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.

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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…)

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  - which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. (more…)

In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here).  The  abstract of my article is as follows:

This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.

In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member,  Professor Gaeta (Universities of Florence and Geneva) which takes a different view. (more…)

Disclosure: I have acted as consultant to the Commission of the African Union on the question of the relationship between African States and the ICC. Note: This is a long post. If you’re interested in whether Bashir is entitled to immunity under the ICC Statute I try to provide answers at the end.

As I discussed in a previous post (see here) there has been tension between African States and the ICC regarding the indictment of Sudanese President Omar Al Bashir. It is reported (here and here) that the Assembly of the African Union (which meets at the level of Heads of States and Governments), has adopted a resolution calling on all African States not to cooperate with the International Criminal Court on the Bashir case.  In the resolution:

“(The African Union) decides that in view of the fact that a request of the African Union (to defer al Bashir’s indictment) has never been acted upon, the AU member states shall not cooperate persuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC,”

 This, of course, means that the AU Assembly is calling on States not to take steps to arrest Bashir and not to allow the ICC to conduct investigations on their territory (eg interviewing victims) relating to the Bashir case. The resolution arises out of anger not just at the fact that a sitting head of State has been indicted but because the UN Security Council has failed to take up the African request for deferral of the case under Art. 16 of the Rome Statute. In some ways, the resolution takes a middle position among the range of views that have been taken by African States. Some States have taken a hardline position and would have liked to push for African States to the ICC Statute to withdraw or at least consider withdrawing from the Rome Statute. At the other end of the spectrum, others would have preferred a reiteration of the request for deferral.

There is some confusion in press reports about whether the text of the current resolution was adopted unanimously or not. As I noted in my earlier post, there is significant support for the ICC among African States. It is noteworthy that  this resolution confines its call for non-cooperation solely to the Bashir case.  ICC investigation of the other situations before the ICC continues to have the support of the countries (Uganda, Democratic Republic of Congo, Central African Republic) where those situations arise from. Also on the same day that the AU adopted this resolution, Kenyan officials met with the ICC Prosecutor (see here and here) and agreed that if the Kenya Parliament is unable to adopt legislation to establish a tribunal to deal with 2007 post election violence in that country, the government would refer the situation to the ICC.

The point that African States are not to be seen as rejecting the ICC as an institution or the Rome Statute as a treaty can also be seen from the fact that the AU has sought to use mechanisms within the Rome Statute in order to halt the Bashir case. First, there was the attempt to use an Art. 16 deferral. Now, this resolution justifies the call for non-cooperation on the basis of Art. 98 dealing with immunity. This leads to the question whether Art. 98 does indeed permit States parties to the Statute to refuse cooperation on the basis of the immunity of a Head of State. (more…)

Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence. 

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. (more…)