Saturday, May 26, 2018

Complexities under international criminal law

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The nature of the current world politics is highly dynamic and unstable. The international security environment now pays a significant importance to non-state actors. Since traditional wars via military conquests are long gone, the global powers find it very useful to control rebel groups and/or hire private military corporations to fight on behalf of the cause that the controlling power holds - regime change for example. Within this context, what we witness in the current era is the significant rise in proxy wars around the world. The crises in Yemen and Syria are the most glaring examples.

The concepts of 'effective control' and 'overall control' are crucial to understand the concept of proxy war. Effective control refers to support for rebel forces via economic and/or military means over a period of time whereas overall control means going beyond mere financing and equipping of such forces and involves participation in the planning and supervision of military operations.

Unfortunately, the current international legal system does not recognize either effective control or overall control element of proxy wars, and this creates a gap in protection for civilians. Since an overall or effective control relationship with a third party cannot be easily established, international community is largely unwilling to recognize a law of occupation by proxy. Thus, states that wage and sustain proxy wars can deny their obligations as occupying powers.

There are few complexities in criminalizing proxy war. First of all, there is a strong voice among the international legal bodies behind supporting proxy wars in specific contexts. The ability of a state to occupy another through a non-state actor was recognized by the International Criminal Tribunal for the former Yugoslavia. But even though a proxy's cause may be just and the benefactor's interests legitimate, instigating an armed response to serve those interests would be morally wrong and ethically unacceptable.

 The reason it is wrong is that the conflict would not have otherwise occurred. Because it would not have occurred otherwise, the benefactor's interest then stands as the cause for the war. Given that it is an unjust cause for war, the instigation is therefore unjust.

Secondly, United Nations Security Council will advance occupation by proxy only if a politically insignificant conflict arises in future. Where the crisis is sensitive and a big power is involved, Security Council will undoubtedly remain silent.

 For example, Eastern Ukraine sits in the uncomfortable position where the UNSC cannot respond under Chapter VII due to Russia's veto and, nevertheless, the Donetsk People's Republic and Luhansk People's Republic cannot currently be proven to be under the overall control of Russia.

Thirdly, occupation under the law may be factual but enforcement of the obligations require international will and cooperation. Declaring that a non-state actor is under overall control may be a step too far for many during the conflict. This is despite the advantages and protections the law of occupation brings to a local population under threat.

Finally, the present international legal system is obscure to a great extent in determining what constitutes effective control. The simple fact of providing support to a proxy does not mean that support is causally connected to any harms caused by the proxy.

For example, The U.S. has provided targeting information to the Saudis in Yemen whose execution would not involve harm to civilians. The fact the Saudis attack other targets where civilians are harmed does not necessarily mean the United States should cease providing information on targets where they are not harmed.

The question then is how does one give up one's innocence responsibly? One could argue that as long as one creates more good than harm, the political or military leader has done no wrong. However, such a standard sets conditions for greater harms that are not permissible.

The difficulty with this view is that it only concerns itself with consequences. It does not concern itself with how those consequences come about. As such, no particular measure would be morally off-limits.

The writer is currently pursuing MSS in International Relations at University of Dhaka

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