Abstract
The mass media, personal smartphone and social media facilities and legal and litigation fora, taken together, create the spotlight under which modern warfare is frequently fought and that spotlight is the focus of Chap. 11. After explaining the current law as it applies, respectively, to war correspondents and to journalists, the chapter looks at the diverse media, at attempts to control it and assesses the implications of human rights law norms. Noting the potential strategic impact of news media and private reporting of events, new trends are identified. Legal processes contribute to the spotlight, and the chapter reviews in this regard Coroners’ courts, inquiries, criminal courts, judicial review, human rights proceedings and challenges at the political level and proceedings before international courts and tribunals. The strategically important implications of ‘lawfare in the digital age’ are then assessed, and an attempt is made to draw some conclusions.
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Notes
- 1.
Daniel Thürer comments that “violence on the international level attracts the media who, one might say, present it as entertainment for vast, passive audiences. It is as if war had become a spectacle, designed to amuse the solitary television viewer”; Thürer 2011, p. 33; but as to the importance of the media in contemporary conflicts see Thürer 2011, pp. 352–356 and consider Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, ICTR, Trial Chamber Judgment 3 December 2003, Case Number ICTR-99-52-T, para 99 (the Radio Télévision Libre des Mille Collines case).
- 2.
This is a reference to the capacity of relatively junior-ranking individuals in armed conflict or other sensitive situations to have strategic effect by virtue of what they do or say.
- 3.
Recall, for example, the enduring power of the image of Kim Phuc, the Vietnamese girl photographed in 1972 as she fled naked from her village following a napalm attack in which her body had been scorched.
- 4.
Consider, for example, the observation by Wesley Clark that public opinion, through restrictive rules of engagement, was “doing to us what the Serb air defense system had failed to do: limit our strikes”; Clark 2001, p. 444.
- 5.
The precursor to this provision was Hague Regulations, 1907, Article 13 which refers to “individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters” being entitled to prisoner of war treatment provided they are in possession of a certificate issued by the force they accompanied. It is immediately evident that the 1907 absolute requirement as a condition for prisoner of war treatment that the prisoner have the certificate with him on capture is replaced by the two requirements referred to in the main text.
- 6.
API, Article 79(1). As the API Commentary notes, journalists exercising their profession in situations of armed conflict often encounter risks similar to those faced by members of the armed forces; Sandoz et al. 1987, para 3245.
- 7.
Action adversely affecting their protection as civilians would include direct participation in the hostilities as referred to in API, Article 51(3).
- 8.
API, Article 79(2). Article 4A(4) of the Third Convention provides for accredited war correspondents to have prisoner of war status on capture by an adverse party.
- 9.
API, Article 79(3) and see generally Dinstein 2010, pp. 166–168.
- 10.
Hans-Peter Gasser and Knut Dörmann point out that war correspondents may carry out the normal activities that form part of their occupation in the area of operations, including looking around, taking notes, making visual and audio recordings; Gasser and Dörmann 2013, p. 251.
- 11.
Clandestine operations are those conducted in such a way as to ensure secrecy or concealment; AMW Manual 2009, commentary accompanying Rule 118, para 1.
- 12.
Hague Regulations, 1907, Article 29.
- 13.
AMW Manual 2009, Rule 119.
- 14.
AMW Manual 2009, commentary accompanying Rule 119, para 3.
- 15.
Note, for example, the Occupying Power may not engage in propaganda to secure voluntary enlistment of protected persons in the armed forces or auxiliary forces of the occupying power; Geneva Convention IV, Article 51(1) and UK Manual 2004, para 5.15.1.
- 16.
Geneva Convention III, Article 13(2) and consider Article 129, which requires states party to suppress all acts contrary to the Convention’s provisions. Consider the broadcast during the Iraq War of images of prisoners; in 2005 the transmission of images of Saddam Hussein while in US custody; in 2012, the interview on television of a pilot shot down during the Syria Conflict; and in December 2012 a broadcast showing the parading of male prisoners in connection with the Syria Conflict. A Memorandum dated 26 November 2007 under the title “‘Public Curiosity’ in the 1949 Geneva Conventions: The Interpretation Developed by the Government of the United Kingdom of Great Britain and Northern Ireland and the British Red Cross” proposes that the following principles should be applied: “(1) Any image of Prisoners of War (POWs) as identifiable individuals should normally be regarded as subjecting such individuals to public curiosity and should not be transmitted, published or broadcast. Where the specific circumstances of a case make it necessary in the public interest to reveal the identity of a POW (e.g. because of the person’s seniority, or because the person is a fugitive from international justice) great care should be taken to protect the person’s human dignity. (2) Images of POWs individually or in groups in circumstances which undermine their public dignity should not normally be transmitted, published or broadcast. In the exceptional circumstances where such images are transmitted, for example, to bring to public attention serious violations of international humanitarian law, individual identities must be protected”. The Memorandum goes on to express the hope “that media organisations and individual journalists would act prudently and discreetly when reporting on prisoners of war, bearing in mind the effect of publication or transmission of their work on the prisoners of war and their families”. The Memorandum is available at http://collections.europarchive.org/tna/20080205132101/, http://fco.gov.uk/files/kfile/red%20cross%201.htm.
- 17.
A distinction must be drawn between journalists interviewing prisoners in order to disclose the unlawful treatment to which they are being exposed with a view to improving their situation, and journalists questioning prisoners in such a way as to expose them to the risk of oppressive treatment. Consider, in relation to the civil war in Syria, criticisms of the questioning of prisoners by BBC and al-Jazeera journalists; Saxon 2013, available at www.cpj.org/security/2013/01/humanitarian-law-ethics-and-journalism-in-syria.php.
- 18.
Tallinn Manual 2013, commentary accompanying Rule 11, para 9h.
- 19.
See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, International Criminal Tribunal for the Former Yugoslavia (ICTY) (2000) at paras 75 and 76. Tony Rogers discusses the attack on the Belgrade television station on 23 April 1999, the attack on the Baghdad television station in March 2003 and the attack on the Basra radio and television station the following day, and concludes that attacks on media stations may be permissible, subject to the rule of proportionality, if the station helps the enemy in its military operations, “for example if it is integrated into the military communications system, possibly if it is used to incite violence, but not if it merely broadcasts news, even of doubtful validity, to the population”; Rogers 2012, pp. 121–122. See also Daniel Thürer’s discussion of the attack on the Belgrade Broadcasting Station; Thürer 2011, pp. 80–81. At pp. 81–82, Daniel Thürer seems to be implying that attacking a sleeping soldier during an armed conflict is rendered unlawful by the customary principle of proportionality and/or modern human rights and constitutional law. If that is the intended inference, it is not accurate. During an armed conflict, it is lawful to attack combatants or fighters of the opposing party unless they are hors de combat or for some reason specially protected from attack.
- 20.
This assumes, of course, that the journalist is in fact a civilian. If he is both a journalist and a combatant, he can be lawfully attacked at any time during the armed conflict. Note Resolution 2 of the 31st International Conference of the Red Cross and Red Crescent, dated 1 December 2011, available at www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-2-2011.htm. Objective 3 of Resolution 2 is entitled “Enhanced protection of Journalists and the role of the media with regard to international humanitarian law” and recognizes, among other things, that the work of journalists and other media professionals may make an important contribution to public knowledge of and recording of information on violations of international humanitarian law. The Objective notes that journalists assist in preventing violations as well as countering impunity.
- 21.
Consider the prohibition of the threat or use of force in Article 2(4) of the UN Charter. The combined effect of remote attack techniques such as are discussed in Chap. 6 and the widespread and instantaneous dissemination of information as to what is occurring means that more widespread communities may be regarded as affected by a threat than would have been the case in earlier times.
- 22.
Dunlap 2006, pp. 121–122.
- 23.
- 24.
- 25.
See footnotes 27–30 below.
- 26.
This would be appropriate, for example, if the access that his status as an accredited war correspondent gives him to the relevant force is being misused. A journalist whose accreditation has been removed would nevertheless be protected under Article 79 of API but would no longer be entitled to PW status on capture.
- 27.
In 2011, Internet traffic to and from Egypt was virtually entirely cut off. Reportedly, mobile phone operators in Egypt were instructed by the then government to suspend services in selected areas and felt obliged to comply; Richtel 2012, available at www.nytimes.com/2011/01/29/technology/internet/29cutoff.html?_r=0.
- 28.
Reportedly, Tunisian suppression of online activity included bloggers and others in Tunisia being arrested and attacked for their online activities; stolen usernames and passwords were used to close down Email accounts but the regime did not close down the Internet entirely; see O’Brien 2011, available at www.cpj.org/internet/2011/01/will-tunisias-internet-revolution-endure.php.
- 29.
See Barnard and Mackey 2012, available at http://thelede.blogs.nytimes.com/2012/11/29/internet-outage-reported-across-syria/, and Whittaker 2012, available at www.zdnet.com/syria-suffers-internet-blackout-cut-off-from-the-outside-world-7000008100/.
- 30.
Sutter 2011, available at http://edition.cnn.com/2011/TECH/web/02/22/libya.internet/index.html.
- 31.
Williams 2011, available at www.telegraph.co.uk/technology/news/8862335/Cameron-told-not-to-shut-down-internet.html.
- 32.
Note that under Article 35 of the Constitution of the International Telecommunication Union as amended by the 2010 Plenipotentiary Conference, “Each member state reserves the right to suspend the international telecommunication service, either generally or only for certain relations, and/or for certain kinds of correspondence, outgoing, incoming, or in transit, provided that it immediately notifies such action to each of the other member states through the Secretary-General.” See also Article 7 of the International Telecommunication Regulations, Dubai, 2012 as to notification of such action to the Secretary General.
- 33.
2000 c. 23. The Act addresses, so far as is relevant, interception of communications, the acquisition and disclosure of data relating to communications, surveillance, the acquisition of means whereby the electronic data protected by encryption or passwords may be decrypted or accessed and associated matters including in relation to the security services.
- 34.
The Code was issued in 2010 and is available at www.homeoffice.gov.uk/publications/counter-terrorism/ripa-forms/code-of-practice-covert?view=Binary. The Code provides guidance to public authorities on the use of covert surveillance likely to result in the obtaining of private information about individuals.
- 35.
See for example Özgür Gündem v. Turkey 2000-III; 31 EHRR 1082, paras 41–46.
- 36.
Surek v. Turkey (No. 1) 1999-IV, GC at para 61.
- 37.
Harris et al. 2009, p. 465.
- 38.
Harris et al. 2009, p. 465.
- 39.
Ekin v. France, 2001-VIII; 35 EHRR 1207, para 48.
- 40.
Harris et al 2009, p. 476 where the cases of Purcell v. Ireland, 15404/89, 70 DR 262 (1991), and Brind v. UK, 18714/91, 77-A DR 42 (1994) are cited.
- 41.
Cronin 2011, p. 140–141.
- 42.
European Convention, Article 8(1).
- 43.
Copland v. UK, Application No. 62617/00, ECtHR Judgment dated 3 April 2007, para 41, deciding that Emails sent from work and information derived from the monitoring of personal Internet usage should be protected under Article 8, ECHR.
- 44.
Klass v. Federal Republic of Germany, A 28 (1978); 2 EHRR 214, para 41 PC.
- 45.
AD v. Netherlands, 21962/93, 76A DR 157 (1994).
- 46.
These include that the interference must be necessary in a democratic society in the interests of national security, public safety or for the prevention of disorder or crime; European Convention, Article 8(2).
- 47.
See also Tallinn Manual, commentary accompanying Rule 87, para 3.
- 48.
Geneva Convention IV, Article 27(4).
- 49.
Pictet 1958, p. 207. Pictet regarded these supreme rights as being endangered by assigned residence or internment but not, generally speaking, by, e.g. periodic reporting to police authorities, carrying an identity card or a ban on carrying arms. The Tallinn Manual finds a Rule that the “Occupying Power may take measures necessary to ensure its general security, including the integrity and reliability of its own cyber systems”; Tallinn Manual, Rule 89. The Manual cites as examples of steps that might be taken in accordance with this rule shutting down communications systems used to transmit information about the Occupying Power to insurgent forces; prohibiting email references to military movements, posture, weapons, capabilities, or activities; implementing militarily necessary restrictions on the use of certain servers; imposing time restrictions on use of the Internet when military authorities need bandwidth; or placing restrictions on use of the Internet by individuals that pose a security threat; Tallinn Manual, commentary accompanying Rule 89, para 3. In applying the law of armed conflict’s norms, these are the kinds of step that will in practice be applied when necessary by states in occupied territory. Such steps are relevant to the threats and security concerns the Occupying Power may expect to face and it is the fact that such measures are relevant, practicable and yet limited to that which is necessary in the circumstances that demonstrates that the law of armed conflict norms will apply to the stated circumstances.
- 50.
Consider Vöneky 2013, pp. 649–650.
- 51.
Note that a journalist who witnesses atrocities while undertaking his journalistic duties can only be compelled to testify in criminal proceedings for an international crime if it is shown that the evidence sought is of direct and important value in determining a core issue in the case. In addition, it must be shown that the evidence sought cannot reasonably be obtained elsewhere; Prosecutor v. Radoslav Brdjanin and Momir Talić, Case Number IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002, paras 34–50.
- 52.
See Geneva Convention I, Articles 49–54; Geneva Convention II, Articles 50–53; Geneva Convention III, Articles 129–132; Geneva Convention IV, Articles 146–149 and API, Articles 85–88.
- 53.
The first breach consists of the activity that amounts to a war crime and the second breach consists of the failure to take the action prescribed by the relevant treaty to repress such war crimes.
- 54.
Consider, for example, the basis of the revelations by Edward Snowden, including as to intelligence gathering by US agencies and as to information-gathering allegedly being undertaken by Britain from an undisclosed base in the Middle East reported in Campbell et al. 2013, available at www.independent.co.uk/news/uk/politics/exclusive-uks-secret-mideast-internet-surveillance-base-is-revealed-in-edward-snowden-leaks-8781082.html.
- 55.
Whether such information is in fact taken into account to the degree that arguably it should is, of course, a distinct issue. It should, however, be part of the ‘information from all sources’ referred to in UK statement (c) made on ratification of API on 28 January 1998.
- 56.
Consider, for example, the proceedings taken by the UK Attorney General against Peter Wright in 1987 and 1988 in respect of the publication of the former MI5 agent’s memoirs in Australia, proceedings that eventually had to be abandoned. By late 1987, the book was the number one hardback best seller in the US selling 400,000 copies; Norton-Taylor 1988, available at www.guardian.co.uk/fromthearchive/story/0,12269,1326319,00.html.
- 57.
With regard to the adverse effects of inaccurate media reporting both of issues of fact and of the applicable law, see Newton 2013, pp. 248–249.
- 58.
2009 c. 25.
- 59.
Coroners and Justice Act 2009, Sections 1(1) and (2).
- 60.
Coroners and Justice Act 2009, Section 5(1). To ensure compliance with the requirements of the European Convention, the second purpose should be interpreted as discovering in what circumstances the deceased came by his or her death; ibid. Section 5(2). It should be noted that the Act includes provision specifically applicable to deaths of armed forces personnel on active service at the time of their death.
- 61.
Equivalent but not identical arrangements for the conduct of investigations in Scotland are to be found in the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.
- 62.
A Coroner’s investigation into the death of a member of an adverse party to an international armed conflict is unlikely to take place if the death took place abroad, simply because no body is likely to be in the senior coroner’s area. However, friendly fire incidents in which a member of the UK armed forces is killed as a result of an act of another UK service person or of friendly forces may give rise to a Coroner’s investigation. Such an investigation may, in order to determine the circumstances of the death, have to inquire into targeting decision-making and other military matters involving another state.
- 63.
The regulations that prescribe the administrative and other arrangements for Service Inquiries are the Armed Forces (Service Inquiries) Regulations 2008 (S.I.2008/1653).
- 64.
2005 c. 12. For an explanation of the legislation, see the Explanatory Notes, available at www.legislation.gov.uk/ukpga/2005/12/notes/contents.
- 65.
The transcripts and evidence called in the al-Sweady Public Inquiry can be viewed at www.alsweadyinquiry.org. The Public Inquiry was established pursuant to a statement on 25 November 2009 by the then Secretary of State for Defence and is, at the time of writing, considering evidence relating to allegations that Iraqi nationals were detained by British soldiers in Iraq in 2004 and were unlawfully killed at a British camp and that others were mistreated at that camp and at a detention facility. The Inquiry was established under the Inquiries Act 2005 and is chaired by a retired High Court judge.
- 66.
1957 c. 52. See in particular Section 1.
- 67.
1995 c. 27. See in particular Section 1.
- 68.
2001 c. 17.
- 69.
International Criminal Court Act 2001, Sections 50–74.
- 70.
See Rome Statute, 1998, Article 17.
- 71.
The additional significance of this statement is that the UK service justice system permits trials to be undertaken anywhere in the world. For a discussion of the detailed provisions relating to war crimes, crimes against humanity and genocide, see Corn et al. 2012, pp. 466–500.
- 72.
As to the offences for which domestic legislation should permit the domestic criminal courts of a state to entertain proceedings, see Vöneky 2013, pp. 670–682.
- 73.
Consider, for example, proceedings brought by Susan Smith, the mother of a British soldier killed in a Snatch Land Rover in Iraq; ‘Mother of British Soldier Killed in Snatch Land Rover wins legal battle, The Telegraph 2009, 10 July, available at www.telegraph.co.uk/news/newstopics/onthefrontline/5795852/Mother-of-British-soldier-killed-in-Snatch-Land-Rover-wins-legal-battle.html. In the resulting proceedings taken by relatives of soldiers killed by improvised explosive devices (IEDs) while travelling in such Snatch Land Rovers, the claimants argued that the UK Ministry of Defence had failed to provide suitable armoured equipment to protect against IEDs, had thus been negligent and had breached the Article 2, European Convention, right to life. In an associated case relatives of soldiers killed or injured in a Challenger II tank in Basra, Iraq, as a result of a friendly fire incident claimed that the UK Ministry of Defence had been negligent by failing to provide available technology and training to protect against the risk of friendly fire. The claims in negligence raised issues of combat immunity. In very broad terms, the combat immunity principle under English law precludes claims in negligence relating to decisions made in the conduct of combat. The Supreme Court addressed the jurisdiction issue in the light of the Al Skeini judgment of the European Court, and concluded that “the jurisdiction of the United Kingdom under Article 1 of the Convention extends to securing the protection of Article 2 to members of the armed forces when they are serving outside its territory”; Smith and others, Ellis, Allbutt and others v. Ministry of Defence [2013] UKSC 41, judgment dated 19 June 2013, para 55; in relation to planning for and conduct of military operations in armed conflict “the Court must avoid imposing positive obligations on the State […]. which are unrealistic or disproportionate” but must give effect to those obligations where it would be reasonable to expect the individual to have the protection of Article 2 of the European Convention. It would therefore be easier to find the decision beyond the scope of Article 2 if it relates, e.g. to procurement or higher level command of military operations where the decision is closer to the exercise of political judgment or policy or if the decision is by a person actively engaged in contact with the enemy; see Smith and others, Ellis, Allbutt and others v. Ministry of Defence para 76. On the matter of combat immunity, “The court must be especially careful, in [the case of members of the armed forces], to have regard to the public interest, to the unpredictable nature of armed conflict and to the inevitable risks that it gives rise to when it is striking the balance as to what is fair, just and reasonable”; Smith and others, Ellis, Allbutt and others v. Ministry of Defence para 100.
- 74.
See Cobain 2010, available at www.guardian.co.uk/law/2010/jul/16/army-torture-iraq-judicial-review.
- 75.
See ‘Hoon to meet shot soldier’s widow’, The Telegraph 2004, 16 January, available at www.telegraph.co.uk/news/1451830/Hoon-to-meet-shot-soldiers-widow.html.
- 76.
See R (on the application of Gentle and another) v. Prime Minister and others (2008) UKHL 20 in which the House of Lords decided that Article 2 of the European Convention does not imply any obligation for the Government to take reasonable steps to satisfy itself of the legality of an invasion of another country under international law. Consider also the US case of Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (No. 10 Civ. 1469), Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum In Support of Defendant’s Motion to Dismiss.
- 77.
Note, for example, the judgment by Lord Justice Moses in the case of Noor Khan v. Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC3728 (Admin) in which the claimant was refused permission to challenge by way of judicial review the Secretary of State’s ‘decision’ as to the passing of intelligence by officers of the Government Communications Headquarters to forces of the United States allegedly in support of US drone strikes in North Waziristan, Pakistan. The application was denied in part on the ground that any such proceedings would inevitably involve the UK courts adjudicating on the lawfulness of US military action there. Underhill v. Hernandez (1897) 168 US 25, 252 (Chief Justice Fuller) and Kuwait Airways Corporation v Iraqi Airways Co [Nos. 4 and 5] 2002 2 WLR 1353, 1362 are authorities for the proposition that courts will neither consider nor adjudicate on the sovereign acts of a foreign State. An appeal against Lord Justice Moses’ decision is pending (to be heard from 29 to 31 October 2013).
- 78.
Statute of the ICJ, Article 34(1).
- 79.
Statute of the ICJ, Article 36(1).
- 80.
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993.
- 81.
The relevant offences consist of committing or ordering to be committed grave breaches of the Geneva Conventions, violations of the laws and customs of war including the examples listed in Article 3, genocide and crimes against humanity; Articles 2–5.
- 82.
ICTY Statute, Article 9.
- 83.
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1994, 8 November 1994 (ICTR Statute).
- 84.
ICTR Statute, Articles 2, 3 and 4.
- 85.
ICTR Statute, Article 8.
- 86.
For a discussion of the Extraordinary Chambers in the Courts of Cambodia, see Kalshoven and Zegveld 2011, pp. 258–259.
- 87.
For a description of the Special Court of Sierra Leone, see Kalshoven and Zegveld 2011, pp. 259–260.
- 88.
The Special Panels for Serious Crimes in East Timor are discussed at Kalshoven and Zegveld 2011, pp. 260–261.
- 89.
See Kalshoven and Ziegveld 2011, pp. 261–262.
- 90.
Rome Statute, 1998, Article 1.
- 91.
Rome Statute, 1998, Article 17(1). In deciding whether there is unwillingness, the court will consider whether the person is being shielded from the ICC, whether there is unjustifiable delay inconsistent with an intent to bring the person to justice and whether the proceedings are not independent and impartial and were being conducted in a manner inconsistent with an intent to bring the person to justice; Article 17(2). In deciding whether there is inability, the Court will consider whether there is a total or substantial collapse or unavailability of the national judicial system such that the state cannot obtain the accused, the required evidence or otherwise cannot carry out its proceedings; Article 17(3).
- 92.
Presentation by Brigadier General Charles J Dunlap to Air and Space Conference and Technology Exposition 2005 on 13 September 2005, entitled ‘The law of armed conflict’, 1; the text is in the author’s possession.
- 93.
An example would be the deliberate placing of human shields in the vicinity of a military objective in the knowledge that their presence will affect proportionality based decision-making.
- 94.
Dunlap, n. 92 above, pp. 2–5.
- 95.
Dunlap, n. 92 above, p. 5.
- 96.
The idea of ‘legal encirclement’ reflects the notion that the military is under legal siege, that it is being pushed by people not schooled in operations but only in political correctness towards a time when it will fail in operations because the commanding officer’s authority and command chain have been compromised with tortuous rules not relevant to fighting “and where his instinct to be daring and innovative is being buried under the threat of liabilities and hounded out by those who have no concept of what is required to fight and win”; Admiral Lord Boyce, former Chief of the Defence Staff, UK House of Lords, Official Report, vol 673, c. 1236 (July 2005).
- 97.
Waters 2010, pp. 52–53.
- 98.
Such events are frequently referred to as ‘blue on blue’ incidents. They can arise for numerous reasons including, for example, defective communications, inadequate care in target observation or selection, insufficient or deficient information, enemy deception operations, inadequate equipment, inadequate training of personnel, the confused nature of the battle space and the stress of combat.
- 99.
Personal knowledge of the author who served for 30 years as a member of the RAF Legal Branch.
- 100.
It should be borne in mind that the onus of proof is likely to rest with the claimant. The claimant will need to demonstrate that civilians, civilian objects or persons or objects granted specific protection by the law of armed conflict were the object of the attack. Frits Kalshoven writes that he is not persuaded that collateral damage should be the basis for individual compensation for a violation of the law of armed conflict; Kalshoven 2007, p. 212. The nature of cyber operations may, for the foreseeable future at least, make such compensation claims problematic. Even if these things can be demonstrated, it would still be necessary to show that the case demands that compensation be paid. Note the provision in Article 90 of API for a Fact Finding Commission to enquire into facts alleged to be a grave breach or other serious violation of the Geneva Conventions or of API and consider Knut Dörmann’s criticism that only a small number of states have accepted the competence of the Fact Finding Commission and as to the unwillingness of parties to an armed conflict to request or give their consent to an investigation; Dörmann 2007, p. 238. For a more detailed discussion of the Commission’s intended operating procedures, see Bothe 2007.
- 101.
On ratification of API on 28 January 1998, UK stated, inter alia, “Military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time”; statement (c).
- 102.
“In conflict and confrontation, most actors will place considerable emphasis and dependence on the psychological rather than just the physical. All military activity, including force, will continue to be designed to influence, and is likely to be planned and executed in support of a campaign narrative”; UK MOD Strategic Trends, p. 81.
- 103.
Consider, for example, the broadcasts during World War II of William Joyce, known as Lord Haw Haw, later executed in London for treason on 3 January 1946.
- 104.
Indeed it has clearly been a critical element in combatting terrorism effectively, but for an example of an attack in late August 2012 which engaged the intended target but also caused collateral casualties that arguably damaged the broader strategic purpose, see Terrorist drone strikes get scrutiny, New York Times 2013, 6 February, available at http://politics.heraldtribune.com/2013/02/06/terrorist-drone-strikes-get-scrutiny/.
- 105.
Schmitt 2006, p. 33.
- 106.
“How horrible, fantastic, incredible it is that we should be digging trenches and trying on gas masks here because of a quarrel in a far-away country between people of whom we know nothing”; Chamberlain 1938, available at www.bbc.co.uk/archive/ww2outbreak/7904.shtml.
- 107.
For a discussion of rules of engagement, see Solis 2011, pp. 490–512. “The need to provide a regulatory framework for the conduct of all military operations based on the law of armed conflict principles is recognized as essential to disciplined and effective operations”; Corn et al. 2012, pp. 128–129.
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Boothby, W.H. (2014). War in the Spotlight. In: Conflict Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-002-2_11
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