magnify

The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

Print Friendly
 
Tags: ,

Announcements: EJIL:Live!; CfP International Law Weekend (NYC); CfA Scholarship Oxford Masters in Int’l Human Rights Law; BIICL Grotius Lecture (London); CfP on Protection of Cultural Heritage

Published on February 28, 2015        Author: 

1.  In case you missed it, a new episode of EJIL: Live!, the Journal’s official podcast, is now available online. In this episode EJIL’s Editor-in-Chief, Prof. Joseph Weiler interviews Oisin Suttle of the University of Sheffield. They engage in an in-depth discussion of Suttle’s article, “Equality in Global Commerce: Towards a Political Theory of International Economic Law”, which appears in Vol. 25, Issue 4. The interview was recorded at the European University Institute in Florence, Italy.

2.  Call for Proposals, International Law Weekend 2015 (ILW 2015) – the premier international law event of the fall season  – is scheduled for November 5-7, 2015, in New York City.  The event is sponsored by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). The theme for 2015 is Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers. ILW 2015 will explore the many roles that international law plays in addressing global challenges. The aim is to provide an opportunity for discussion and debate about the ways in which international law provides fundamental tools and mechanisms to address emerging global issues. ILW 2015 will offer engaging panels on current problems and innovative solutions in both public and private international law.  Panel proposals may concern any aspect of contemporary international law and practice including, but not limited to, international arbitration, international environmental law, national security, cyber law, use of force, human rights and humanitarian law, international organizations, international criminal law, international intellectual property, the law of the sea and outer space, transnational commercial and trade law. We expect the audience to include practitioners, academics, UN diplomats, business leaders, federal and state government officials, NGO leaders, writers, journalists, and interested citizens. We plan to have a broad array of both public international law and private international law topics. The ILW Organizing Committee invites proposals to be submitted online on or before Friday, March 20, 2015 via the ILW Panel Proposal Submission Form located here. ILW 2015 is scheduled to be held at 42 West 44th Street on Thursday evening, November 5, and at Fordham Law School at Lincoln Center on November 6 – 7, 2015. For questions regarding ILW 2015, please contact conferences {at} ilsa(.)org.  The 2015 ILW Program Committee Members are Chiara Giorgetti (University of Richmond Law School), Jeremy Sharpe (Office of the Legal Adviser, U.S. Department of State), David Stewart (President ABILA, Georgetown University Law Center), Santiago Villalpando (Office of Legal Affairs, United Nations), and Tessa Walker (ILSA).

3.  Following an application to the Commonwealth Scholarship Commission, Oxford University is pleased to report that funding has been secured for ten scholarships for candidates from selected developing African and South Asian Commonwealth countries to study for the part-time Master’s in International Human Rights Law starting September 2015.  Admissions are now open and will close at noon on 17 April 2015.  For full details, including eligibility criteria and how to apply, please visit here.

4.  The British Institute of International and Comparative Law announces the Annual Grotius Lecture, Squaring the Circle? Fighting Terrorism whilst Respecting Fundamental Rights, 26 March 2015, 17:30-18:30. This year’s Lecture will be presented by Eleanor Sharpston QC, Advocate General at the Court of Justice of the European Union. For more details and to register, visit here.

5.  Call for Papers ‘Terrorism, Non-International Armed Conflicts & the Protection of Cultural Heritage’. Santander Art and Culture Law Review is pleased to invite contributions to its second issue of 2015 which will deal with the role of international law in the protection of cultural heritage in the event of non-international conflicts and terrorism. Emerging as well as young scholars and practitioners are encouraged to contribute. The deadline for submission of manuscripts is June 30, 2015. Decision letters will be provided to author(s) by August 15, 2015. More information here.

Print Friendly
Filed under: Announcements and Events
 

The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

Print Friendly
 

IHL Does Authorize Detention in NIAC: A Rejoinder to Rogier Bartels

Published on February 24, 2015        Author: 

We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.

Equal protection versus equal status

The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.

As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:

If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.

The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier: Read the rest of this entry…

Print Friendly
 

Announcements: New Episode of EJIL:Live!; Event on TTIP (London); Fellowships on Int’l Rule of Law (Berlin); CfP on European Law; CfP for Conference on Public Law and Uncertainty (NY)

Published on February 21, 2015        Author: 

1.  A new episode of EJIL: Live!, the Journal’s official podcast, is now available online. In this episode EJIL’s Editor-in-Chief, Prof. Joseph Weiler interviews Oisin Suttle of the University of Sheffield. They engage in an in-depth discussion of Suttle’s article, “Equality in Global Commerce: Towards a Political Theory of International Economic Law”, which appears in Vol. 25, Issue 4. The interview was recorded at the European University Institute in Florence, Italy.

2.  The International Law Programme at Chatham House and Herbert Smith Freehills LLP are co-hosting an event on 4 March 2015  – ‘TTIP: Shaping the Future of Investor−State Dispute Settlement?’. This event will bring together voices from a broad range of stakeholders including UK government, industry and civil society. The expert panel will explore whether the proposed ISDS in the Transatlantic Trade and Investment Partnership can strike an adequate balance between investment protection and safeguarding the right to regulate in the public interest.The event will take place from 18:00 to 19:30 at Chatham House in St James’s Square, London. Attendance is free but prior registration is required. For further details and to register see here.

3.  The Research Group “The International Rule of Law – Rise or Decline?“ in­vites applications for three 12-24 months Fellowships in International Law or International Relations from 1 October 2015. The Group (Krieger, Nolte, Zim­mermann (IL), Jachtenfuchs, Liese, Zürn (IR)) examines the role of interna­tional law in a changing global order. Develop­ments in recent years give rise to the ques­tion whether the move towards an international rule of law, which seems to continue in some areas, has lost momentum in others. The Re­search Group addresses these questions from a legal and a political science perspective. The working language of the group is English. Fellows will work at Humboldt University Berlin. A monthly sti­pend of EUR 2500,00 plus one round­trip is attached to the position from which all costs will have to be cove­red. Read the rest of this entry…

Print Friendly
Filed under: Announcements and Events
 

Anti-Fragmentation Strategies: the Curious Case of the EU and World Trade Law

Published on February 20, 2015        Author: 

The investor-State dispute settlement provisions of the EU’s proposed new free trade agreements with the US (the Transatlantic Trade and Investment Partnership – TTIP), Canada (the Comprehensive Economic and Trade Agreement – CETA) and Singapore (the EU – Singapore Free Trade Agreement) are receiving considerable coverage in the popular media as well as within academic circles (note the recent EJIL: Talk! posts here and here). However, these agreements include not only investor-State dispute settlement but also inter-State dispute settlement provisions which should be equally interesting to international lawyers. On the one hand these provisions provide incentives to resolve trade disputes involving big trading players bilaterally, outside the WTO’s multilateral system, while on the other hand their provisions also reflect an attempt to address problems of fragmentation within the international legal system.

As with many areas of international law, world trade law has historically been concerned with the dangers of fragmentation. While the WTO may be viewed as a ‘fragment’ of the international legal system, within the WTO there is particular worry over the role of new free trade agreements. Why, when you have a multilateral institution with a comparatively clear set of obligations and relatively effective dispute system, would you conclude free trade agreements which contain substantively similar (though often wider ranging) obligations? The fear here is of what Jagdish Bhagwati called the ‘spaghetti bowl’ – a mass of regional or bilateral agreements concluded without consideration for each other or their implications for trade, potentially increasing costs, regulation and distorting conditions of competition for traders.

The concern is not only economic (i.e. that free trade agreements will undermine the non-discriminatory backbone of the current trade settlement), it is also legal: the ‘spaghetti bowl’ can distort the coherence of a legal system and its attendant expectation of certainty as much as it can distort the conditions of competition in trade. Nonetheless, institutional deadlock at the WTO has led to a number of free trade agreements being concluded globally. Until now, cases which have involved overlapping free trade agreement and WTO obligations have been resolved on the system in question’s own terms: for example, the Argentina v Brazil, Pork Subsidies MERCOSUR tribunal using more detailed WTO provisions to interpret a Decision (para. 57) or the Appellate Body in Mexico – Soft Drinks acknowledging NAFTA obligations but not seeing any basis for adjudicating upon them directly (paras. 54-56). Read the rest of this entry…

Print Friendly
 

The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?

Published on February 18, 2015        Author: 

Angela Merkel, Chancellor of Germany, brought renewed attention at the Munich Security Conference this month to the Budapest Memorandum, an instrument adopted some twenty years ago by Ukraine, the Russian Federation, the United Kingdom and the United States.  The Chancellor said that the Russian Federation, by invading eastern Ukraine and annexing Crimea, “has broken its commitment to the Budapest Memorandum.”  Merkel asked, “Who would give up their nuclear capability if their territorial integrity were not respected?”

The Budapest Memorandum, or to give its long form title, Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), was adopted in connection with Ukraine’s agreement at the time to relinquish the nuclear weapons in its territory, these having formed a substantial part of the arsenal of the former USSR.  In its Declaration at time of accession to the NPT, Ukraine further stated that “[t]he threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from a nuclear power… will be considered by Ukraine as exceptional circumstances which jeopardize its interests.”  The Russian Federation in 2014/2015 clearly is in breach of the terms of the Budapest Memorandum.  The Russian Federation, under paragraph 1, “reaffirm[ed]” its commitment “to respect the independence and sovereignty and the existing borders of Ukraine.”  Even if crediting the Russian Federation’s arguments for use of force against Ukraine, forced annexations and separations of territory constitute breach, and of a serious character—points further addressed in my forthcoming book, Aggression against Ukraine: Territory, Responsibility and International Law. Read the rest of this entry…

Print Friendly
 

IHL Does Not Authorise Detention in NIAC: A Reply to Sean Aughey and Aurel Sari  

Published on February 16, 2015        Author: 

As noted by Sean and Aurel, the appeals proceedings in Serdar Mohammed v Ministry of Defence have sparked a renewed debate about detention in non-international armed conflict (NIAC). They have set out their arguments in an interesting article and in summary form in this post. I am not convinced by their arguments though, and despite the fact that certain provisions of the law of NIAC address the restriction of liberty or otherwise recognize that on occasion persons will be held by a party to the conflict, I do not see any authorisation for detention in the black-letter, or customary, law of NIAC. In this reply, I address some of the arguments made in favour of finding such authorisation and put forward an opposing view, in support of Leggatt J’s judgment.

Sean and Aurel, and others claiming that authorisation to detain must exist because it is (partially) regulated, fail to acknowledge that the entire body of post-WW2 IHL shows that the regulation of a situation (or behaviour) does not make the occurrence of that situation legal or authorised. The pragmatism of the ICRC and the recognition that conflicts would continue to occur and regulation of the behaviour of warring parties would continue to be necessary, despite the UN’s insistence that no further need for regulation was necessary after the adoption of the UN Charter that outlawed aggression, does not make it legal to wage war. The fact that rules were adopted for NIAC, did not give armed groups any authorisation to fights their governments (or each other). Nor did it authorise governments to take action against such armed groups. Instead, IHL explicitly recognises that sovereign States had that right, independent of IHL. Read the rest of this entry…

Print Friendly
 

Announcements: Lecture, Human Rights in Armed Conflict (Keele); CfP Transnational Law & Social Justice (London); Migration Workshop (Athens); Panel on ICC (London); New Additions to UN AV Library; CfA Max Planck Research School (Heidelberg); Seminar on Proportionality (Paris); IHL Summer School (Geneva); Sanctions Conference (London); CfP on Sociology and Int’l Law (Toronto); Conference on Urgency and Human Rights (The Netherlands); EJIL:Live! and EJIL:Live Extra!

Published on February 14, 2015        Author: 

1.  The Keele Law School and the School of Politics, International Relations and Philosophy (SPIRE) are pleased to invite you to the Inaugural Thornberry Lecture in International Law and Human Rights. The lecture will take place on Wednesday 25 February 2015, 4-6pm (Dorothy Hodgkins Building, University of Keele) and will be followed by a drinks reception. The title of the lecture by Professor Dapo Akande is ‘The Application of Human Rights Law in Time of Armed Conflict’. The Thornberry Lecture in International Law and Human Rights is an annual lecture established in 2015 by the Keele Law School and the School of Politics, International Relations and Philosophy (SPIRE). It is named in honour of Patrick Thornberry – an alumnus and Emeritus Professor of International Law at Keele – and brings to the University leading academics, thinkers and experts on major current international law and human rights issues. Register here.

2. The Transnational Law & Social Justice project seeks to study how transnational law shapes, facilitates and challenges economic, political and cultural exclusion in a fragmented legal and political landscape. Our aim is to bring together lawyers and non-lawyers, early career scholars and PhD researchers whose work examines pervasive inequalities in the transnational context. Our first event, hosted by the London School of Economics on 26-27 June 2015, will feature roundtable discussions and thematic panels exploring the methodological challenges raised by the study of transnational law and its distributional effects. The event will focus more specifically on the normative dimensions of family, marketplace and workplace regulations. In choosing these three themes our aim is to examine the effects of transnational law on individuals’ everyday life while also analysing themes that are often neglected in the global or transnational governance debates because labelled as ‘private’. Speakers include Graínne de Búrca (NYU School of Law), Priya S. Gupta (Southwestern Law School), Ralf Michaels (Duke Law School), Aukje van Hoek (Amsterdam Law School) and Peer Zumbansen (KCL). The event is sponsored by the Modern Law Review. For more information on the event including the call for papers visit here. Read the rest of this entry…

Print Friendly
Filed under: Announcements and Events
 

The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer

Published on February 12, 2015        Author: 

In a recent post on ‘The Airstrikes against Islamic State in Iraq’ (hereafter “the post”), Dapo Akande and Zachary Vermeer argue that the legal justifications given by the states intervening in Iraqseem to count against the existence of [a prohibition on intervening in civil wars] as part of contemporary international law”. The aim of this post is to question such a conclusion. It will deal with three main issues: the alleged generality of those legal justifications (1); their ability to reveal the opinio juris of the intervening states (2); and the situation in Iraq as a “civil war” in the sense of the 1975 resolution of the Institut de Droit International (IDI), which prohibits any intervention in civil wars (3).         

Generality of the legal justifications

Dapo Akande and Zachary Vermeer’s above-mentioned conclusion is based notably on the alleged “generality” of the legal justifications given by the intervening states in Iraq. After positing that Iraq is engaged in a civil war under the 1975 IDI resolution (an assumption I challenge below), they conclude that the “general” justifications offered for intervention imply that states consider that it is always legal under international law to intervene at the request of a government during a civil war. However, a closer look at the legal justifications offered, including those not mentioned in the post, reveals that, when justifying their intervention, all the states expressly referred to the objective of fighting against the Islamic State (ISIL) as the specific purpose of the consent given by the Iraqi authorities for their intervention. In other words, in the Iraqi case, the consent given by Iraq to intervene on its territory was generally considered only in relation to this specific purpose.

In the declaration of the senior US administration official quoted in the post, as in President Obama’s notification to Congress (also and only partially quoted), “[the] actions” that the United States had been invited to take at the request of the Iraqi government were clearly actions against ISIL. More precisely, in Obama’s words, they were the “necessary actions against these terrorists in Iraq and Syria”. With regard to the declaration of France, in particular the speech by the French Minister for Defence before the French Senate, the French Minister clearly stated (after the passage reproduced in the post): “I remind you: we are responding to the request for support of the Iraqi authorities to weaken the terrorist organization Daesh.” (translated from French, emphasis added). Moreover, on 19 September 2014, the French President expressly stated in an official declaration: “Yesterday . . . I announced my decision to respond to the request of the Iraqi authorities and to grant them the support necessary to fight against terrorism.” (translated from French, emphasis added). Read the rest of this entry…

Print Friendly
 
Tags: