Written by Lina Laurinaviciute
“Wars between states are confined to geographical areas and have a declared set of combatants, but terrorism can be conducted with relative ease across many national borders.”[1] Continue reading
Tag Archives: Lina Laurinaviciute
Humanity Hanging on a Cross of Iron: the Arms Trade Treaty Towards Reducing Human Suffering
Written by Lina Laurinaviciute
Setting the Scene
The famous Doctor Who once made a splendid remark on the issue of weapons: “You want weapons? […] Books are the best weapon in the world. […] Arm yourself!”[1] Unfortunately, in a real world, the wide availability of different kind weapons and ammunition has led to human suffering, political repression, crime and terror among civilian populations. The flows of arms in all parts of the world can be sourced through diversion from State stockpiles and other legal circuits, recycling from previous conflicts in the concerned State or in the neighbouring countries, State-sponsored supplies to proxies, strategic caches of arms stored in anticipation of conflict, illegal manufacturing and other means.[2]
Irresponsible transfers of conventional weapons[3] destabilize security in a region, enable the violation of the United Nations Security Council (hereinafter – UNSC) arms embargoes and contribute to human rights abuses. Consequently, in countries experiencing conflict and high levels of violence investment is discouraged and hence development is disrupted.[4] It is evident that, the widespread availability of weapons tends to prolong conflicts, facilitate violations of international humanitarian law (also known as law of war or law of armed conflict), and put civilians at high risk of death or injury from weapons-related violence even after armed conflicts have ended.[5]
On 2 April 2013, the UN General Assembly has witnessed an event, to which the Secretary-General Ban Ki-moon referred as “a victory for the world’s people.”[6] The UN Member-states voted by 154 votes to three, with 23 abstentions (including Russia and China, which are among the world’s biggest exporters[7]), to control a trade worth between $170 million and $320 million per year.[8] As a consequence, the poorly regulated arms trade has devastating, multifaceted effects. These include fueling violence and armed conflict, hindering efforts to promote socioeconomic development and creating a permanent atmosphere of fear and instability in conflict settings.[9]
Therefore, the Article 2 of the newly adopted Arms Trade Treaty (hereinafter – ATT) sets its scope to regulate the international trade in conventional arms, from small arms to battle tanks. Namely it is applied to: battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons.
The treaty prohibits states from exporting conventional weapons in violation of arms embargoes, or weapons that would be used for acts of genocide, crimes against humanity, war crimes or terrorism. It also requires states to prevent conventional weapons reaching the black market. Thus it is expected that it will put a stop to destabilizing arms flows from its signatories to conflict regions. It will prevent human rights abusers and violators of the law of war from being supplied with arms. And it will help keep warlords, pirates, and gangs from acquiring these deadly tools.[10]
Indeed, the majority of modern day intra-State conflicts have been fought mainly with small arms and light weapons. However, recent events in Libya and Syria underscore the continued misuse of heavier conventional weapons – including tanks, heavy artillery, helicopters and aircraft – against civilians. Although it is often difficult to anticipate that a government will eventually use its weaponry against civilian populations, it is expected that the ATT will compel exporters to exercise enhanced diligence in analysing early warning signs that may help them assess the risk that transferred weapons would be used to commit grave human rights violations.[11]
Indeed, the use of explosive weapons in populated areas, including man-portable or vehicle-mounted grenades, rocket-propelled grenade launchers, missiles and mortars, can have indiscriminate and devastating impact on civilians, particularly children.[12] For instance, in Yemen, 71 percent of the child conflict casualties in 2009 were a direct result of shelling of civilian areas by all parties to the conflict.[13]
Moreover, the high availability of small arms and the presence of armed violence create threats to humanitarian personnel and can force humanitarian organizations to evacuate their staff from high-risk areas or suspend their programmes, thus depriving affected people of badly needed assistance.[14] For example, in Pakistan, humanitarian actors indicate ongoing hostilities as the most significant impediment to access.[15] Also, the Lord’s Resistance Army since 2009 has carried out armed attacks, including against refugee settlements, in South Sudan, Central African Republic and in the Democratic Republic of Congo during which scores of civilians were killed, thousands of civilians were forced to flee, serious disruptions to the distribution of humanitarian assistance was evident as well.[16]
Beyond fueling armed conflicts, the availability of firearms due to the poorly regulated arms transfers is a major factor sustaining organized crime and terrorism in all regions. The recent events in Libya, for example, presented an opportunity for various criminal and terrorist groups to procure firearms and ammunitions from looted government stockpiles. While Somali pirates reportedly received about US$170 million in ransom in 2011 for hijacked vessels and crews. It is important to mention, that piracy and armed robbery against ships affect the freedom of shipping and the safety of vital shipping lanes, carrying around 90 percent of the world trade.[17]
There is also a specific relationship between firearm availability and high levels of homicide. It is estimated that 42 percent of the overall global homicides are committed with firearms. This percentage is considerably higher in regions where homicides are often associated with the illicit activities of organized criminal groups. In some regions, misuse and illicit trafficking of firearms and their ammunition is often associated with other crimes, in particular drug trafficking. In these situations, the ability of security institutions, such as the police and the military, to enforce the law is greatly diminished in the face of the power of well-armed organized crime groups with ready access to arms in the black market, thus undermining the social fabric of entire communities.[18]
In this regard, Africa, Latin America and the Caribbean are the three most affected regions in the world by both arms trafficking and small arms misuse, and share similar challenges fighting against the illicit arms circulation. Interestingly, “the studies on seized arms reveal the use of a variety of arms in street and organized crime. For example, handguns are the preferred weapon used in the commission of most street crime, while military-style arms are used by organized criminals, such as by the drug cartels in Mexico and in the favelas in Brazil.”[19]
The problem of a poorly regulated arms trade was well noted by the UN, which stated that: “the absence of a global framework regulating the international trade in all conventional arms has obscured transparency, comparability and accountability.”[20] However, it took almost a decade to agree on principles to control the flow of such arms.
The Birth of the Treaty
Unlike trade in chemical, biological and nuclear weapons, trade in conventional weapons was not regulated in a comprehensive treaty at the international level.[21] The initiative on the current principles of the ATT have been started by Dr. Oscar Arias who in 1995, led a group of fellow Nobel Peace Prize Laureates in announcing their support for the international regulation of the trade in conventional arms. Of the many advocacy initiatives undertaken in support of the ATT, the “Million Faces Petition” of the Control Arms campaign gained the greatest international attention. The Petition, which comprised individual portraits as expressions of support, was formally submitted to UN Secretary General Kofi Annan in June 2006.[22]
After some months, the process within the UN system began with General Assembly Resolution 61/89 of December 2006 entitled “Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms”.[23] In this resolution, the General Assembly requested countries to submit their views on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument on the import, export and transfer of conventional arms. Following those views, the General Assembly adopted a second resolution on an ATT (Resolution 63/240) in 2008. In this resolution the UN General Assembly decided to establish an open ended working group, which would be open to all states, to further consider the possible elements of the future agreement on the arms trade.[24]
A year after, in 2009, the UN General Assembly adopted Resolution 64/48 in which UN member states decided to convene a UN conference on an Arms Trade Treaty in 2012 with the scope “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms”[25]. Importantly, under the US administration of President Barack Obama, the US changed its position and after voting against the ATT in 2006 and 2008, it finally supported this process. Undoubtedly, this support was conditional on success of the future negotiations as well as for the agreement being reached in consensus.[26]
After years of advocacy for a worldwide ATT and four intensive weeks of diplomatic bargaining, in July 2012 the UN convened a conference to negotiate a legally binding arms trade treaty. Unfortunately, the final negotiation round did not result in an agreement to which all 193 countries of the UN could commit. At the end of the negotiations, the US blocked an agreement by declaring that it needed more time to reach a consensus. Russia, North Korea, Cuba and Venezuela supported this position. It was mutually agreed, however, that: “Arms export controls can only be effective if implemented at the global level, in a coherent and consistent manner”[27] as the “poorly regulated trade in conventional arms and ammunition fuels conflict, poverty and human rights abuses all over the world”[28]. Therefore, it was decided to continue negotiations at the next years (2013) conference with a view to concluding the ATT. Finally, the treaty was adopted in April, 2013.
A Glance Inside the Treaty
The preamble of the treaty recognizes “that civilians, particularly women and children, account for the vast majority of those affected by armed conflict and armed violence”[29] and “the challenges faced by victims of armed conflict and their need for an adequate care, rehabilitation and social and economic inclusion.”[30] The treaty also recalls that States Parties to the treaty are determined to act in accordance with the duty to ensure respect to IHL.”[31] One of the purposes of the treaty is to reduce human suffering by establishing the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms.[32] To reach these goals, the treaty sets forth the principles of sovereignty and non-intervention, transparency and universality.
As mentioned before, the Article 2 of the treaty sets out the scope of conventional arms to which the treaty shall apply. It explicitly refers to the seven major categories of conventional arms already included in the UN Register of Conventional Arms, plus small arms[33] and light weapons[34]. Ammunition, munitions, and parts and components for these conventional arms are also covered in Articles 3 and 4.
Article 2 also includes activities to which the treaty shall apply: These are “activities of the international trade” that comprise export, import, transit, trans-shipment, and brokering. Particularly, it aims to prevent and suppress illicit production, trafficking and illicit brokering of conventional arms.
However, the ATT “does not aim to impede or interfere with the lawful ownership and use of weapons.”[35] According to the ATT, Governments remain primarily responsible for keeping to the rule of law. However, before approving the transfers of weapons or ammunition, States Parties to the ATT are required to assess the risk that transferred arms would be used by national armed and security forces, private security companies or other armed State or non-State actors to foment regional instability, to commit grave violations of international humanitarian law and human rights law (e.g. genocide, crimes against humanity, war crimes) or to engage in other forms of politically or criminally motivated armed violence (e.g. terrorism; transnational organised crime, corruption). The common standards should also help States to assess the risk that transferred arms will end up in areas proscribed by UNSC embargoes.[36]
Moreover, States Parties must establish and maintain a national control system, including a national control list of weapons and items covered. They must also maintain national records of export authorizations or actual exports, and report on their implementation of the treaty as well as authorized or actual exports and imports of conventional arms (but not ammunition or parts and components).[37]
The treaty will open for signature on June 3, 2013 at UN headquarters in New York. It will enter into force 90 days following the 50th ratification, acceptance, or approval with the Depositary.[38] Despite the poor monitoring mechanism (the Conference of States parties has a function to review implementation, and consider amendments and issues relating to the treaty interpretation) “the text now has to be implemented in good faith so as to positively affect the lives, health and well-being of millions of people around the world. If properly implemented, it will prevent arms transfers when there is a manifest risk that war crimes or serious violations of human rights will be committed.”[39]
Prospects of the Treaty
Without adequate regulation of international arms transfers based on high common standards to guide national decisions on these transfers, it is easier for arms to be diverted to the illicit market for use in armed conflict, criminal activities and violence, including organized crime groups.[40] With every transfer it authorizes, a government deciding on exporting weapons must realize the profound international responsibility of that decision. And conversely, an importing government must ensure that it will use these weapons only to provide the safety and security for its people and that it has the capacity to safeguard all weapons within its possession throughout their life cycle.[41]
Undoubtedly, the ATT is a significant milestone on the way towards the goal to reduce the flows of the illicit arms and to reduce human suffering. However, this treaty lacks specific indicators as well as specific provisions about arms transfer towards non-State Actors. Furthermore, the obligation of reporting and the monitoring system suggested by the ATT is hardly sufficient for its successful implementation. The treaty also does not pay enough attention to the criminalization of illicit conducts.
Unfortunately, each weakness in the treaty as well as resistance of states on reaching the substantial agreements on the arms trade has a huge cost of human life and dignity. Those suffering the most from the adverse effects of the arms trade are men, women, girls and boys trapped in situations of armed violence and conflict, often in conditions of poverty, deprivation and extreme inequality, where they are all too frequently on the receiving end of the misuse of arms by State armed and security forces, non-State armed groups and criminal gangs.[42] As President Dwight D. Eisenhower well mentioned: “Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. […] Under the clouds of war, it is humanity hanging on a cross of iron.”[43]
[1] Doctor Who, “Tooth and Claw”, Russell T. Davies.
[2] UNODA Occasional Papers, The Impact of the Poorly Regulated Arms Transfers on the Work of the United Nations, United Nations Coordinating Action on Small Arms (CASA), 2013, p. 3.
[3] A conventional weapon can be defined as a weapon that is neither a nuclear, biological nor a chemical weapon (i.e. not a weapon of mass destruction).
[4] UNODA, About the Arms Trade, available at: <http://www.un.org/disarmament/convarms/ArmsTrade/>, (Last visited on 27 May, 2013).
[5] ICRC, Arms Trade Treaty: A historic step towards reducing human suffering, available at: <http://www.icrc.org/eng/resources/documents/news-release/2013/02-04-weapons-arms-trade-treaty.htm>, (Last visited on 27 May, 2013).
[6] See supra note 4.
[7] The biggest arm suppliers: US, Russia, China, Ukraine, Germany, France, UK, Italy, Netherlands, Spain. See also: BBC, UN passes historic arms trade treaty by huge majority, available at: <http://www.bbc.co.uk/news/world-us-canada-21998394>, (Last visited on 27 May, 2013).
[8] The Globalization of Crime: A Transnational Organized Crime Threat Assessment, United Nations publication, Sales No. E.10.IV.6, 2010.
[9] See supra note 2, p. 1.
[10] See supra note 4.
[11] See supra note 2, p.6.
[12] Ibid., p. 24.
[13] Save the Children, Devastating Impact: Explosive weapons and children, 2011, p. 5.
[14] See supra note 2, p.19.
[15] Ibid., p. 12.
[16] UNHCR News, 14 May 2010.
[17] See supra note 2, p. 23.
[18] Ibid., p. 20.
[19] Ibid., p. 16.
[20] Ibid., p. 2.
[21] Holtom, P. and Wezeman, S. T., Towards an arms trade treaty?, SIPRI Yearbook 2007: Armaments, Disarmament and International Security, Oxford, 2007.
[22] Control Arms Campaign, Million Faces Petition, available at: <http://www.controlarms.org/million_faces/index.php>, (Last visited on 28 May, 2013).
[23] Bailey L., The Foreign Policy Centre Briefing Towards an Arms Trade Treaty, available at: <http://fpc.org.uk/fsblob/1232.pdf>, (Last visited on 28 May, 2013).
[24] The EU Non-Proliferation Consortium, The European Union’s Involvement in Negotiating an Arms Trade Treaty, No. 23 December 2012, p. 3.
[25] UN General Assembly Resolution 64/48, 12 January 2010.
[26] See supra note 24, p. 3.
[27] Ibid. p. 2.
[28] Ibid.
[29] UN General Assembly, The Arms Trade Treaty, A/CONF.217/2013/L.3, Preamble.
[30] Ibid.
[31] Ibid.
[32] See supra note 5.
[33] Revolvers and self-loading pistols, rifles and carbines, assault rifles, sub-machine guns and light machine guns. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).
[34] Heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems (MANPADS); and mortars of calibres of less than 100 mm. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).
[35] See supra note 4.
[36] See supra note 2, p. 3.
[37] See supra note 24, p.13.
[38] See supra note 29, Article 22.
[39] See supra note 5.
[40] See supra note 2, p. 21.
[41] See supra note 5.
[42] See supra note 2, p. 2.
[43] The Chance for Peace speech given by U.S. President Dwight D. Eisenhower on April 16, 1953.
* Picture source: Reuters.
Victims of Terrorism Acts: The Voices to Be Heard
Written by Lina Laurinaviciute
Although terrorism has already been on the agenda of the international community for many years, absence of attention to the concerns of victims of terrorism acts has been significant until fairly recently. The change in at least thirty years[1] taking theoretical debate about victim role in criminal justice was caused by the growing attention to terrorism in general due to the spreading worldwide large-scale terrorist acts. Indeed, terrorism continues to pose a high threat to the security and, more importantly, has become more diverse in its methods and impact. Therefore, much of the public and political concerns are particularly directed towards terrorist acts which lead to many casualties and fatalities.
Figures of terrorist attacks speak for themselves: on 9/11, 2001, more than 3000 people were directly affected by loss of life or injuries; the Bali bombings of 2002 killed 202 people, 164 of whom were foreign nationals (resulting in so-called cross-border victims). A further 209 people were injured.[2] Looking even at regional level, recent Europol’s report[3] on situation of terrorism records a total of 249 terrorist attacks in the European Union (hereinafter – EU) in 2010. It is self-evident that specific support oriented to the needs of victims of acts of terrorism is sufficiently and unquestionably justified on national, regional and international levels.
Notwithstanding the enduring attempts of the international community to fight against terrorism, regrettably, victims of acts of terrorism were mostly “forgotten” and regarded only as collateral damage. Yet because the consequences caused by terrorism will continue to affect international community, which itself is notably showing an increased sensitivity to victims of such calamity, the discussion on the effective response not only to the perpetrators of such criminal acts but also to the victims, indicates the global significance of the the efficient support to victims of terrorism acts.
Regarding the specific characteristics of the victim of terrorism acts, paragraph 1 of the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, defines victims as: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” This definition comprises all situations where people are victimized as a result of criminal offences committed by terrorist organizations and individuals.[4]
Additionally, according to the Council of Europe Recommendation 2006(8) on assistance to crime victims “the term ‘victim’ also includes, where appropriate, the immediate family or dependents of the direct victim”[5] and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power includes “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (also often referred to as ‘first responders’).”[6]
Thus, it is clear that victims of the terrorism acts would fall under the general definition of victim within the criminal justice system. However, it is important to note that terrorism acts as such have unique characteristics which, consequently, lead to the differentiation of the victims of terrorism acts from the victims of other violent crimes.
Regarding the definition of terrorism itself it is important to note that the definition is not generally yet agreed upon. However there were some efforts made to define International terrorism. Some authors, for instance, distinguished International terrorism as a “threat or use of violence for political purposes when such action is intended to influence the attitude and behavior of a target group other than its immediate victim and its ramifications transcend national boundaries”.[7]
Continuing, Rianne Letschert and Antony Pemberton pointed out, that: ”Typologies of terrorism distinguish between religious-motivated terrorism, left and right-wing terrorism, ethno-nationalist or separatist terrorism, vigilante terrorism and single issue terrorism. Terrorism can be both single-phased (bombing and shooting), that is characterized by punctuated short-duration attacks and dual-phased incidents, involving protracted kidnappings, hijackings, and other acts of hostage-taking.”[8] Consequently, the different types and forms of terrorism make it challenging for reaching the consensus on a definition that would cover all existing terrorism forms and could be used as a basis for the joint action under international criminal justice system.
Cyrille Begorre-Bret emphasized that:”the consequence of the ‘definitional abstention’ is of a political and practical nature. If everyone is allowed to define terrorism the way they want, violence will continue indefinitely. Everyone will delimit terrorism in such a way that his own violence cannot be described as illegitimate. If one wants to break the vicious circle that leads from violence to retaliation and from the latter to the former, one needs an objective point of view and therefore a definition. The definition of terrorism is thus far from being just a theoretical issue.”[9]
Currently existing definitions of terrorism, usually incorporate three main elements:
“1. The intention to cause death or serious bodily harm and/or damage to public or private property;
2. The targets are often randomly selected persons, in particular civilians and non-combatants;
3. The purpose of such an act is to intimidate a population (or a specific segment within the population), or to compel a government or an international organization to do or to abstain from doing any act or to attempt to destabilize governments or societies.”[10]
Most acts considered as terrorism inflict large scale human and material devastation. These acts make impact not only to the direct victims, who may be physically injured or killed, but may also have lasting effects on indirect victims, such as their dependents or relatives, as well as vicarious victims, which may include members of the broader society.
From the victim approach, terrorism could be understood as a ‘blind’ violence because it is not targeted at victims intuit personae but it strikes at random, innocent people.[11] However, it could also be associated with symbolism which leads to the direct impact on victims. “Symbolic targets are chosen because their identity or location or activities symbolize something which the terrorists will like to attack. The symbolism attached to the terrorists’ victim may be personal or representative, or it may be ‘everyman’ symbolism.”[12] Thus, as noted by Cyrille Begorre-Bret: “if one defines terrorism through the status of its victims, one manages to avoid the discussion of the legitimacy of its cause.”[13]
Therefore, the category of victims of acts of terrorism is specific, especially addressing their needs regarding compensation arrangements. Furthermore, “victims of terrorism are different from victims of violent crime in that they may be seen as ‘instruments’ used by terrorists in order to modify or intervene in the political process. This public dimension requires a public response which may be seen as solidarity.”[14] Furthermore, the difference in treatment afforded to victims of acts of terrorism, as distinct from victims of other crimes, should be guided by their specific needs and vulnerability.
Regarding the recognition of victim status, generally, judicial authorities need to recognize that the person in question have suffered harm as a direct consequence of the criminal conduct for which the accused is charged so that they can appear as victims in criminal proceedings, including trial. As and example, for the purposes of participation in trial procedures, the Pre-Trial Chamber I in the Situation in the Democratic Republic of Congo considered that “the determination of a single instance of harm suffered is sufficient, at this stage, to establish the status of victim.”[15]
It is important to note, that officials leading investigations or prosecutions may interrogate surviving victims of terrorist acts and thus may prejudice their status as victims or lead to secondary victimization. Therefore, if an investigation is necessary to determine whether victims really suffered harm as a result of criminal acts, victims should be questioned in a careful manner.
Furthermore, the question of the status of the victim should not be directly or solely dependent on the determination of guilt of the accused. as it is stated in the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power “a person may be considered a victim, […] regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”.[16]
The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative as opposed to merely retributive justice. Proponents of this movement promote that criminal justice mechanisms should serve the interests of victims in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims’ interests.[17]
However, the most common[18] approach to the role of the victims in the administration of criminal justice is the one of victim – as an evidence to prosecute crime – terrorism here is not an exception. In essence, “victims of crime were the forgotten persons of the criminal justice system, valued only for their capacity to report crimes and to appear in court as witnesses.”[19] It is important to note, that the International Criminal Tribunals for the former Yugoslavia[20] and for Rwanda[21] in their jurisdictions, did not envision the possibility of victims to intervene in the proceedings, except as witnesses. Such approach raises strong concerns for the ‘visibility’ of victims and more particularly, for the protection of their right to be heard in the criminal proceedings.
Pursuant to Article 14 of the International Covenant on Civil and Political Rights, access to justice is a fundamental right of all persons. Nevertheless, this, one of the most important international human rights instrument goes into detail only with regard to basic procedural rights that shall be afforded to accused persons.[22] However, victims of terrorist crimes, as much as victims of crime in general, should be entitled to access criminal proceedings. Although the concept of victim participation in criminal proceedings is not easily defined, it may be described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.”[23] This also implies the additional right to put questions to the defendant, to call witnesses, and to provide additional evidence.[24]
Naturally, the extent of victims’ role remains a central question for international criminal justice.
Some scholars[25] are concerned that after victim infuse into the legal process, highly emotional accounts from victims risk violating the “procedural justice”. Some[26] observe that “far from giving the victims a hearing, they may leave them feeling silenced”[27]. While others advocate that “participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims’ ‘healing and rehabilitation’.”[28]
In light of this, the question is whether victim participation in recent developments of international criminal justice increased the “positive” role of the victims of terrorism acts within the criminal proceedings by actually allowing greater recognition of victims’ voices and experiences.
In this regard, the Special Tribunal for Lebanon (hereinafter – STL)[29], established in 2006, deals precisely with the crime of terrorism and therefore addresses the victims of terrorism acts. The establishment of this tribunal showes that terrorist crimes that are relatively small in terms of number of casualties can have large political intimidation effects. Michael P. Scharf noted on this concern: “with regard to the notion of fear, terror or panic, that those who are victim of such state of mind need not necessarily make up the whole population.” [30] Therefore, the assassination of the Lebanese Prime Minister Rafik Hariri has been held sufficiently important to result in the establishment of the STL.[31]
Regarding the role of victims of terrorism act, the Statute of the STL grants rather broad access to the participation in the criminal proceedings, respecting also the rights of the accused. The Statute of the Tribunal established within the Registry a section for victims and witnesses, which „provides measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses“[32] Subsequently, Rules of Procedure and Evidence[33] govern, inter alia, the participation of victims and their protection in detail.
Indeed, the participating in the proceedings notion distinguishes victim as „victim of an attack within the Tribunal‘s jurisdiction who has been granted leave by the Pre-Trial Judge to present his views and concerns at one or more stages of the proceedings after an indictment has been confirmed.“[34]
In addition, Article 17 of the STL Statue on rights of the victims recognized: „Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.“[35]
However, the normative framework of the STL also features a number of restrictions. Significantly, the victim‘s participation in the proceedings is limited to a participation through the legal representative unless the Pre-Trial Judge authorizes otherwise.[36]
Nevertheless, participating in the proceedings are entitled to receive documents filed by the Parties (however, with the restriction on the interests of justice).[37] In addition, two more rights are provided for the victims participating at the trial stage. Firstly, a victim „may request the Trial Chamber, after hearing the Parties, to call witnesses and to authorise him to tender other evidence“. It follows, that a victim may also exercise right to examine or cross-examine witnesses, however, „subject to the authorisation by, and under the control of, the Trial Chamber after hearing the Parties“[38]. Secondly, under the conditions of Rule 87 (B) a victim may also file motions and briefs.
Moreover, victims participating in the proceedings at the sentencing stage, has a right to be heard by the Trial Chamber or file written submissions relating to the personal impact of the crimes on them subject to the authorisation by the Trial Chamber.[39] While on victims’ participation at the appeal stage, also subject to the authorisation of the Appeals Chamber, Rules of Procedure and Evidence stipulates that „[…] after hearing the Parties, a victim participating in proceedings may participate in a manner deemed appropriate by the Appeals Chamber.“[40]
Therefore, it follows that, establishing the normative framework of the STL, introduces a changing role of a victim in criminal justice systems, moving from the perception of a victim as witness towards more victim-centred approach, which allows victims to participate in criminal proceedings independent of their role as witnesses and envisage to give victims a voice in the proceedings ensuring that justice is done in relation to their interests, however, in balance of a fair and expeditious trial.
However, to ensure effective access to justice for the victim of terrorism acts is possible only if the State puts in place legal aid mechanisms as the effective victim support, beyond criminal justice response, also requires, the necessary material, medical, psychological and social assistance, including information on available health and social services. In this regard, according to the findings of UNODC: “legal representation is a condition in most legal systems for the victims to participate in a trial.”[42] Therefore, it is clear, that there is a strong link between legal status, legal access and defense of victims’ rights.
Through the course of history it is evidenced, that terrorist violence is unpredictable, it can occur at anytime and anywhere. Anyone can use it and anyone can be its target. “Wars between states are confined to geographical areas and have a declared set of combatants, but terrorism can be conducted with relative ease across many national borders.”[43] It throws a complicated set of challenges varying in scope and scale to different state governments which often grope for appropriate means to respond.”[44]
Terrorism will continue to be a difficult and persistent feature of international violence. Therefore, international cooperation and coordinated international efforts are necessary to ensure effective transnational proceedings and the protection of terrorist acts victim’s rights, beyond the borders. UNODC observed that: “Cross-border issues may add a layer of complexity to the measures required to protect victims’ access to justice and/or compensation.”[45] As example here can be mentioned the location of the trial proceedings, which makes impact on the interests and involvement of the victim, and through this, also to the chances for a successful trial.
In such case, States would have to make additional efforts to extend the support which is usually available to “domestic” victims to victims residing abroad, or to victims residing in their territory who have been victims of offences abroad. In this regard, the experience of foreign victims of the bombings in Indonesia in 2004 illustrates some of the cross-border challenges faced. “While under the Indonesian framework regarding treatment of victims and witnesses, there was no obstacle for foreign victims to seek restitution, one difficulty encountered by a foreign victim that sought medical treatment in a third country was that the legislation of neither Indonesia nor the country of nationality of the victim provided for coverage in those circumstances.“[46]
Therefore, in enhancing the effectiveness of their criminal justice systems, in particular regarding their ability to cope with large-scale crimes, States should also pay specific attention to the support afforded to victims and to the particular challenges faced by victims of acts of terrorism. Particularly in the field of criminal law and jurisdiction, states should, as a consequence of their participation in treaty regime, amend their legislation in accordance with the requirements of the treaty. This may entail substantial changes in their systems of criminal law and procedure. This area is sensitive in the States and thus national authorities too often neglect to implement changes.[47]
Yet, it is also clear that only formal incorporation of relevant international law obligations into the domestic legal system does not guarantee, that anti-terror measures are effectively enforced.[48] Enforcement itself is a complex activity, which ranges from formal incorporation of international law instrument to the monitoring of its practical applications by courts and also law enforcement officials.
In this regard, the reports[49] under relevant Security Council resolutions shows inconsistencies in domestic legislation and enforcement practices, especially the lack of harmonization of criminal law provisions bearing on international terrorism. This is also applied to the regional context, such as the EU, in which the 2002 Framework Decision on combating terrorism “has been implemented by Member States in a manner which can hardly be deemed satisfactory in terms of consistency.”[50]
Thus it is self-evident that such discrepancies, despite all the efforts of international community to harmonize criminal law standards on terrorism, are detrimental to the efficiency of anti-terror measures and therefore also for the effectiveness of the support of the victims of terrorism acts, irrespectively of the nationality of the victim, perpetrator, or the place of commission of the crime. From the focus on victim support from a criminal justice point of view, there is a clear necessity to criminalize acts of terrorism in the domestic legal order, implying the smooth implementation of international normative standards.
In this regard, imposing a worldwide recognized definition of terrorism would reduce a lot of recent controversies and it would help to limit the potential for abuses, that states sometimes have in defining crimes related to international terrorism in their domestic legal systems. The message arising from the mentioned ‘danger’ of the lack of common definition on terrorism is clear: conflicting interests of nation states can make universal counter-terrorism measures impossible.
However, justice from the victim point of view, depends not only on the prosecution of the perpetrators, but also on their role in the criminal proceedings and the capacity to restore the situation for victims. In response to victimization, it is absolutely essential to identify the rights and needs of victims of terrorism acts, to protect those rights, to support victims and to provide reparation for the damage they have suffered.
[1] Harry Mika, Mary Achilles, Ellen Halber, Lorraine Stutzman Amstutz, Listening to Victims – A Critique of restorative Justice Policy and Practice in the United States, Federal Probation Vol. 68 (2004), p. 38.
[2] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 298.
[3] EU terrorism Situation and Trend Report (TE-SAT), 19 April 2011. Available at: <https://www.europol.europa.eu/content/press/eu-terrorism-situation-and-trend-report-te-sat-2011-449>, (Last visited on 15 June 2012).
[4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985, para. 1. Available at: <http://www2.ohchr.org/english/law/victims.htm>, (Last visited on 8 June 2012).
[5] Council of Europe Recommendation 2006(8), adopted by the Committee of Ministers on 14 June 2006, para. 1.1
[6] See supra note 4, para. 2.
[7] SankarSen, Director General, Border Security Force, South Bengal, Features of Modern Terrorism, The Police Journal (1993), p. 37.
[8] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 301.
[9] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1994.
[11] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1996.
[12] See supra note 7, p. 37.
[13] See supra note 11, p. 1996.
[14] See supra note 8, p. 309.
[15]. Corrigendum, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS1, VPRS3, VPRS4, VPRS5, VPRS6, ICC-01/04-101-tEN-Corr, 17 January 2006. See also Redress Trust, Justice for Victims: The ICC’s Reparations Mandate (2011), page 54.
[16] See supra note 4, para. 2.
[17] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314-315.
[18] According to the survey on the position of the victims in legal proceedings,all respondent states victims may participate in criminal proceedings as witnesses. See supra note 8, p. 304.
[19] Marc Clark, Victim-Centred Policing: The Shepherd’s Solution to Policing in the 21st Century, Police Journal 314 (2003), p. 316.
[20] The Statute of the International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993 by SC Resolution 827.
[21] The Statute of the International Criminal Tribunal for Rwanda, adopted 8 November1994 by SC Resolution 955.
[22] International Covenant on Civil and Political Rights (1966), Article 14.
[23] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314.
[24] See supra note 8, p. 304.
[25] Wayne A. Logan, Confronting Evil: Victims’ Rights in an Age of Terror (2007-2008),The Georgetown Law Journal (Vol. 96:721) p. 768.
[26] Such as Wayne A. Logan, Susana SaCouto.
[27] See supra note 25, p. 770.
[28] See supra note 23, p. 315.
[29] United Nations Security Council’s Resolution 1757 (2007), (S/RES/1757 ) adopted by the Security Council at its 5685th meeting, on 30 May 2007.
[30] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 542, para. 112.
[31] Erin Greegan, A Permanent Hybrid Court for Terrorism, 26 Am. U. Int’l L. Rev. 237 (2010-2011) p. 249.
[32] The Statute of the Special Tribunal for Lebanon (2007), Article 12.
[33] See The Rules of Procedure and Evidence adopted on 20 March 2009. Last amendment made on 8 February 2012.
[34] Ibid.,Rule 2.
[35] The Statute of the Special Tribunal for Lebanon (2007), Article 17.
[36] See supra note 158,Rule 86 (C) (ii).
[37] Ibid., Rule 87 (A).
[38] Ibid., Rule 87 (B).
[39] Ibid.,Rule 87 (C).
[40] Ibid., Rule 87 (D).
[41] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 569, para. 226.
[42] United Nations Office on Drugs and Crime, The Criminal Justice Response to Support Victims of Acts of Terrorism (2011), p. 33, para. 133.
[43] See supra note 11, p. 39.
[44] See supra note 11, p. 42.
[45] See supra note 42, p. 4, para. 10.
[46] Ibid., p. 95, para. 383.
[47] Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for the Legitimacy and Cohesion, The European Journal of International Law Vol. 17 No. 5 (2007). p. 895.
[48] An example of how enforcement must be carried out by means other than the formal incorporation of international legal standards is the complaint by the Chair of the CTC that states often limit themselves to ratifying anti-terror conventions and then fail to adopt the measures to properly enforce them.See Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001) S/2004/70/, p. 6-7.
[49] See the Report from the Commission, based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, COM(2004)409 final, 8 June 2004.
[50] Ibid.
* The picture by Caroline Glick, available at: http://www.carolineglick.com.
Cyber Warfare: Between Games and Reality
Written by Lina Laurinaviciute
Cyber Warfare: Between Games and Reality
Setting the background
A top secret super-computer which has a complete control over a nuclear arsenal and the countdown to World War 3 – such scenarios, as the one of a movie “War Games” (1983) were presented as the science fiction in the last century. Indeed, new expansions in the tactical as well as technical dimensions have changed the landscape of warfare where a cyber space battlefield became a realization of that fictional future.
Today, cyberspace exists in all critical infrastructure sectors: telecommunications networks, the electric grid, power plants, traffic control centers, financial sectors, etc. The same technology that enables us to have live video chat on our mobile phones or remote controls used to control air conditioning units also makes it possible to turn off the lights in a city on the other side of the globe.[1]
Usually, media as well as policy-makers refer to cyberspace when simply looking for a synonym to the Internet or describing anything electronic. However, cyberspace may be described as “a global domain within the information environment consisting of the interdependent network of information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.”[2]
Similarly, such terms as “cyber operations”, “cyber attacks”, or ”network attacks” as well as the concept of cyber warfare are used in different contexts and different people appear to mean different things when they refer to them. In general, cyber operations are conducted against or via a computer or a computer system through a data stream. “Such operations can aim to do different things, for instance to infiltrate a computer system and collect, export, destroy, change, or encrypt data or to trigger, alter or otherwise manipulate processes controlled by the infiltrated system.”[3]
One of the main issues raised by “cyber war” is whether a cyber attack can rise to the kind of attack amounting to war. International Humanitarian Law (hereinafter IHL), also referred to as the laws of war, characterizes war as the resort to protracted and intense armed force by two or more parties. Armed conflict is either between States, characterized as international armed conflict, or between States or armed groups operating inside a single State, referred to as non-international armed conflict. The most well-known of the laws are the 1949 Geneva Conventions[4] and 1977 Additional Protocols[5], which present rules for protecting civilians and those hors de combat (wounded, sick and unable to fight soldiers) in land, naval, and air warfare.[6] As it can be expected, due to the development of new technologies, none of the provisions of these laws specifically mention cyber attacks.
Some researchers, such as Joel Brenner, are of the opinion that cyber attacks should not fall under IHL. As cyber warfare is not a kinetic action, it is not an armed attack and thus, IHL does not apply.[7] However, the growing importance of the use of information technology in military activities and its potential to gain military advantage in a more cost effective way, urges to look at it from the IHL perspective and determine the circumstances, under which cyber operations (as opposed to the traditional kinetic military operations) can constitute attacks within the meaning of IHL.
The fact that a new concept of a cyber attack has come into existence after the treaty laws were adopted, does not preclude the applicability of these laws. Article 36 of Additional Protocol I (hereinafter AP I) says that in the study, development or adoption of a new weapon or method of warfare, States Parties are under an obligation to determine whether their employment would, in some or all circumstances, be prohibited by international law applicable to them.[8] Also, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice held that “it cannot be concluded […] that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future”.[9] Hence, it has been well accepted already that “a lack of directly applicable treaty law does not create an international humanitarian law – free zone, where anyone can conduct hostile activities without rules or restraints.”[10] Due to the fundamental prohibitions, IHL was designed to be flexible enough to accommodate technological developments, including those that could never have been anticipated at the time.[11] It follows that cyberspace is not a distinct domain subject to a separate body of law.
In this framework, cyber warfare refers to means and methods of warfare that rely on information technology and are used in the context of an armed conflict. The experts of the recently issued Tallinn Manual on the International Law Applicable to Cyber Warfare (hereinafter Tallinn Manual), defined cyber weapons as “any cyber device, materiel, instrument, mechanism, equipment, or software used, designed, or intended to be used to conduct a cyber attack.”[12] It is also important to keep in mind that IHL is applicable in time of an armed conflict. Therefore, one of the challenges addressing war in cyberspace is to determine whether resort to cyber weapons can constitute an armed attack.
In accordance with Article 49 (1) of AP I “Attacks” means acts of violence against the adversary, whether in offence or in defence.[13] A “cyber attack” is very fact-specific and must be distinct from cyber espionage, which is done by many nations including recent cases of China, Russia, Iran and does not violate traditional interpretations of IHL. Examples of the cyber operations that have been carried out so far, such as a 2007 Israeli cyber-attack on Syria that disabled all Syrian anti-air systems so that the Israeli air-force could bomb a secret Syrian nuclear reactor site undetected or the 2007 attacks on Estonian banks and government websites as well as the 2008 Russian cyber attacks on Georgia during the South Ossetia War, do not appear to have had serious consequences for the civilian population.[14] However, they show that while the critical infrastructure of nations continually becomes more reliant on networks and cyberspace, the possible targets for cyber-attacks greatly increase. Logic bombs and computer viruses can disrupt everything from electric grids and the stock market to nuclear power plants and water treatment facilities. Therefore, potentially catastrophic scenarios, such as collisions between aircraft, the release of poisons from chemical plants, or the disruption of vital infrastructure and services cannot be dismissed. Such attacks would most likely have large scale humanitarian consequences and could result in significant civilian casualties and damages.[15]
Therefore, the situations when cyber activities result in death, injury, or significant destruction would likely be treated as a use of force.”[16] However, the determination of the threshold for the use of force, especially, in cases not involving physical harm, remains problematic. It might depend on the degree of damage that a computer network attack causes –“the greater the damage, the more likely the situation will be viewed as an armed conflict.”[17] The other factors, that may be significant for the classification of cyber operation as a use of force, include: immediacy (the speed with which consequences manifest), directness (the causal relation between a cyber operation and its consequences), invasiveness (the degree to which a cyber operation intrudes into targeted systems), measurability of the effects, military character of the cyber operation, extent of State involvement, and presumptive legality (acts not expressly prohibited by international law).[18]
Generally speaking, cyber operations are not violent in the sense of releasing kinetic energy, unless they qualify as an attack by virtue of their consequences, specifically injury or death of persons, damage or destruction of objects. Therefore, the principle of distinction between military and civilian objectives, prohibition of indiscriminate attacks, requirement to take the necessary precautions and abstain from attacks if civilian damage is likely to be excessive to the value of the military objective to be attacked are also applicable to such attacks and operate in the same way as to the attack which is carried out using traditional weapons.[19] Nevertheless, in practice, IHL faces some significant challenges dealing with cyber warfare.
Challenges applying rules of IHL in cyberspace
The challenges met by the international legal regulation in cyber warfare are due to the fact that cyberspace consists of innumerable computer systems across the world where civilian and military computer networks are highly interconnected.[20] A lot of military infrastructure relies on civilian computers or computer networks. It is estimated that 95 percent of world data and voice traffic is carried over fiber optic cables, providing shared bandwidth services to both public and private sectors. Indeed, the interconnectivity of military and civilian networks are so high that it is questionable whether a military-civilian separation in cyberspace is possible and, thus, if a military objective can accurately be targeted without any damage to the civilian cyber infrastructure. For example, 95 percent of American military communication goes through a civilian infrastructure.[21]
It is important to stress, that IHL prohibits indiscriminate attacks. The principle of distinction, as stipulated in the Article 48 of AP I, requires that parties to a conflict distinguish at all times between civilians and combatants and between civilian objects and military objectives.[22] In accordance with Article 51 (4) of AP I, an indiscriminate attack is defined as one which is either not aimed at a specific military objective or because the effects of an attack on a military objective are uncontrollable and unpredictable.[23] Attacks may only be directed against combatants or military objectives, which in pursuant to the Article 52 (2) [24] AP I are the ones that make an effective contribution to the military actions of the adversary and in the circumstances at the time when they are attacked must give a direct and concrete military advantage to the attacker.
Military objectives, such as communication lines, command and control systems, computers or computer systems used in support of military infrastructure or for military purposes can be targeted. As long as the two conditions that determine a military objective are fulfilled and as long as the attack does not spill over to civilian damage and suffering, the act is legitimate. It follows that attacks via cyber space may not be directed against computer systems used in medical facilities, schools, and other purely civilian installations that has special protections against attacks, such as drinking water installations and irrigation works, dams, dykes, or nuclear electric stations that have the ability to release dangerous forces.[25]
Thus, the uncontrollable computer virus would be prohibited as an indiscriminate weapon in the same way that the use of a biological virus would be prohibited; while a destructive cyber attack that leads to the overheating and destruction of exclusively military cyber installations would raise no particular legal concerns. An obvious example would be the release of a virus or a range of viruses into the computer systems of a target State. Even if introduced only into the military network of a State, if the virus is virulent enough, it would soon seep out of that network and into civilian systems of the targeted State or even beyond to neutral or friendly States. Such viruses must most likely should be considered as indiscriminate because they cannot be directed against a specific military objective, and they would be a mean or a method of combat which effects cannot be limited as required by AP I even if aimed accurately at the intended target.[26]
Also, some dilemmas are raised on the use of social networks for military purposes. Indeed, in recent conflicts, it became a common practice to transmit military information via Twitter, Facebook and other social media. The experts of the Tallinn Manual agreed that such use of social networks would transform those facets of the social media networks that are used for military purposes into military objectives. However, the entire networks would not be subject to direct attack.[27]
Another problematic issue is the status of persons involved in cyber operations.
When activities related to cyber attack are performed directly by the personnel of armed forces, it is considered to be performed by a combatant and, thus, such person can directly be attacked and are subject to have prisoners of war status. The problem is that since the specific technical expertise of computer technology mostly lies in the civilian domain, the use of civilians for military activities can be a common practice. It follows, that civilians who are directly participating in hostilities (hereinafter DPH) can become legitimate targets. The involvement in DPH can be manifested through various forms. For example, civilians may be those who launch a cyber attack or they are used to maintain the computer programs or computer network from which a cyber attack is launched. However, the interpretation of the concept of DPH in activities related to cyber attacks, which results to the loss of protection under IHL, is still debatable.[28]
In addition, it is a fundamental rule of IHL that if a party to an armed conflict intends to carry out a cyber attack it is under a legal obligation to conduct a proportionality assessment and to take precautions before launching such an attack. Respect for these principles, as reflected in Article 57 AP1, includes the obligation of an attacker to take all necessary precautions in the choice of means and methods of attack in order to avoid or minimize civilian casualties and collateral damages. [29]For example, commanders must decide whether launching a worm attack on the network of the adversary is feasible or not because the functioning of a worm is such that it has a very high capability of infecting large networks, and that shows its capability of damaging civilian cyber infrastructure, including that of hospitals and banks.[30] In this view, collateral damage is perceived as the loss of civilian objects during military combat operations due to the violent character of war.
Collateral damage in order to get the direct and concrete military advantage is legal as long as it does not violate the rules of proportionality. According to them “[a] cyber attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.”[31] Therefore, no collateral damage is acceptable if it is in excess of the anticipated concrete and direct military advantage.
In this regard, the development of new technologies may successfully contribute to the purpose of protection reflected in the core principles of IHL. In certain cases cyber operations might cause fewer incidental civilian casualties and less incidental civilian damage compared to the use of traditional weapons.
However, despite the advantages provided by the new technologies, the digitalization on which cyberspace is built causes another difficulty in applying the rules of IHL to cyberspace, as in most cases, it is difficult if not impossible to identify the author of an attack, the location from which it is being conducted, and to estimate its destructive potential. It is often necessary to work a way back in the chain of computers controlling other computers in order to figure out who attacked. This implies some sort of intrusive capability to identify who is attacking and thus complicates the attribution of conduct.[32]
However, from the general point of view, attribution is a practical/ technical problem in nature and therefore, can be resolved through practical or technical means, but not by means of the law. Hence, the tendencies of technological innovation may provide solutions to this practical difficulty much faster than we may anticipate today.[33] Till that day, the anonymity of communications rise difficulties on the attribution of responsibility to individuals and parties to conflict on which IHL strictly relies.
The experts of Tallinn Manual came to an agreement that “no State may claim sovereignty over cyberspace per se” and that “States may exercise sovereign prerogatives over any cyber infrastructure located on their territory, as well as activities associated with that cyber infrastructure.”[34] However, “the fact that a cyber operation has been routed via the cyber infrastructure located in a State is not sufficient evidence for attributing the operation to that State.”[35] Indeed, the technology for conducting offensive operations in cyberspace can be obtained anywhere, for instance, by mail order, while the knowledge needed to conduct some kind of cyber attack is available on the internet. Thus, many non-state actors, such as companies, terrorists, organized crime, patriotic hackers or even teenagers, can have influence.
In this regard, the International Court of Justice in its very first case on Corfu Channel, held that a State may not “allow knowingly its territory to be used for acts contrary to the rights of other States.”[36] For example, a State would be obligated to take necessary measures to end a cyber attack launched by a terrorist group from its territory against other States.
In addition, According to the Articles on State Responsibility, “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”[37] The jurisprudence of the International Court of Justice suggests that the degree of control for attribution to occur shall reach the level of an “effective control” over non-State actors. Therefore, “merely encouraging or otherwise expressing support for the independent acts of non-State actors does not meet the threshold for the degree of control.”[38]
In this regard, the International Court of Justice in the Nicaragua judgment pointed out that the notion of an armed attack includes “‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’.”[39] It follows that, for instance, providing an organized armed group with malware (funding, legal, practical support) to be used against another State would constitute a use of force, while only providing sanctuary to that group would not reach such level.
However, the more complicated question is whether a non-State actor’s cyber operations that are not attributable to a State can nevertheless qualify as an armed attack and thus can justify as the use of force in self-defense against that non-State actor.
Article 51 of the United Nations Charter stipulates that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” Concerning this issue, the position of the US government, for instance, has long been that “the inherent right of self-defense potentially applies against any illegal use of force. There is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response.”[40]
An agreement can be reached that cyber operations resulting in death or serious injures of individuals or serious damage to objects can qualify as armed attacks. As mentioned before, whether a cyber use of force qualifies as an armed attack depends on its scale and effects. However, the defensive actions are also subject to the requirements of IHL (necessity, proportionality, imminency, and immediacy). It follows that, “[a] State that is the target of a cyber operation that rises to the level of an armed attack may exercise its inherent right of self-defense.”[41] Furthermore, “a State need not take the first cyber hit before acting to defend itself”[42] and, thus, by this approach the “anticipatory self-defense” is allowed under international law.
The way forward
The world of new technologies is neither a world of virtual games nor it is a science fiction. Warfare in a cyberspace can cause death and damage to the real world. However, technology, in itself, is neither good nor bad, “it can be a source of good and progress or result in terrible consequences at worst.”[43] Indeed, today, none of the so called natural domains (air, maritime or space) can function if cyberspace fails which would mean going back to the time of the messenger pigeon or a drawing board.[44]
Even though international laws do not specifically mention cyber attacks, cyber warfare is not emerging in a legal hole or creating a new legal crisis. Cyber operations can be treated as a means and methods of warfare and therefore, IHL rules, that set limitations to cyber attacks through the principles of distinction, proportionality and precaution are applicable. However, the above mentioned challenges, for applying the pre-existing legal rules to a new technology, points out certain gray areas that require further analysis to determine whether these rules are sufficient and clear in light of the technology’s unique attributes. Therefore, specific cyber warfare laws or even a comprehensive treaty might be adopted in the future as technologies evolve and their impact becomes better understood.
Indeed, policy makers and military leaders all over the world are considering the implications of cyber warfare and a number of countries have already taken steps to increase their cyber-warfare capabilities, whereas NATO has listed cyber-defense as a major initiative of its new Strategic Concept.[45] However, in a view of the current political environment, where states have varying views on cyber security, most probably the technology will develop faster than laws. Hopefully, it will not only bring new challenges but also will offer effective solutions for the successful application of IHL in cyberspace.
[1] Dr. Priya Dixit, International Humanitarian Law for Cyber-Warfare, Proceedings of The National Conference
On Undergraduate Research (NCUR) 2011, New York, March 31 – April 2 2011, p. 1.
[2] Ibid., p 2.
[3] Cordula Droege, No Legal Vacuum in Cyber Space, ICRC Interview, 16 August 2011, available at: http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm, [accessed 28 February 2013].
[4] IV Geneva Conventions, 1949.
[5] Additional Protocols to the IV Geneva Conventions, 1977.
[6] In International Committee of the Red Cross,War and International Humanitarian Law, 2011.
[7] Joel Brenner, Cyber-Security: Regulating Threats to the Internet under International Law, ASIL Live-Blogging, available at: http://thenewinternationallaw.wordpress.com/2012/03/29/asil-live-blogging-cyber-security-regulating-threats-to-the-internet-under-international-law, [accessed 28 February 2013].
[8] Additional Protocol I, Article 36, 1997.
[9] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (General List No. 95) (8 July
1996).
[10] Michael N. Schmitt, International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed, December 2012, p. 5.
[11] International Institute of Humanitarian Law, International Humanitarian Law and New Weapon technologies, 2011, p. 24.
[12] Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press 2013, available at: http://www.ccdcoe.org/249.html, [accessed 28 February 2013].
[13] Supra note 8., Article 49 (1).
[14] Supra note 1., p. 6.
[15] Supra note 3.
[16] Supra note 10., p. 7.
[17] Knut Dörmann, Applicability of the Additional Protocols to Computer Network Attacks, p. 3.
[18] Supra note 12.
[19] Supra note 12.
[20] Supra note 17.
[21] Supra note 11., p. 148.
[22] Supra note 8., Article 48.
[23] Ibid., Article 51 (4).
[24] Ibid., Article 52 (2)
[25] Bhaskar Sharma, Cyber War and Jus in Bello, December 2012, available at: http://www.foreignpolicyjournal.com/2012/12/03/cyber-war-and-jus-in-bello, [accessed 28 February 2013].
[26] Supra note 17., p. 5.
[27] Supra note 12.
[28] Supra note 25.
[29] Supra note 8., Article 57.
[30] Supra note 25.
[31] Supra note 10., p. 16.
[32] Supra note 11., p. 142.
[33] Ibid., p. 172.
[34] Supra note 12.
[35] Ibid.
[36] International Court of Justice, Corfu Channel Case (U.K v. Alb.) 1949 I.
[37] Articles of State Responsibility, Article 8.
[38] Supra note 12., p. 23.
[39] International Court of Justice, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986.
[40] Supra note 10.,p. 9.
[41] Supra note 12.
[42] Ibid.
[43] Supra note 11., p. 182.
[44] Ibid., p. 148-152.
[45] NATO, Strategic Concept, 2010, Available at: http://www.nato.int/cps/en/natolive/official_texts_68580.htm#cyber, [accessed 28 February 2013].
A Sea Free From Piracy – When Mare Will be Really Liberum?
Written by Lina Laurinaviciute
A spot of a small boat approaching a merchant vessel crossing the Red sea or a cruise ship riding to the sunny Seychelles can be a sign of a great danger and a terrible misfortune if not noticed in time. Hugo Grotius, the Dutch philosopher, more than 400 years ago in his book “Mare Liberum” (The Free Sea) declared that it was not possible to own sea.[1] However, soon it was realized that its treasures were not without a master. In the same 17th century Sir Edward Coke, an English jurist and Member of Parliament, expressed concern about the criminals – the pirates, who were characterized as the hostis humani generis (enemy of all mankind). The recent situation, especially in Somalia, reveals, that this problem still has an alarming tendency even in the 21st century.
Indeed, nowadays, the character of a pirate is far from the one romanticized by Capt. Jack Sparrow. Usually, they are local seamen looking for a quick score, highly-trained guerrillas, rouge military units, or former seafarers recruited by crime organizations. Armed with knives, machetes, assault rifles and grenade launchers, they steal out in speedboats and fishing boats in search of supertankers, cargo ships, passenger ferries, cruise ships, and yachts, attacking them at port, on the open seas, in international waters.[2] Also, the “Jolly Roger” – a famous flag of pirates, is not used by pirates themselves, but indicates a great danger in the various maps of maritime risk intelligence.
The first international efforts to define piracy were made by signing the United Nations (hereinafter – UN) Geneva Convention on the High Seas in 1958 and the following UN Convention on the Law of the Sea, signed in 1982, which stated that piracy consists of any of these acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).[3]
The estimated figures of the International Maritime Bureau’s (IMB) Piracy Reporting Centre show, that worldwide in 2012, pirates have committed 278 attacks, hijacked 27 vessels, took more than 400 hostages, from which 147 are still held by Somali pirates.[4] In addition, 58 attempted attacks were reported.[5] Indeed, the drop in Somali piracy has brought global figures for piracy and armed robbery at sea down compared with 2011, when 439 worldwide piracy attacks were reported. Nonetheless, there can be no room for complacency till entire ships are hijacked and cargo crews simply vanish.[6] Mariners are warned to be cautious and to take necessary precautionary measures, especially when transiting through the coasts of Somalia, Nigeria, Benin, South East Asia and Indonesia.[7]
As mentioned before, in Somalia attacks have dropped significantly, mostly due to the increased military action on suspected skiffs, military anti-piracy operations and increase in armed guards onboard ships. However, Somali pirates still remain the greatest global threat, as the majority of the worldwide piracy attacks are attributed to them. Usually, the tactics of the Somali pirates is to attack ships in the northern, eastern and southern coast of Somalia. According to the IMB’s report of 2011, these pirates have also attacked vessels much farther off the Somali coast. They have moved deeper into the Indian Ocean, off Seychelles and the Maldives, and further south along the East African coast, off Kenya, Madagascar, and Mozambique.[8] To proceed with attacks very far out to sea, pirates normally use “mother vessels”, which are able to launch smaller boats to attack and hijack unsuspecting passing vessels.[9]
In the case of Nigeria all waters are considered to be risky. Pirates attack, hijack and rob vessels, kidnap crews along the coast, rivers, anchorages, ports and surrounding waters.[10] Piracy in the Gulf of Guinea has been over shadowed by Somali piracy in recent years and is becoming increasingly dangerous (34 incidents from January to September 2012, up from 30 last year) and has pushed westward from Benin to Togo, Ivory Coast and Ghana.[11] The recent attacks indicate a worrying development of a dangerous business in the region. Attacks in Indonesia remain a concern as well. These attacks, which are normally launched during the night, have largely taken place in the Malacca Strait, through which 30 percent of the world’s trade and half of the world’s oil shipments pass.[12]
As reported by the IMB, pirates’ attacks are often violent, planned and aimed at stealing oil, gas or other products which can be easily sold on the open market. To cover their tracks once the vessel is hijacked, they damage the communication equipment and at times even the navigation equipment. A ransom demanded for the release of the vessel and crew is also a prospective criminal deal of piracy.[13] An estimated global cost of piracy for 2010 was in the range of $7 to $12 billion, while for 2011 $7 billion were estimated only as Somali piracy’s impact on the global economy.[14] Piracy and armed robbery have great economic consequences, as they are disrupting the delivery of humanitarian aid, especially to Somalia, threatening vital sea lines of communication, economic interests and security of countries at risk, as well as international maritime security and commerce.
As a result of these challenges, many ships have begun to hire armed guards. While this tactic can be quite effective, however, there is not yet a process for regulating these guards, creating potential legal complications. The killings of pirates by security companies, as the one of 2010 when the private security contractors shot dead a Somali pirate, raises questions over who has jurisdiction over a growing army of armed guards on merchant ships flying flags from many nations.[15] A piracy expert Roger Middleton, from the British think tank Chatham House, cautions, that : ”there’s currently no regulation of private security on board ships, no guidelines about who is responsible in case of an attack, and no industrywide standards”. Therefore, the shipping industry and national governments should better coordinate their response to the threat of piracy.
The international community has taken a number of steps to tackle piracy when it emerged as a threat to international maritime security several years ago. In 2008, the UN Security Council passed a series of measures targeting Somali piracy, including Resolution 1816, which authorized states to undertake enforcement actions against piracy and armed robbery in Somalia. Following this and other UN resolutions, NATO, European Union, and United States started naval patrols operations in the Gulf of Aden.[16] This has improved security in that narrow body of water and pushed pirate activity into the broader Indian Ocean, making attacks more costly and risky for pirates, but also making it more difficult to counter attacks across such a vast area.[17]
Similarly, in 2011, Indonesia and Malaysia deployed two warships to the strait as part of a joint patrol targeting pirate attacks. The countries have also developed an “Eye in the Sky” operation with Singapore and Thailand, by which they jointly carry out air patrols.[18] However, not all navies, especially in the Gulf of Guinea have the resources to fight piracy far out at sea, so criminal gangs shift to other areas.[19]
Nonetheless, despite these efforts, it is realized that piracy cannot be solved by military means alone. The amount of ocean to patrol is too vast to protect every ship and, as risk analysis shows, pirates have responded to the increased naval presence by moving attacks farther out to sea. Piracy is most often just one symptom of the general collapse of law and order in the failed state. As a result, the attacks on shipping will continue as long as there is no central government capable of taking on the well-armed and well-paid pirate gangs.[20] Thus, tackling the root causes of piracy, supporting local communities and improving prosecution have a key importance for the rescue of the seas from pirates.
The UN Convention on the Law of the Sea makes piracy a universal crime, and subjects pirates to arrest and prosecution by any nation.[21] Taking the example of Somali’s piracy, the root of problem here has been the lack of an effective central government tied with limited economic opportunities throughout the country, where piracy became a mean of survival. In addition, Somalia is composed of a large number of clan groups, and the law is largely implemented at the local level. For many of these groups, piracy provides an economic lifeline, and so they are not willing to prosecute pirates.[22]
Indeed, pirates usually operate as a part of an organized crime network, such as JakartaGlobe in Indonesia. The warlords have intervened sending a good deal: traffickers living in Dubai or Yemen and fisherman are hired by gangs of pirates to execute criminal business. Foreign warships patrolling the area are creating some difficulties but the business is too lucrative to stop the traffickers.[23] Thus, it is clear that, if convictions of pirates in courts will not be successful, with many pirates walking away free, the threat of going to prison will not be a credible deterrent from piracy.
Furthermore, to combat piracy effectively means not only focusing on the pirates operating at sea but also changing the risk-reward equation for the ringleaders, clans providing support to pirates and agents providing intelligence from African ports. Further, it means reducing the freedom of movement pirates currently enjoy despite the private, national and international efforts. Piracy cannot also be defeated without the active cooperation of all the actors involved, including the regional governments.[24]
Pirates are well organised and resourced criminals. They rapidly adjust their tactics and manage to avoid naval patrols by operating farther offshore. Therefore, the holistic approach and the measures including military sea and land based anti-piracy action, preventive techniques used by the merchant vessels, strengthening law enforcement for the affective arrest and prosecution of pirates in the coastal countries, increasing cooperation between all counter-piracy actors and optimizing their efforts should be the priority to tackle evolving pirate trends and tactics. Equally, more significant impact should be made to eradicate the roots of piracy by building-up the capacity of the states and accelerating social and economic development. These measures in long term perspective can mitigate new developments in piracy, reduce its recent effect and contribute to the final defeat, enabling to declare that mare is liberum once more.
[1] United Nations Interregional Crime and Justice Research Institute, Freedom from Fear 3, Pirates of the XXI Century on the Treasure Hunt, April 2009, p. 31.
[2] Ibid., p 48.
[3] United Nations Convention on the Law of the Sea, 10 December 1982, Article 101.
[4] International Chamber of Commerce, Piracy & Armed Robbery News & Figures,3 December 2012,available at: http://www.icc-ccs.org/piracy-reporting-centre/piracynewsafigures, [accessed 19 December 2012].
[5] International Chamber of Commerce, IMB Reports Drop in Somali Piracy, but Warns Against Complacency, available at: http://www.icc-ccs.org/news/811-imb-reports-drop-in-somali-piracy-but-warns-against-complacency,[accessed 19 December 2012].
[6] Ibid.
[7] International Chamber of Commerce, Piracy & Armed Robbery Prone Areas and Warnings, available at: http://www.icc-ccs.org/piracy-reporting-centre/prone-areas-and-warnings, [accessed 18 December 2012].
[8] International Maritime Bureau, Global Piracy Report 2011, available at: http://www.ibm.com/investor/pdf/2011_ibm_annual.pdf, [accessed 19 December 2012].
[9] Supra note 8.
[10] Ibid.
[11] Supra note 5.
[12] Council on Foreign Relations, Combating Maritime Piracy, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376,[accessed 18 December 2012].
[13] Supra note 5.
[14] One Earth Future, The Economic Cost of Maritime Piracy, Working Paper, December 2010, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376, [accessed 18 December 2012].
[15] World, Private Guards Kill Somali Pirate For First Time, 24 March 2010, available at: http://www.huffingtonpost.com/2010/03/24/private-guards-kill-somal_n_511143.html, [accessed 19 December 2012].
[16] Supra note 14.
[17] Council on Foreign Relations, Smarter Measures in Fight Against Piracy, 10 December 2010, available at: http://www.cfr.org/somalia/smarter-measures-fight-against-piracy/p23611, [accessed 19 December 2012].
[18] Supra note 14.
[19] Supra note 5.
[20] Supra note 15.
[21] Supra note 14.
[22] Ibid.
[23] Supra note 1, p. 13.
[24] Supra note 17.
* Photo of Mohamed Dahir / AFP – Getty Images
A Contrario ICL 