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Author’s Response: Human Rights Obligations of Non-State Armed Groups

Published on November 7, 2016        Author: 

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration. Read the rest of this entry…

 
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Announcements: Launch of the Young Public International Law Group; CfP Quality Control in Preliminary Examination; CfS Melbourne Journal of International Law; CfP Austrian Review of International and European Law; Michigan Law School Young Scholars’ Conference

Published on November 6, 2016        Author: 
1. Launch of the Young Public International Law Group. The Young PIL Group (“YPILG”) is a newly-established network of public international law practitioners from law firms, the bar, international organisations, governments and academic institutions. It aims to connect early to mid-career public international law practitioners, to facilitate knowledge-sharing and to promote the next generation of PIL professionals. YPILG will host a number of PIL-focused events throughout the year: a drinks reception to launch the group will take place on 29 November 2016 at the Foreign & Commonwealth Office. Professor Vaughan Lowe will be the guest speaker at the reception. Further information about the group, including details of how to register for the launch event, can be found on the YPILG website.

2. Call for Papers: Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices. Preliminary examinations are one of the most important, yet crucially understudied areas of international criminal justice. The Grotius Centre and the Centre for International Law Research are seeking submissions for the second phase of the “Quality Control in Preliminary Examination” project which seeks to identify approaches to preliminary or pre-investigation examination, review ICC and national policies and practices, and provide lessons from countries where the ICC has engaged. Papers will be discussed in a project conference to be held in The Hague on 13-14 June 2017, and considered for publication in an anthology to be edited by Professors Carsten Stahn and Morten Bergsmo. Please find the full call here.

3. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 18(1). The deadline for submissions is 31 January 2017. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au. For more information please see here.

Read the rest of this entry…

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Outcome of 2016 Elections to the International Law Commission + Trivia Questions

Published on November 5, 2016        Author: 

On Thursday the United Nations General Assembly (GA) elected the individuals who will serve in the International Law Commission (ILC) for the five year term beginning in 2017. The Commission, which is a subsidiary organ of the GA, has a mandate to assist in the codification and progressive development of international law. It is composed of 34 members who serve in their individual capacities.  The outcome of the elections held on Thursday can be viewed here. A number of excellent academic international lawyers were elected to the Commission for the first time, most notably August Reinisch (Austria), Charles Jalloh (Sierra Leone) and Claudio Grossman (Chile) who all have impressive academic credentials as well significant practical experience of international law.  The Commission will benefit from their addition. However, as is often the case with UN elections, there are some surprises in the result, with some excellent academic international lawyers also failing to be elected to the Commission, particularly Mathias Forteau (France), Chester Brown (Australia) , Tiya Maluwa (Malawi), and Marcelo Kohen (Argentina) – all of whom also have impressive academic credentials and significant practical experience of international law.

There is a very marginal improvement in the position of women on the ILC. There will be three four women on the ILC, with Patrica Galvão Teles (Portugal), Marja Lehto (Finland), and Nilüfer Oral (Turkey)  joining Concepción Escobar Hernández (Spain) who was re-elected. It is very worrying that in the history of the Commission, only 6 7 women have been members and this is the first time that 3 more than 2 women will be serving together. Still, even on the new Commission,  fewer only slightly more than 10% of its members will be women. (Update: corrections in italics because of the comments below)

One other remarkable feature of the elections just concluded was that two of those nominated for the ILC in this round were previously judges on international tribunals. Read the rest of this entry…

 

Two Fascinating Questions: Are all subjects of a legal order bound by the same customary law and can armed groups exist in the absence of armed conflict? Book Discussion

Published on November 4, 2016        Author: 

Armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist. That such groups are bound by international humanitarian law (IHL) of non-international armed conflicts is clearly prescribed by Article 3 common to the Geneva Conventions, but this remains difficult for States to digest. Having obligations under the IHL of NIACs does not solve all the problems associated with such groups, because its rules are rudimentary, do not deal with how a territory must be administered and do not even apply to those acts of administration (e.g. in the areas of justice or detention) lacking any nexus to the armed conflict. It is therefore the great merit of Daragh Murray that his book forcefully argues – following in the footsteps of others such as Andrew Clapham, while providing greater detail and some new ideas – that armed groups have human rights obligations and explores what this can mean in practice.

I agree with the aim of the book and with most of the arguments employed. Some will, even in good faith, object to its aim, others will qualify Murray’s arguments as very forceful de lege ferenda, but argue that they go beyond a possible interpretation of lex lata. I find the very varied, often alternative, arguments presented for why armed groups can be subject to international law very nuanced, complete and convincing (with one exception discussed hereafter). The proposed gradated – or sliding scale – approach to the application of Human Rights to armed groups (pp. 172-199), based inter alia upon the classical distinction between obligations to respect, fulfil and protect is equally convincing and Murray’s application of this approach to three selected human rights is both innovative and realistic.

However, the argument provided for why armed groups are bound by existing human rights treaties (although they never accepted them formally) is in my view comparatively short, very absolute and less well-reasoned (pp. 164-169). Read the rest of this entry…

 
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Human Rights Obligations of Non-State Armed Groups: Realistic or Overly Ambitious? Book Discussion

Published on November 3, 2016        Author: 

Dr Murray’s book, Human Rights Obligations on Non-State Armed Groups talks about non-state armed groups as a reality that needs to be addressed: they exist, they exercise control, and therefore we must talk about their responsibilities. While this might seem self-evident, his sober analysis is particular commendable in the context of the current counter-terrorism atmosphere and discourse. It is a very well-researched, thorough and thoughtful book. It is particularly impressive in its wide research about the practice of many different groups.

The book raises many interesting questions on legal theory, but also on mechanisms to engage in dialogue with non-state armed groups. I would like to focus on two aspects: the legal “de facto control” argument and the dilemma which, to my mind, human rights obligations of non-state armed groups raise.

After having established that non-state armed groups have legal personality, the book argues that the “prescriptive jurisdiction theory” allows states – which are normatively higher positioned than their subjects, including non-state armed groups – to impose binding obligations on non-state armed groups as a matter of international law.

This is indeed what states have done in Common Article 3 to the four Geneva Conventions by imposing IHL obligations on each party to non-international armed conflicts, meaning also non-state armed groups. Through practice and opinio juris they have also, by now, by and large accepted that non-state armed groups have IHL obligations under customary international humanitarian law.

Unlike Common Article 3 and Additional Protocol II, however, human rights treaties are not generally worded in a manner that would suggest that they are binding on non-state armed groups. Other traditional sources of international law to create international rights and obligations would be customary law or general principles. However, the book discards both – customary law for lack of evidence; and general principles for being too general and vague. While this is correct, in my opinion, the analysis could have benefitted from looking a bit more closely at state practice and positions. Read the rest of this entry…

 

Challenging the Traditional View that International Law Does not Extend to Non-State Armed Groups. Book Discussion

Published on November 3, 2016        Author: 

While international human rights law (IHRL) and its numerous enforcement mechanisms have proliferated over the years, millions of people remain beyond its reach. Frequently this is because they live in areas controlled by non-state armed groups, often under difficult and oppressive conditions.  Dr. Daragh Murray’s new book “Human Rights Obligations of Non-State Armed Groups” (Hart, 2016) addresses this issue by providing a serious and thought-provoking account of why IHRL binds non-state armed groups, both inside and outside situations of armed conflict.

In times of armed conflict, international humanitarian law (IHL) places important restrictions on organized non-state armed groups to address this problem, but its rules are sparse. Moreover, IHL lacks a strong, universal, and functional international monitoring system. There are also plenty of situations outside of armed conflict, where IHL doesn’t apply, and yet armed groups maintain decisive influence over the lives of people.

Murray’s book, which looks to IHRL for answers, refreshingly challenges the traditional view that IHRL doesn’t bind non-state actors.  Far from being an activist’s manifesto or merely providing a wish-list of what law should do to regulate non-state armed groups, Murray goes to great pains to interrogate what more international law, and IHRL in particular, is capable of doing. He does this in a comprehensive manner—drawing on a variety of fields of public international law and capitalizing on the relatively few instances where international law binds non-state actors—to develop a legal theory that he then applies to civil and political rights as well as economic, social, and cultural rights. Murray provides us with a detailed diagram of how IHRL binds non-state armed groups and gives thorough explanations to support what he describes.  Read the rest of this entry…

 
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Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

First of all I would like to extend a huge thank you to EJIL:Talk! for hosting this book discussion and to the three discussants for taking the time to read the book and to provide their comments. It is a privilege, and I look forward to the debate.

Human Rights Obligations of Non-State Armed Groups’ looks at the legal and practical mechanics of how international human rights law can be applied to armed groups. I focus on two key issues: (1) what is the legal basis for the application of international human rights law obligations to armed groups, and under what circumstances will the law apply, and (2) how will the application of human rights law to armed groups work in practice, noting that armed groups are definitely not States – and so cannot reasonably be subject to the same obligations – and also that significant variation exists amongst armed groups and so obligations may need to be applied to different armed groups in a different manner.

In this introductory post I would like to briefly set out why armed groups should be subject to human rights obligations, and to present an overview of my approach in relation to the two issues identified above.

Today, non-State armed groups exert significant influence over the lives of millions of people around the world. Indeed, at its height the Islamic State was reported as exercising governmental authority over up to 10 million people in Iraq and Syria, while the impact of other groups such as the CPN-M in Nepal, the LTTE in Sri Lanka, the FARC in Colombia, the Naxalites in India, or the BRN-C in Southern Thailand is well documented. The activity of these groups is demonstrably of international concern. Yet their activities are not subject to effective regulation. Read the rest of this entry…

 

Book Discussion: Introducing Daragh Murray’s Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

book-dmThe blog is happy to announce that this week we will be hosting a discussion on Daragh Murray’s new book with Hart, Human Rights Obligations of Non-State Armed Groups. Daragh is a lecturer at the University of Essex School of Law and Director of the Human Rights Centre Clinic. He will start the discussion tomorrow morning by outlining the main arguments of his book. Comments by Jonathan Horowitz, Cordula Droege, and Marco Sassoli will follow over the course of the week, while Daragh will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.

 
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Guilty but Free: The ICC Renders its First Contempt Case Judgment

hOn 19 October 2016, the Trial Chamber VII of the International Criminal Court issued its verdict in the case The Prosecutor v Jean-Pierre Bemba Gobo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, Narcisse Arido (Bemba et al.) – the ICC’s first contempt case.

The five men had been accused of offences against the administration of justice under Article 70 of the Rome Statute (RS) in the Main Case against Jean-Pierre Bemba. They were (to different degrees) found guilty by the Chamber for corruptly influencing 14 defence witnesses in the Main Case, presenting false evidence, and giving false testimony when under an obligation to tell the truth. Mr Bemba (the accused in the Main Case), his lawyer Mr Kilolo, Bemba’s defence team’s case manager Mr Mangenda, Mr Babala, a political ally of Bemba’s, and Mr Arido, Bemba’s financier, had briefed the witnesses, provided them with false testimonies, payed them and promised them relocation to Europe if they testified in Bemba’s favour.

Attending the hearing on Wednesday 19 October, the authors of this post did not expect to see more than a normal delivery of judgment. Eventually, however, we listened to a vivid argument on whether to remand in custody of the ICC’s detention centre the accused Mr Kilolo, Mr Mangenda, Mr Babala and Mr Arido, while awaiting their sentencing judgment. Bemba, having been sentenced to 18 years of imprisonment in the Main Case, is in custody anyway. Both, the Prosecution and the Defence presented their arguments as to whether detention was appropriate and allowed by law, in which the latter deplored – through a noteworthy “we do not dine with the judges” – that, unlike the judges, they had not been informed of the Prosecution’s intention to file this application. Eventually, the Chamber rejected the application, relying on its assessment that there was no risk that the four accused wouldn’t show up to any subsequent Court meeting.

This post examines the issues mentioned during the discussion between the Prosecution and the Defence. It seeks to clarify in which circumstances an accused can be detained after a conviction, although a sentence has not yet been pronounced. Read the rest of this entry…

 
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Editorial Changes at EJIL:Talk!

Published on November 1, 2016        Author: 
Monica Hakimi

Monica Hakimi

It is a pleasure to announce additions to the team of editors at EJIL:Talk! We are delighted to announce three new Contributing Editors to the blog. They are:

Monica Hakimi who is Professor of Law at the University of Michigan School of Law where she was until recently, Associate Dean for Academic Programming. She previously served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State where, in addition to other tasks, she served as counsel before the Iran-U.S. Claims Tribunal and worked on cases before the International Court of Justice and U.S. federal courts and agencies.

Lorna McGregor

Lorna McGregor

Lorna McGregor, who is Professor at the University of Essex Law School where she is also Director of the Human Rights Centre at Essex University. Lorna is Co-Chair of the European Society of International Law’s Interest Group on Human Rights and a Commissioner of the UK Equality and Human Rights Commission. She is currently leading a number of funded research projects including acting as Co-Director of an ESRC Large Grant on Technology, Big Data and Human Rights; Principal Investigator of a Nuffield-funded project on the role of National Human Rights Institutions in Complaints-Handling; and a Co-Investigator on a British Academy Newton Fund grant on The Effects of International Human Rights Law on Public International Law and its Sub-Branches.

Andreas Zimmermann

Andreas Zimmermann

Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany, and Director of the Potsdam Centre of Human Rights. He has advised the German government in various capacities including being a member of the Advisory Board of the German Ministry of Foreign Affairs on United Nations issues as well as of the Advisory Board on International Law. He has been counsel in several cases before the International Court of Justice and inter-State arbitration. Has also been judge ad hoc at the European Court of Human Rights.

They have written in the European Journal of International Law and are previous contributors to the  blog. We look forward to their contributions over the coming months and years. Remaining on the team of contributing editors are Anne Peters and Christian Tams.

Rotating off the team of contributing editors are Matthew Happold and Antonios Tzanakopoulos. We owe a debt of gratitude to Matthew and Antonios for their contributions to the blog over the past few years. We hope they will continue to write for the blog as guest contributors.

We are also very grateful indeed to Iain Scobbie whose tenure as a co-editor of the blog ended earlier this year. Also leaving us earlier this year was Geraldo Vidigal who gave really valuable service as Associate Editor before moving on to take up a position in the Legal Service of the World Trade Organization.

Geraldo was replaced as Associate Editor by Dr Helen McDermott who is a research fellow at the Individualisation of War project at the European University Institute, an Associate of the Oxford Martin Programme on Human Rights for Future Generations and a Visiting Fellow at the Blavatnik School of Government at the University of Oxford.

We welcome the new members of the team!

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