The International Legal Prohibition on Perfidy and Its Scope in Non-International Armed Conflicts

by Robert Lawton Pratt

Since the beginning of its conflict with al Qaeda, the United States has faced an enemy that relies on its ability to blend into the civilian population to mount attacks and sustain its war-fighting efforts. Disguised as civilians, members of the group have gained proximity to valuable targets and conducted deadly attacks they could not have achieved if they wore their terrorist affiliations openly. In Iraq, Afghanistan, and elsewhere, other terrorist and insurgent groups also rely on similar tactics to inflict maximum damage. Suicide bombers use civilian objects to attack civilian targets, including markets, mosques, and other public places. Combatants hide amongst the local population, cloaking themselves in the legal protections afforded civilians. Facing these enemies in dense, urban environments, U.S. forces often have to work within and rely on their civilian surroundings to attack these combatants and to protect themselves.

These battlefield realities raise questions about compliance with the law of armed conflict—particularly with the prohibition on perfidy and its application in these contexts. Article 37 of Additional Protocol I of the Geneva Conventions defines perfidy as any act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Effectively, this provision prohibits parties to armed conflicts between states (i.e., international armed conflicts or “IACs”) from abusing legal protections afforded civilians and some combatants in order to harm the enemy. Examples of this crime include feigning surrender or injury to lure an enemy into an attack or feigning civilian status to gain and betray the confidence of the enemy.

Though both customary international law and Additional Protocol I prohibit perfidy in IACs, whether and to what extent this prohibition applies within the context of non-international armed conflicts (NIACs) remains relatively unclear. NIACs, such as the United States’ conflict with al Qaeda, include conflicts between states and non-state actors or between non-state actors only. To clarify the extent to which the perfidy prohibition applies in this conflict context, this article begins by presenting the legal and practical arguments for and against applying the prohibition on perfidy to NIACs and subsequently assesses the prohibition’s scope using the recent U.S. military commission case against the U.S.S. Cole bombers and the CIA’s involvement in a Mossad car bomb operation that killed a Hezbollah leader. From this analysis, it is clear that the international legal prohibition on perfidy extends to NIACs through customary international law and that a critical component of the crime is the attacker’s abuse of law of war protections.

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VOLUME 56 :: No. 2

The Influence of History on States’ Compliance with Human Rights Obligations

by Adam S. Chilton & Eric A. Posner ~ Mar 02, 2017

 

There is considerable variation in countries’ respect for human rights. Scholars have tried to explain this variation on the basis of current conditions in countriessuch as democracy and civil warand events from the recent pastsuch as ratification of human rights treaties. This literature has ignored the influence that history may have on human rights performance. Drawing on the literature on economic developmentwhich has shown that institutions, events, and conditions from the distant past heavily influence the rate of economic growth across countries todaywe argue that scholars should study whether the same factors have influenced modern human rights performance. Our exploratory look at the data suggests that respect for human rights today may be related to the geographic location of affected populations centuries ago, the nature of the institutions that emerged at that time, and cultural traits that have been passed down from generation to generation. These preliminary results suggest that human rights scholars could make substantial progress toward understanding states’ human rights practices by building on the work of development economics.

Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands

by John D. Ciorciari & Anne Heindel ~ Mar 02, 2017

Whether they appear as witnesses, victim participants, or civil parties in mass crimes proceedings, victims can contribute vital evidence and insight bearing on the guilt or innocence of the accused. Their testimony can contribute to the truth-telling function of the process and, under some circumstances, may help them cope with trauma. However, victim testimony can also lead to re-traumatization and may compromise the fairness or efficiency of the judicial process if emotional distress undermines its relevance, credibility, or focus. Inherent tensions exist because the aspects of the courtroom experience that tend to threaten victimssuch as pointed questioning and cross-examination on the details of painful eventsare essential for a fair trial. This article discusses the benefits and challenges of engaging victims in international and hybrid criminal trials and examines how these issues have been addressed in the courtroom. We devote particular attention to the Extraordinary Chambers in the Courts of Cambodia (ECCC), a UN-backed hybrid court established to address crimes of the Pol Pot era. The ECCC has tried to facilitate victim testimony through formal procedures and informal trial management strategies, including two important innovations in international criminal justice, special “victim impact hearings” and “statements of suffering,both of which allow civil parties to describe harms they endured under Khmer Rouge rule before judgment. We argue that while effective trial management and innovative strategies can help reduce the tension between survivors’ interests and the rights of the accused, the ECCC’s experience reinforces the difficulty of featuring victim narratives in criminal trials.

Shattering the Glass Ceiling in International Adjudication

by Nienke Grossman ~ Mar 02, 2017

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon, and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench, and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.

The Elite Threat to Constitutional Transitions

by William Partlett ~ Mar 02, 2017

Democratic constitutional transition conjures up images of a better form of politics involving enhanced popular participation and rational deliberation. But what institutions should be used to create this higher form of politics? The universal answerfocusing primarily on enhancing popular participationargues that extraordinary institutions such as constituent assemblies and referendums are preferable to ordinary legislatures in creating this kind of elevated politics. This universal account is drawn from the theory and practice of revolutionary constitution-making in eighteenth-century America and France and its legacy in Western developed democracies today.

Recent experience of post-communist constitution-making, however, challenges the universality of this answer. In this context, extraordinary institutions did not elevate the politics of constitutional transition. Instead, they did the opposite, providing a platform for partisan elites to claim popular mandates and then dominate constitution-making. These self-interested elites then abused this dominant position to insert constitutional rules into new constitutions that undermined individual rights and entrenched their own power. Ordinary legislatures, by contrast, were able to help build more impartial constitutional orders by constraining elite self-dealing and unilateralism in constitutional drafting.

This post-communist experience suggests the dangers of transplanting this revolutionary constitution-making tradition into post-authoritarian contexts. In these settings, an extraordinary and revolutionary form of constitution-making politics can enable elite self-dealing. Post-communism therefore suggests that an ordinary form of constitution-making politicscentered around ordinary legislatures and ordered politics as bargainingcan help to solve this elite threat and therefore encourage a more deliberative, popularly engaged, and therefore successful process of constitutional transition.

Disaggregating the Human Rights Treaty Regime

by Kevin L. Cope & Cosette D. Creamer ~ Mar 02, 2017

In their essay, The Influence of History on States’ Compliance with Human Rights Obligations, Adam Chilton and Eric Posner draw on development economics to note that modern human rights practices are partially a function of phenomena from distant history: colonization patterns, geography, and old institutions. They contrast the predictive power of these factors with that of participation in the modern international human rights legal regime. They conclude that ratified human rights instruments in the aggregate have had little effect on governments’ rights practices and that researchers should therefore turn to factors other than treaties for robust explanations (if not solutions) for the wide variation in human rights practices across states. In this response essay, we disaggregate several aspects of the human rights regime that much of the existing scholarshipincluding The Influence of Historyhas largely aggregated. In doing so, we show that Chilton and Posner’s aggregation obscures nuances of treaty engagement and effects that might meaningfully implicate the normative role ofthe human rights regime. We argue that the “treatment” of a human rights institution is not synonymous with the point of ratification. As others have noted, ratification commonly works through international and domestic processes and institutions and operates over a long time-horizon, extending well before and after the moment of legal obligation. We conclude that, to understand the process by which treaty engagement might influence rights conditions, scholars should build on those studies that recognize and take advantage of this insight.

Explaining Human Rights Abuses: Comparing Contemporary Factors and Historical Factors

by Yonatan Lupu ~ Mar 02, 2017

Why and when do governments abuse human rights? Eric Posner and Adam Chilton argue that long-term historical factors shape contemporary human rights practices. They provide novel evidence that many historical variables emphasized in the economic development literature are correlated with contemporary human rights practices. This article continues the process of testing their argument by conducting several statistical analyses. The analysis yields several key findings. First, the historical variables emphasized by Posner and Chilton, collectively, are fairly powerful in terms of predicting human rights abuses. Second, the historical variables perform less well at predicting contemporary abuses in more populous countries. Third, contemporary judicial independence predicts contemporary abuses in ways not captured by historical variables. Fourth, historical variables perform relatively poorly at predicting abuses during civil wars, when abuses are often at their worst. Finally, many of the individual historical variables do not add significant explanatory power to models that include contemporary variables. The key exceptions are settler mortality and European share of the population during colonization, suggesting that future analyses of the roles of these factors may be especially helpful in improving our understanding of these phenomena.

History, Geography, and Rights: A Response to Chilton and Posner

by Mila Versteeg ~ Mar 02, 2017

Professors Chilton and Posner argue that a major predictor of contemporary human rights practices can be found in states’ own distant pasts. Countries that faced adverse geographic, demographic, or institutional conditions centuries ago tend to have worse human rights practices today than those that faced favorable conditions. These conditions can affect contemporary human rights practices regardless of modern-day interventions, such as international human rights treaties.

This claim is important, but it also leaves many questions unanswered. This response Essay focuses on two such unanswered questions. First, Professors Chilton and Posner do not theorize the mechanisms through which historical conditions affect contemporary human rights practices. This Essay draws on the development economics literature to articulate some preliminary hypotheses on how fixed geographic and historical factors can affect contemporary human rights. More generally, it suggests that, if we want to develop a research agenda that incorporates history into our understanding of contemporary human rights practices, we need theory to explain how fixed historical and geographic factors affect contemporary human rights.

Second, Chilton and Posner do not address whether historical trends can be reversed. This Essay focuses on this question by drawing on the concept of critical junctures. Critical junctures are transformative moments in a nation’s history during which there exist opportunities to reverse deeply rooted historical trends. In the spirit ofChilton and Posner’s article, it takes seriously the idea that history matters. But unlike Chilton and Posner, who focus on path dependence, the idea of critical junctures suggests that there exist opportunities for change. This Essay illustrates the potential importance of critical junctures by exploring the development of gay rights in Argentina and South Africa, two countries with long histories of conservative sexual norms and repressive anti-gay laws, which nonetheless became global trailblazers on gay rights. These case studies provide important insights into the pathways through which historical trends can be reversed. This Essay concludes that, if human rights scholarship is to take history seriously, it should include the study of critical junctures, and not just path dependence.

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