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UN Human Rights Council Panel Discussion on Drones

Published on October 1, 2014        Author: 

Last week the United Nations Human Rights Council convened a panel to  discuss the use of armed drones (remotely piloted aircraft) in counter-terrorism and military operations in accordance with international law. The panel was convened as part of the Human Rights Council’s 27th regular session, which finished last week.  The session held last Monday took the form of an interactive dialogue between a panel of experts, members of the Human Rights Council (i.e States), as well as observers. I had the honour to be invited to moderate what turned out to be a very interesting panel discussion. The panellists were Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions; Ben Emmerson QC, UN Special Rapporteur on human rights and counter-terrorism; Shahzad Akbar, Legal Director, Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes, International Commission of Jurists;  and Pardiss Kebriaei, Senior Attorney, Centre for Constitutional Rights. Flavia Pansieri, the UN’s Deputy High Commissioner for Human Rights opened the discussion.

There was a really interesting exchange of views, not only amongst members of the panel but also between states and NGOs. Over 20 states spoke, including all the permanent members of the UN Security Council, as did the ICRC. There was discussion of the entire range of legal issues relating to targeted killings in counterterrorism and other operations. In particular, there was consideration of the applicable legal framework regulating the use of armed drones with much attention given to the applicability of international human rights law and international humanitarian law (IHL). In this context there was discussion of the substantive legal issues relating to the determination of the applicable legal framework – such as the classification of situations of violence (for the purpose of determining the applicability of IHL) and the extraterritorial application of the right to life. However, perhaps the most significant disagreement between states related to the question of institutional competence for discussing and monitoring compliance with the law. In a divide which appeared to mirror the range of views as to whether norms of human rights or IHL constitute part of, or the main applicable legal framework, some states (like the US, the UK and France) insisted that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones whereas many other states, observers and panellists insisted that the Council was such a forum.

A significant part of the discussion also covered the applicable human rights  and IHL rules that apply to the use of drones. The panellists spoke about the right to life as it might apply to drones; the principles relating to targeting under IHL; and other potentially applicable human rights, such as the right to a remedy.  A key part of the discussion was about accountability with respect to the use of drones. All the panellists spoke about the obligations of states under IHL and human rights law to conduct investigations in cases where there was a credible allegation of violations, as well as the obligations relating to transparency with respect to drone operations. This issue was also raised by a number of states with some seeking examples of best practices that may be employed with respect to disclosure of data relating to drone operations.

A press release summarising the discussion is available here and a video of the entire panel discussion is available on UN Web TV. Christopher Rodgers of the Open Society Foundations has also written an excellent report of the session on Just Security. The Office of the High Commissioner for Human Rights will submit a report on this discussion to the Human Rights Council’s 28th regular session which will take place early in 2015. At this point, the matter will return to the Council for further consideration.

 

Geoff Corn and Guglielmo Verdirame take part in Transatlantic Dialogue on International Law and Armed Conflict

Published on September 19, 2014        Author: 

This week guglielmo-verdirame_0 Professors Geoff Corn (left, South Texas College of Law)j-corn and Guglielmo Verdirame (right, Kings College London & barrister at 20 Essex Street) contributed pieces in the joint blog series arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this past July.

Geoff Corn’s piece, “Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility”, was posted at Lawfare at the start of this week. In this thoughtful pose, Geoff says:

“I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting.”

He raises a number of important issues relating to the feasibility of international criminal prosecutions to produce credible accountability decisions in relation to battlefield decision-making. One question he addresses, which is particularly novel but really important is this:

“[A] complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.”

At the the end of the week, Guglielmo’s piece, “Taming War through Law – A Philosophical & Legal Perspective” , was posted on InterCross (the blog of the ICRC. Guglielmo begins his post in this way:

“The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.

The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?”

His post then examines the work of Kant, Grotius and Hobbes, together with decisions of the European Court of Human Rights and the UK courts, in his survey of the question whether human rights law should apply to armed conflicts.

 

 

Joint Blog Series on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHLR: Part II

Published on September 11, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series we are hosting with Lawfare and Intercross is Part II of Brigadier General (Rtd) Ken Watkin QC’s piece on “The Overlap between IHL and IHRL”. The piece  is posted on Intercross, where you can also find Part I. Ken Watkin was the senior legal adviser in the Canadian Armed Forces and, also  a former Stockton Professor of International Law at the US Naval War College. The joint series arises out of the 2nd annual Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford in July.

Ken begins his latest post in this way:

Last week, I described  the “exclusionary” approaches to the application of international humanitarian law (IHL) and international law human rights law (IHRL), which assume that one body of law will apply to the exclusion of the other. I also described how the approaches taken by the United States and Canada differ from those taken by European nations, the latter approach being influenced, in large part, by decisions of the European Court of Human Rights. However, the widely and often loudly debated exclusionary approaches do not actually represent how the law is being applied, particularly in a North American context. The reality of contemporary conflict is that both normative frameworks often need to be relied on concurrently. The application of human rights based norms occurs less through consideration of IHRL treaty law obligations than by operation of customary law obligations (both IHRL and IHL), the application of domestic law, or as a matter of policy. There is increasing recognition that Common Article 3 and Article 75 of Additional Protocol I apply as a matter of customary international law to international operations. Article 75 was clearly influenced by the 1948 Universal Declaration on Human Rights and the 1966 International Covenant on Civil and Political Rights. As then Professor Christopher Greenwood noted, the relationship between IHL and human rights law “is expressed in the adoption of major human rights principles in Article 75 AP I” [Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck, ed., The Handbook of International Humanitarian Law (2nd ed., 2008), 74, Rule 254.] Significantly, these human rights norms must be applied regardless of the geographic location of the armed conflict, thereby avoiding the intractable debate regarding the extra-territorial application of IHRL treaty law.

Read the rest on Intercross!

 

Transnational Dialogue on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHRL

Published on September 6, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series on International Law and Armed Conflict was posted yesterday on Intercross (the blog of the ICRC). The post is by Brigadier Gen (Rtd) Ken Watkin QC, former Judge Advocate General (i.e the head legal adviser) in the Canadian Armed Forces and former Stockton Professor of International Law at the United States Naval War College. Ken’s post is on the overlap between international humanitarian law and international human rights law. He starts by saying that:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations. 

The full post is available on Intercross here

 

Joint Blog Series on International Law and Armed Conflict: Bobby Chesney on “When Does LOAC Cease to Apply”

Published on September 5, 2014        Author: 

As indicated earlier this week, EJIL:Talk! is partnering with Lawfare and Intercross (blog of the International Committee of the Red Cross) to publish a series of posts arising out of the 2nd Transatlantic Dialogue on International Law and Armed Conflict (which took place in Oxford in July of this year). On Wednesday Bobby Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, and one of my co-convenors of the transatlantic workshop, kicked off the series with a post exploring the interesting question: “When does LOAC cease to apply?”

Bobby, introduced his post by saying:

“People sometimes speak of peacetime and wartime as sharply demarcated, their factual foundations and legal consequences being clearly distinct from one another. Everyone here will appreciate that it is not always or even often so simple, as Mary Dudziak has documented so richly in her recent book WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. Circumstances of violence can occur across a broad spectrum of intensity, with the nature and intensity of events rising or falling in unexpected ways (and places) over time. Even the parties themselves can undergo sweeping changes. Small wonder, then, that we lawyers spend so much time wrestling with the details of IHL’s field of application.”

He then explained that:

Usually we approach the field-of-application question from the front-end, which is to say we talk about whether a given situation of violence has crossed over into the realm of armed conflict, bringing IHL to bear (and thus also complicating the question of IHRL’s role). It is a particularly vexing issue in the context of potential NIACs”

However, less attention has been paid to the back-end of the armed conflicts, particularly to the question of when a NIAC is to be regarded as having ended. This is the focus of Bobby’s post. He considers various options for assessing when IHL should cease to apply, examining the approach set out in the ICTY Appeals Chamber’s famous Tadic case (that IHL applies until a “peaceful settlement is achievement”), as well as whether the test for determining whether a NIAC exists at the front end of the conflict should be applied for determining whether it has terminated.

You can read Bobby’s post in full over on Lawfare.

For a list of other scheduled posts in this series, see here

 

Is Israel’s Use of Force in Gaza Covered by the Jus Ad Bellum?

Published on August 22, 2014        Author: 

On any account, the conflict in Gaza is depressing. It is clear that Hamas’ firing of rockets which are incapable of distinguishing between military and civilian targets is a violation of international humanitarian law. However, the question whether Israel’s actions in Gaza, which have reportedly resulted in the death of over 2000 people, comply with international law generates much more heated debate. As Professor Geir Ulfstein has pointed out, in a recent post on Just Security, in discussions about whether Israel has violated international law, “the focus is only on violations of international humanitarian law (jus in bello), not on breaches of restrictions following from the right of self-defence (jus ad bellum).” An example is this post by Mark Ellis, Executive Director of the International Bar Association on Huffington Post. One of the key questions that arise in connection with Israel’s actions in Gaza is whether its actions are proportionate. In a later post I will focus on proportionality and what it might mean in this conflict. Suffice it to say for now that as Geir Ulfstein notes (and as pointed out by Marko in this post) the “requirements of proportionality are different in international humanitarian law (IHL) and as a restriction on the right of self defence”. One may also note that even if every individual acts of targeting by a party to a conflict is proportionate under IHL, the overall campaign might still be disproportionate under the law relating to self defence in the jus ad bellum. Prof Ulfstein ends his post by saying that “the restrictions on self-defence for Israel’s military operations should receive more attention”. This posts responds to that call.

In this post, I wish to address the question whether Israel is bound by the law relating to self-defence in the action it is taking in Gaza. Put differently, the question is whether the international law limitations on the right of self-defence apply to Israeli action in Gaza? As Israel’s actions in Gaza are taken in response to Hamas’ actions and Israel claims to be acting in self defence, our intuitions might suggest that we ought to assess whether Israel’s actions comply with the international law limits on self defence. In particular, one may ask whether Israel’s actions are proportionate in the jus ad bellum sense.

Despite first impressions, it is not at all obvious that the jus ad bellum applies to Israel’s use of force in Gaza. When one scratches beneath the surface, the question appears more complicated. Read the rest of this entry…

 

Mapping the Scholarly Commentary on Israel-Gaza Wars 2008-2014

Published on August 11, 2014        Author: 

John Louth, Editor-in-Chief of Academic Law Books, Journals and Online content at Oxford University Press has produced another one of those impressive Debate Maps that they have been creating over the last year or so. This one is about the Israel-Gaza Wars from 2008 to 2014 and it:

“. . . maps scholarly commentary on the international law aspects of the armed conflict(s) between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers, and free content from OUP’s online services other free repositories.

A later update of this map will include consideration of a referral of the situation to the International Criminal Court.

Whereas previous maps attempted to provide comprehensive coverage of blog commentary, this map is more selective due to the time period covered. Comments from readers pointing out important issues and perspectives that have not been included can be sent to john.louth {at} oup(.)com.”

We at EJIL:Talk! have, at least thus far, not had much to say about the current conflict in Gaza. However, as the OUP Debate Map shows, we have have posted extensively on previous manifestations of the conflict between Israel and Gaza. Much of that prior analysis remains relevant to the current conflict. We are highlighting that previous commentary in our “From the Archives” box which is to the left of this post (if you’re on a computer) or below the list of posts (if you’re on a mobile device). As John has not yet included material on the possibility of a Palestinian acceptance of the jurisdiction of the ICC, we have included in the “From the Archives” box some of the previous EJIL:Talk! posts on that issue. We have also included some of the posts on whether Gaza is occupied - an issue of critical importance with regard to the debate on whether Israel has a continuing obligation to supply electricity to the territory. We have also included some of our early posts on proportionality and on the question of who is to be regarded as a combatant in Gaza (here, here and here).

As with the other Debate Maps produced by OUP, this one is to be highly recommended. It is one of the easiest and best ways to get an overview of the legal issues and provides a really useful bibliography of scholarship on those issues. For an explanation by John and Merel Alstein at OUP of the thinking behind the Debate Maps see here and here.

 
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Transatlantic Roundtable on Challenges to IHL

Published on July 16, 2014        Author: 

This week, leading academics and practitioners from the US, UK, continental Europe, and Israel will gather at the University of Oxford to discuss a range of IHL-related issues – from addressing violations of the rules of war to military ops that go beyond the traditional battlefield.  The two-day roundtable discussion will focus on transatlantic issues relating to international humanitarian law (IHL). Civilian and military participants from Canada, the United States, the United Kingdom, continental Europe and Israel will address a variety of IHL issues of concern to their own States, as well as relating to cooperation between States. The idea is to share ideas across borders in order to exchange approaches to various IHL and national security issues and advance the dialogue on these issues. The roundtable is organized by the International Committee of the Red Cross’ delegations in Washington, D.C. and London, the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations , the Robert S. Strauss Center for International Security and Law at the University of Texas, and the South Texas College of Law.

Participants will discuss the following topics:

- Updates in the overlap between IHL and IHRL

What have the major updates in the interplay between IHL and International Human Rights Law (IHRL) been over the past year? Has IHRL gone too far into influencing IHL? What are the effects of this interplay?

 - Accountability for violations of IHL

Read the rest of this entry…

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New Issue of EJIL (Vol. 25: No. 1) Published

Published on April 8, 2014        Author: 

The latest issue of the European Journal of International Law , the first of 2014, (Vol. 25, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, as well as on EJIL’s Oxford University Press site. Readers can access those articles that are freely available from both places. As it happens, a good deal of the current issue is freely available even those readers without a subscription. Readers, with or without a subscription, can access Daniel Bethlehem’s article,  “The End of Geography: The Changing Nature of the International System and the Challenge to International Law” as well as responses to that piece by  David Koller and  Carl Landauer . Also freely available are the articles in the Joint Symposium with the International Journal of Constitutional Law (I*CON): Revisiting Van Gend en Loos. Subscribers have full access to the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Announcements: BIICL Course on Public International Law; 21st C Borders Conference;

Published on March 30, 2014        Author: 

1. The British Institute of International and Comparative Law (BIICL) will be running a short course from 29-30 April 2014 entitled, Public International Law in Practice. The dynamic, two-day programme will be focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Participants will be provided with a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international resolution of disputes, from human rights to international investment law.  Led by many of the Institute’s leading researchers and practitioners, the course is ideal for those in the early and middle years of legal practice, those working in governmental and non-governmental organisations with legal elements to their work, those in moving legal practice areas, and students who are studying for a postgraduate degree which includes aspects of international law. This course is unique in that it introduces participants to public international law as it arises in practice in a concise and engaging way. The course fee is £375 (incl VAT) and it is accredited with 14.5 CPD hours. Find out more and book online here.

2. Call for Papers: Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster. 21st Century borders are coming under increasing strain with shifting balances of international power. This was seen most dramatically in the recent Russian annexation of the Crimea and its connected repudiation of uti possidetis that underpinned statehood in the former Soviet Union. In East Asia tensions remain high in sovereignty disputes over islands and maritime delimitation. Renewed attempts to reach a settlement between Israel and Palestine similarly turn on the crucial issue of borders. In addition to these, a number of other states have been involved in long-running boundary conflicts. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. We welcome abstracts for papers of no more than one page from both established researchers and early career academics. Please send your proposals to Dr. James Summers j.summers {at} lancaster.ac(.)uk. The deadline for abstracts is 20th April 2014.

 

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