office where the US asserts leadership and support for international justice and holding accountable those who feed upon their own citizens. Like much else this new US administration has done, this is wrong!

The United States has been the cornerstone for the creation of modern international criminal law. It played the leading role at the International Criminal Tribunal at Nuremberg in 1945, the subsequent Council 10 trials, up to and including the establishment of the tribunals and courts for Yugoslavia, Rwanda, Sierra Leone, and Cambodia, as well as the International Criminal Court. BUT FOR the support of the United States, most of these justice mechanisms would not have come into existence or would have had existential and overwhelming challenges at the beginning. The United States has always been at the forefront in creating justice mechanisms.

Past administrations have had policy differences with the world community on the administration of international justice, but, at the end of the day, they did not waiver in the perception that the rule of law is important for a more stable world. This administration, a newly forming kleptocracy, is facing the rule of law with almost a blatant disregard, certainly a jaw-dropping disrespect not seen in the history of the republic. Ruefully, commentators have said that in Washington “nothing matters” …

To read the full article, click here.


“Journalism & International Justice”: David M. Crane Lectures at Chautauqua

(The Chautauquan Daily | July 17, 2017) In 2013, Charles Taylor, the former president of the West African nation Liberia, was convicted and sentenced to 50 years in prison for war crimes and crimes against humanity for subjecting the people of Sierra Leone to murder, mutilation, rape and sexual slavery. Estimates vary, but it is believed that more than 50,000 people were killed, several hundred thousand were maimed or wounded and 2.5 million were displaced in a nation of 6 million during 11 years of conflict.

“If they call me tomorrow, I could prosecute Assad.”

Taylor is the only sitting head of state ever to be convicted on such charges, according to David M. Crane, the chief prosecutor in the case. He was appointed by Kofi Annan, then-secretary general of the United Nations, at the recommendation of the Security Council, to create and manage the independent Special Court for Sierra Leone. Besides Taylor, the leaders of three other factions in the war were also convicted of war crimes, including the widespread forced conscription of children as fighters.

Why was Crane chosen?

“That’s the $25 question,” he said. “(Former U.S. secretary of state) Colin Powell told me that I had a reputation for creating new organizations and driving them forward toward success.”

At 3:30 p.m. [on July 18, 2017] in the Hall of Philosophy, Crane will discuss his work and address the theme “Journalism & International Justice” as part of the Oliver Archives Heritage Lecture Series. He will be joined by the television and newspaper journalist Brian Rooney, the winner of four Emmy and two Edward R. Murrow awards. A renowned expert in international criminal law and a professor of that subject at Syracuse University’s law school, Crane said he chose the topic because of “the role of the press in bringing atrocities to light. Without the press, politicians would just cover them up.”

While Taylor is the only head of state to be tried and convicted by an international tribunal, Crane — along many other human rights advocates and legal scholars — hopes he will not be the last. Crane created and has headed the Syrian Accountability Project at Syracuse University since the beginning of the civil war in Syria in 2011. The group has built a huge database and index matrix cataloguing war crimes and crimes against humanity perpetrated by Syria’s president, Bashar al-Assad and the leaders of 13 fighting factions. The group, which has verified 8,000 pages of individual war-crime incidents, has been praised by the U.S. Congress and the United Nations for its work, and could be called upon to assist in any potential tribunal.

“If they call me tomorrow, I could prosecute Assad,” said Crane, who served in the U.S. military and worked for 30 years on national security issues and policy for the Department of Defense and congressional intelligence committees …

Read the full article here …

International prosecutor David M. Crane to discuss media and war crimes

“Armed Conflict and Compliance in Muslim States” with Corri Zoli Now Online

Although many empirical studies have explored state conflict behavior by a range of factors, relatively few studies have examined the conflict behavior of Muslim-majority states. Even less research systematically examined the role of state compliance with international humanitarian law as a variable in such conflict behavior.

This work builds a new dataset based on an international humanitarian law definition of war, and provides an overview of modern armed conflict behavior and compliance with international law governing armed conflict for Muslim states from 1947-2014.

PARCC Conversations in Conflict Studies 2017.