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The Taliban’s New “Code of Conduct”, Compliance with the Laws of War and POW status

Published on August 31, 2009        Author: 

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry…

 

Sixty Years of the Geneva Conventions

Published on August 12, 2009        Author: 

On 12 August 1949 the four Geneva Convention were opened for signature. They, as we know, form the bedrock of what came to be known as international humanitarian law. They are also, to my knowledge, the first treaties ever that have become truly universal, meaning that all states in the world are parties to them (well, at least all states whose statehood is generally undisputed). The ICRC will mark the occasion with several events (more here and here).

 
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Report on UK Complicity in Torture

Published on August 5, 2009        Author: 

On Tuesday the Joint Parliamentary Committee on Human Rights published its report on allegations of UK complicity in torture. I would particularly like to draw our readers’ attention to the Committee’s legal analysis of the scope of the UK’s obligations as a matter of two treaties, the UN Convention against Torture and the European Convention on Human Rights, at para. 17 ff.

Though I am in broad agreement with the Committee’s observations, I am somewhat troubled by the emphatic nature of their conclusion that

There is therefore no room for doubt, in our view, that complicity in torture would be a direct breach of the UK’s international human rights obligations, under UNCAT, under customary international law, and according to the general principles of State Responsibility for internationally wrongful acts.

The Committee’s analysis does tend to paper over a number of very complex issues. For instance, the text of the UNCAT does not explicitly provide for a state obligation not to commit torture or not to be itself complicit in torture. Rather, it (1) provides for a positive obligation of states to prevent acts of torture within territories under their jurisdiction (Art. 2), and for a (2) positive obligation to criminalize acts of torture committed by individuals (Arts. 4 & 5). A negative obligation, and consequent state responsibility for the internationally wrongful act of torture committed by an individual whose actions are attributable to the state, is not written in the treaty. It can only be inferred from it by implication, much in the same way as the ICJ in the Bosnian Genocide case inferred a negative state obligation not to commit genocide through its organs or agents from a similarly worded treaty, the Genocide Convention.

Second, in regard of the CAT, but even more in regard of the ECHR, there is the problem of the extraterritorial application of the treaties. For instance, it is far from clear under the existing jurisprudence of the European Court (above all Bankovic) that the UK would bear state responsibility even if one of its own agents actually tortured a person held by Pakistani authorities in Pakistan (or wherever), let alone so if the UK was ‘merely’ assisting a Pakistani torturer.

Third, there is some degree of conceptual confusion in the Committee’s report between complicity as a notion of (domestic or international) criminal law applicable to individuals, and complicity as a matter of state responsibility, as set out in Article 16 ILC ASR. (Much of the same confusion was evident in the Bosnian Genocide case, on which see more here, at 680 ff). Just to give one example, Article 16 could in no way be applied to the ECHR for torture done in, say, in Pakistan or Uzbekistan, because these two states are not parties to the ECHR, and Article 16(b) requires that both the state committing an act and the state complicit in the act share the same legal obligation. It is only if Article 3 ECHR was interpreted as setting out a distinct wrongful act of state complicity in torture that the UK could be responsible, and there is no case law directly on point – and again, there is also the Article 1 jurisdiction issue.

Having said this, of course, the Committee is a political, not a judicial body, and it can’t be expected to cover all the nuances in a legal question. It will hopefully thus manage to serve its main advocacy purpose of putting further pressure on the government to disclose some of its more nefarious dealings. If, however, a case of UK complicity in an extraterritorial act of torture were to be actually litigated, particularly before the European Court, it would be far from free of any doubt.

 
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The International Minimum Standard and Investment Law: The Proof is in the Pudding

Published on August 3, 2009        Author: 

A             Background

Fair and equitable treatment provisions are found in almost all bilateral and multilateral investment treaties and many international investment agreements. Throughout the course of the last decade, this treatment standard has been frequently invoked in investor-State arbitrations. Under its aegis, tribunals have developed a number of vaguely defined sub-categories, or what have been referred to as ‘facets’ or ‘components’ of the standard, such as the obligation of the State to refrain from acting in an arbitrary manner, to afford justice and due process to foreign investors, to act transparently, and to respect the legitimate expectations of the investor (see comment entitled ‘Fools Gold? Legitimate Expectations as Understood in Glamis Gold v USA). Despite such attention, the precise application of and relationship between these components remains vague and elusive.

The task of interpreting and applying fair and equitable treatment was made more complex by the following series of events.

In 1999, an American investor brought a claim under NAFTA‘s investor protection provisions. The investor alleged, inter alia, that Canada’s regulations with respect to the importation of softwood lumber violated Article 1105 of NAFTA. Article 1105(1) provides that ‘Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.’ At the time of the arbitration, trends in the decisions of arbitral tribunals favoured interpreting fair and equitable treatment provisions as either an autonomous treaty provision or a standalone principle found in customary international law. The tribunal favoured the former, finding for the investor, but leaving the question of damages to be assessed at later date by a new tribunal.

Following the decision, and in a dramatic twist, the NAFTA parties issued a joint interpretive note clarifying their view of both Article 1105, and fair and equitable treatment and full protection and security. The note read as follows:

Read the rest of this entry…