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Sorry Sir, We’re All Non-State Actors Now: A Reply to Hill-Cawthorne and Akande on the Authority to Kill and Detain in NIAC

Published on May 9, 2014        Author: 

The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.

Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.

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‘National Minority’ Status for the Cornish – What Took So Long?

Published on May 8, 2014        Author: 

Cornish_National_TartanMedia reports of the UK government’s recent decision to grant ‘national minority’ status to the Cornish minority have questioned why such status is necessary and how Cornwall differs from other regions of the UK. The Cornish are one of the constituent peoples of the British Isles, similarly to the Welsh and Scottish.  (The Cornish national tartan is pictured left, credit.) However, unlike other Celtic minorities in the UK, the Cornish were not officially recognised as a ‘national minority’, despite attempts to be recognised under the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) since 1999 (Opinion on the United Kingdom ACFC/INF/OP/I(2002)006 para 16). In addition to a distinct language, which has been traced back to the Ninth Century, the Cornish also have a unique culture, including folklore and traditional dress, which distinguishes them from the rest of England. It is, thus, not Cornwall that has been granted ‘national minority’ status, but those inhabitants of Cornwall whose culture differs from the rest of the UK on the basis of their association with the Cornish minority. Rather than asking why the Cornish minority requires ‘national minority’ status, the more interesting question is why they weren’t recognised in the first place.

It has long been recognised in international law that ‘the existence of communities is a question of fact; it is not a question of law’ (Greco-Bulgarian Communities Case PCIJ Series B No 17 Advisory Opinion of July 31 1930, 22). Nonetheless, the recent recognition by the UK government of the ‘national minority’ status of the Cornish is a step forward if the identity of this minority group is to be preserved.  Even though States are not permitted to deny the existence of a minority to avoid international obligations, in practice such minorities must be recognised by States if their claims to the protection offered by minority rights standards are to be realised.

No definition of a minority has been agreed under international law; however, the term ‘national minority’ has a traditional usage which is linked to the League of Nations minority protection regime in the inter-war period. ‘National minorities’ have, therefore, been understood to comprise traditional or autochthonous minorities, who have traditionally inhabited a specific area, have been present in the State since the State’s borders were formed and have an identity which differs from the majority population in terms of culture, language and/or religion. A number of States have adopted the traditional, restrictive, interpretation of the term ‘national minority’ to define the scope of application of the FCNM. On the basis of their historic connection to Cornwall and distinct identity which differentiates them from the rest of the English population, the Cornish minority would clearly satisfy the traditional understanding of the term ‘national minority’.

The UK was able to avoid recognising the Cornish minority under the FCNM as a result of the failure of States to agree a definition of the scope of application of the instrument at the time of drafting. States are granted a margin of appreciation to interpret the scope of the term ‘national minority’ provided that the definition adopted satisfies the good faith requirement (article 2 FCNM).  Nonetheless, the Advisory Committee to the FCNM (AC-FCNM) has consistently stressed that  ‘the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions’ (‘Opinion on the United Kingdom’ para 12) and has encouraged States parties to adopt a wide interpretation of the FCNM’s scope of application. Read the rest of this entry…

Filed under: EJIL Analysis
 

Does IHL Provide a Legal Basis for Detention in Non-International Armed Conflicts?

Published on May 7, 2014        Author: 

In their excellent posts on Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), both Kubo Mačák and Marko recognise the importance and hugely impressive analysis of Mr Justice Leggatt’s judgment. We will not reiterate the coverage of the judgment. Rather, we wish to focus on one part of it, that is, the question of whether international humanitarian law (IHL) provides a legal basis for detention in non-international armed conflicts (NIACs). Whilst Kubo also focuses on this issue in his post, we will take the opposite view to him, and thus will argue that Mr Justice Leggatt correctly concluded that IHL does not contain a legal basis to detain in NIACs. To be clear, our argument is not that detention in NIACs is necessarily unlawful. The argument is simply that authorization to detain in a NIAC cannot be found in IHL, but must rest elsewhere, principally in domestic law (either of the state that detains or of the state on whose territory the detention occurs). Exceptionally, the authorization to detain may arise out of other branches of international law, in particular, it may be contained in United Nations Security Council resolutions authorizing the use of force.

It is worth spending a few moments considering why we are even asking the question whether IHL contains a legal basis for detention in NIACs. In the particular context of the Sedar Mohammed case – and other detention in armed conflict cases brought under the European human rights system – the question is relevant in considering whether Art 5 ECHR might be regarded as inapplicable in NIACs by virtue of the argument that more specific rules of IHL apply to regulate those detentions. More generally, international human rights law (IHRL) requires that any deprivation of liberty be both lawful and non-arbitrary and in the context of NIACs, it is natural to ask first whether the legal basis might be found in IHL, as it can for international armed conflicts (Arts 27(4), 42-3 and 78 GCIV; Art 21 GCIII).

In the Serdar Mohammed case, Mr Justice Leggatt provided a number of reasons for rejecting the MoD’s contention that IHL provides a sufficient legal basis for detention in the context of NIACs. We will address the key ones here. First, he considered that such a legal basis would have been made explicit in the relevant treaty provisions (common Article 3 and Additional Protocol II) had that been intended. This is a reasonable point – coercive powers should not too readily be read into applicable treaty rules without clear evidence that this is the collective intentions of the states parties. Read the rest of this entry…

 

Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

 

No Legal Basis under IHL for Detention in Non-International Armed Conflicts? A Comment on Serdar Mohammed v. Ministry of Defence

Published on May 5, 2014        Author: 

On any account of the events that transpired one early April morning four years ago in northern Helmand in Afghanistan, the plight of Mr Serdar Mohammed is not to be envied. For reasons that are still in dispute, he was captured by the UK armed forces close to his home. Shot at, bitten by a military dog, and finally caught, he was brought into UK custody on suspicion of being an insurgent, perhaps even a Taliban commander. In the end, he was detained on British military bases for over 100 days before being handed over to the Afghan authorities.

Mr Mohammed brought a claim before the High Court of Justice of England and Wales for unlawful detention, seeking compensation from the UK government. In Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a judgment delivered last Friday, Mr Justice Leggatt decided that Mr Mohammed’s detention after the initial 96 hours violated Article 5 of the European Convention on Human Rights and that he was therefore entitled to compensation.

The judge openly says at the outset of the ruling that it is ‘a long judgment which discusses many issues and arguments’ (para. 2). Unlike Marko’s excellent post, which provides a more comprehensive overview of the judgment, my text takes a closer look at one of the key issues in the judgment only. This is the question of lawfulness of detention of persons in non-international armed conflicts under international humanitarian law (IHL), summarised by Marko in section 5 of his post.

It is well known that while the law of international armed conflict (IAC) provides an express legal basis for the detention of civilians in Articles 42 and 78 of the Fourth Geneva Convention, there is no counterpart in the treaty norms regulating non-international armed conflict (NIAC). The MOD argued that a power to detain is nonetheless implicit in Common Article 3 and Additional Protocol II. Although Mr Justice Leggatt acknowledged academic opinion in support of the MOD view, quoting extensively from texts written by Jelena Pejić and Jann Kleffner (see para. 240), he eventually came down against it on the basis of five very articulate reasons (paras. 241–251).

I will not revisit the academic debate on this topic (for which, in addition to the texts quoted in the judgment, see, e.g., here, here, or here), but rather subject the specific reasons advanced by Mr Justice Leggatt to somewhat closer scrutiny. It appears to me that even though the reasons are very well made, there are strong considerations not reflected in the judgment, which militate in favour of the opposite view.

Read the rest of this entry…

 

High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan

Published on May 3, 2014        Author: 

Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.

Here are some of the highlights of the Court’s analysis:

(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.

(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.

(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .

(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.

(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.

(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.

The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.

I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.

Here are the highlights, with some commentary:

Read the rest of this entry…

 

Announcements: International Environmental Law Conference, Corporate Social Responsibility Workshop, Symposium: The End of Treaties?, ASIL Research Forum, University of Amsterdam Workshop

Published on May 2, 2014        Author: 

1.  Combustion: Energy, Resources and Environmental Issues Igniting International Law, November 13-15, 2014 – Ottawa, Ontario. The Canadian Council on International Law is pleased to announce its 43rd Annual Conference: “Combustion: Energy, Resources, and Environmental Issues Igniting International Law”. Practitioners and legal scholars are invited to submit paper and presentation proposals relating to the theme of energy, natural resources, and related environmental issues. The 2014 Annual Conference will explore the role of international law in global energy transactions, resource extraction and environmental issues. Topics will include but are not limited to the arbitration of mining and energy disputes, the role of the private sector in sustainable development, civil and criminal liability in the extractive industries, and the illegal wildlife trade. The Conference invites the active participation of practitioners, academics, and graduate students in the international legal community. Paper proposals or summaries of proposed presentations in English or French should be no longer than a single page in length and should include a biographical statement or curriculum vitae.  Proposals are due June 9, 2014 and should be sent to manager {at} ccil-ccdi(.)ca with “Annual Conference Call for Papers” in the subject line. Please see the website for more information.

2.  The Centre for International and Public Law (CIPL) at Brunel University and the Commercial Law Research Group, Brunel Law School, Brunel University, London, are organising a Reflective Workshop, supported by the International Human Rights Law Review, at Brunel Law School, London, on 8 May 2014, 2:00 pm – 5:00 pm. The workshop is entitled “Business and Corporate Social Responsibility“. The full details and abstracts can be found here.

3.  This week, AJIL Unbound launches an exploration into The End of Treaties? Our intention is to explore a variety of issues related to the possible decline in formal treaties as a mechanism of cooperation in international law. Are treaties in decline as a form of international cooperation? Possible evidence for such a decline includes the rise of soft law commitments, intergovernmental networks, hybrid governance arrangements, and other less formal cooperation schemes, as well as unilateral denunciations of some treaties (such as BITs and the ICSID Convention) and threats of withdrawals from others (African nations and the ICC, for example). In addition, major multilateral negotiations in the trade and environmental protection regimes are stalled, and the leading UN entity in charge of the progressive development and codification of international law, the International Law Commission, is now generating draft articles or studies in lieu of draft conventions. There is also a domestic challenge to treaty power in the United States, embodied in Bond v. U.S., and the continuing unwillingness of the Senate to give advice and consent to what are widely viewed as noncontroversial treaties. Are treaties really in decline? If so what are the implications for international cooperation and international law? What is the role of global power shifts in explaining decline? Is there regional and national variation in propensity to adopt treaties? Are there any signs of ‘the return of the treaty’?

4.  ASIL Research Forum – November 6-8, Chicago, USA. The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society’s Midyear Meeting in Chicago November 6-8, 2014. Papers can be on any topic related to international and transnational law and should be unpublished.  Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum. Review of the abstracts will be blind. Proposals should be submitted online by June 8, 2014. To submit a proposal, or for more information, please visit the website. Read the rest of this entry…

Filed under: Announcements and Events
 
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