The latest issue of the European Journal of International Law has been published and is available here and here. This is Issue 3 of Volume 20. Readers will remember that the current volume of EJIL celebrates the 20th Anniversary of the Journal. In each issue of this volume, there is an anniversary article as well as a symposium which focusses on themes or issues where there has been significant change in international law over the past twenty years. In this issue the Anniversary article is by Anne Peters, Professor of Public International and Constitutional Law at the University of Basel and is titled “Humanity as the Alpha and Omega of Sovereignty”. The Symposium is on Globalization. In addition to these features, and others, this issue also contains two EJIL:Debates – one on the Kadi case and the other on “Soft Law”. The editorial by Professor Joseph Weiler (see here) elaborates on the pieces contained in this issue of EJIL.

The full table of contents is as follows: (more…)

This past summer, British Prime Minister Gordon Brown announced the establishment of an inquiry into the UK’s involvement in the Iraq War. The Iraq Inquiry, which is independent of the government, began work at the end of July.  The committee will consider events from the summer of 2001 until the end of July 2009 when all British forces left Iraq. This means that  the inquiry has a mandate to consider the lead up to the Iraq war, including the circumstances in which the decision was taken to commit the UK to the invasion, as well as the period of the conflict and the post conflict reconstruction. In establishing the inquiry, the Prime Minister stated that the

“the primary objective of the committee will be to identify lessons learned. The committee will not set out to apportion blame or consider issues of civil or criminal liability.” (see here at column 24, 2nd para)

The Inquiry will be conducted by a team of five headed by a former civil servant, Sir John Chilcot. It includes an academic (Sir Lawrence Freedman), a historian (Sir Martin Gilbert), a former diplomat (Sir Roderic Lyne) and a member of the House of Lords (Baroness Usha Prashar).

International lawyers, and indeed the general public would be interested to know, that the Chair of the Inquiry announced in its initial press conference that the inquiry would seek to

form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict. (see here)

Given that it is unlikely that the question of the legality of the war in Iraq will come before an international tribunal, the Iraq Inquiry may well be the most important public and formal process for the determination of the legality of the UK’s (and US’) use of force in Iraq. Last week, the Inquiry announced the appointment of  Dame Rosalyn Higgins as its international law adviser. Dame Rosalyn was Professor of International Law at the London School of Economics up until 1995 when she became a Judge of the International Court of Justice (ICJ). She was President of the ICJ from 2006 until February 2009 when she stepped down from the Court. In addition the Inquiry has engaged General Sir Roger Wheeler, the former Chief of the General Staff (i.e head of the British Army) as its military adviser. 

Like the Prime Minister, Chair of the Inquiry has stressed that “the Inquiry is not a court of law and nobody is on trial” (statement at the Chair’s initial press conference). However, there remains some interest as to whether the inquiry could lead to prosecutions, if it were to find that the UK went into the war illegally. The Inquiry has announced that it will call as witnesses the Prime Minister and former Prime Minister Tony Blair. Could Tony Blair be prosecuted for taking the UK into an illegal war? (more…)

As Marko reported in the summer, the House of Lords (or to be more precise, the Appellate Committee of the House of Lords) has been replaced as the final court of appeal for the different legal systems that form the UK by a Supreme Court. The new Supreme Court took over the functions of the Law Lords on 1 October 2009. The Appellate Committee of the House of Lords, consisting of fully qualified and professional judges appointed to the House of Lords (one of the two chambers of the British Parliament), had been the final court of appeal in the UK since 1876. Prior to that date, the House of Lords (the legislative body) had served as the final court of appeal and before 1399, both Houses of Parliament  (the Lords and the Commons) heard petitions for judgments of lower courts to be reversed.

When compared with other countries, the position of the House of Lords (in its judicial capacity) was anomalous in that it failed to represent the principle of separation of powers. Though the Law Lords (or Lords of Appeal in Ordinary as they were formally designated) were professional judges, usually appointed from the lower courts, they were members of the House of Lords in its legislative capacity and could sit and vote in the legislative chamber. In practice, they rarely did so but on occasion they did. The Lord Chancellor was until 2005 head of the House of Lords in both its legislative and judicial capacities and was also a member of the cabinet! The Law Lords heard appeals in committee rooms in Parliament and judgments were delivered in the chamber of the House of Lords.

The new Supreme Court is the final court of appeal for England & Wales, for Northern Ireland and for civil cases arising from Scotland. It is composed of 12 Justices of the Supreme Court (a new term). All the existing law lords were automatically appointed to the Supreme Court though they no longer have the right to sit and vote in the House of Lords. In a move with symbolic significance, the Supreme Court has moved out of the  House of Lords and occupies a separate building on the opposite side of Parliament Square in Westminster, London.

The Supreme Court held its first hearings on October 5 with appeals on cases of great significance for international law. Its first cases deal with the legality of the UK domestic orders which implement Security Council Resolution 1267 (for media reports see here; for details on the Supreme Court site, see here and here). Under that resolution UN Member States are obliged to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. The Supreme Court held hearings last Monday (Oct 5) on those cases which Antonios recently commented on here on EJIL:Talk!  These are the cases of Hay v HM Treasury ([2009] EWHC 1167 (Admin)) (where unusually the appeal has gone straight from the High Court to the Supreme Court) and A, K, M, Q & G v HM Treasury [2008] EWCA Civ 1187. In both cases, persons subjected to the Al-Qaida and Taliban (United Nations Measures) Order 2006 (’AQO’) which implemented SC Resolution 1267 argue that the Order impermissibly deprives them of fundamental rights (principally the right of access to a Court) without the explicit permission of Parliament. Judgment in these cases is expected next month and we will have comment on them here on EJIL:Talk! (more…)

We are pleased to announce that over the coming days, Professor Brad Roth of Wayne State University will be contributing a series of short but incisive essays (i.e posts in general blog speak) to EJIL:Talk! Professor Roth has appointments at both the Wayne State University Law School and the Department of Political Science. He specialises in international law as well as in political and legal theory. He is author of Governmental Illegitimacy in International Law (OUP) and co-editor of Democratic Governance and International Law (CUP). His latest papers include “Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice,” 8 Santa Clara Journal of International Law  (forthcoming Dec. 2009 and available here); and “Just Short of Torture: Abusive Treatment and the Limits of International Criminal Justice,” (2008) 6 Journal of International Criminal Justice 215-39 (available here).

In August, the United States Senate Foreign Relations Committe, released a report (“Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents”) which confirmed that U.S. forces in Afghanistan are now mandated to kill or capture drug traffickers in Afghanistan who have links to the Taliban. The Taliban is estimated to receive between $70 million and $500 million dollars a year from the drugs trade  and this money is said to play a critical role in financing the insurgency. Therefore, NATO (led on this issue by the US and the UK) consider it essential to starve the Taliban of the funds which make the insurgency in Afghanistan possible. However, targeting of individual drug traffickers or of drugs labs and other objects associated with the drugs trade raises some fundamental questions about who or what is a lawful target in armed conflict. The US and NATO’s policy appears to be a regrettable return to the notion of “quasi combatants” and to the idea of total war in which persons or industries connected to the war effort become legitimate targets. Given that the International Criminal Court has jurisdiction over acts committed in Afghanistan and the Office of the Prosecutor has been collecting information in order to decide whether to open an investigation into alleged crimes committed in that country (see here and the discussion at Opinio Juris), US and NATO commanders ought to pay careful consideration to the legality of their targeting policy.

(more…)

We have decided to postpone the discussion of the articles in the EJIL Anniversary Symposium on Use of Force which I announced last week. Fear not, the discussion will take place! We now plan to hold the discussion later this year, when Issue 4 of this year’s EJIL is published. As announced on this blog in the summer, the last issue of EJIL this year will include a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will featured in those issues. We think the occasion of the publication of this issue would be a more appropriate time to continue discussion of those same EJIL articles on the blog.

My apologies to the authors, commentators and to readers for the last minute change of plans.

Over the next couple of weeks, we will be hosting a discussion of articles in the latest issue of the European Journal of International Law. As readers will know, this year marks the 20th Anniversary of EJIL and each issue of the journal includes a symposium on selected areas of international law. In the latest issue (issue 2), there is a symposium on the Use of Force.  EJIL:Talk! will host an online discussion of three articles in that symposium. Next week we will discuss Christian Tams’ article “The Use of Force Against Terrorists”. We will then host discussions of Ken Anderson’s piece “The Rise of International Criminal Law: Intended and Unintended Consequences” and Dino Kritsiotis’ article: “Close Encounters of a Sovereign Kind”. All of these articles will be freely available on EJIL.org and on the OUP EJIL site.

Professor Joseph Weiler’s editorial for this issue of EJIL points out that:

Dino Kritsiotis of the University of Nottingham and Ken Anderson from American University in Washington DC may have taken on classical topics – but fasten your seat belts and prepare yourself to be challenged. Christian Tams from Glasgow and Tullio Treves of Milan (who serves, too, as Judge of the International Tribunal for the Law of the Sea) deal with the less classical: the use of force in fi ghting terrorists and pirates respectively. Keep those seatbelts fastened. We were not interested in the ‘ Law as it Stands ‘ style pieces. These are all pieces with a view, with a thesis. We expect some disagreement.

EJIL:Talk! is precisely the forum where we expect some of that disagreement to emerge and different points of view to be thrashed out. Commentators on the EJIL pieces will include Kimberley Trapp (University of Cambridge), Gerry Simpson (the London School of Economics and the University of Melbourne), Brad Roth (Wayne State University) and Nikolas Stürchler (Ministry of Foreign Affairs, Switzerland and author of The Threat of Force in International Law).

As always readers are invited to participate in this discussion by posting comments.

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. (more…)

We are happy to announce that over the next few days Tolga Yalkin will be posting on EJIL:Talk! a series of pieces dealing with aspects of international investment law. Readers will remember that, last month, Tolga posted a piece on EJIL:Talk! titled “International Investment Arbitration: Poisoned at the Root?”  (which was discussed over at Opinio Juris)

Tolga is a graduate student at the Faculty of Law, University of Oxford and is the President of Oxford Pro Bono Publico, a public interest law program of the Oxford Law Faculty. His Oxford thesis considers the international minimum standard of treatment in international investment law.

Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice). (more…)