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Two Articles on the Relationship between IHL and IHRL

Published on July 14, 2014        Author: 

Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.

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Four Scenarios on the Relationship between IHL and IHRL

Published on July 9, 2014        Author: 

The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.

In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.

Scenario 1: NIAC

State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?

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Technical Problems

Published on May 28, 2014        Author: 

Dear readers,

A quick note about the rather serious technical problems we’ve been experiencing for the past week. The blog is occasionally crashing or behaving very slowly. We are aware of the problems but it has proven difficult to establish their root cause. We’re on it and hopefully we’ll manage to resolve them soon. Obviously we apologize for any inconvenience.

The editors.

Filed under: EJIL
 
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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

 
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Questions of International Law

Published on May 15, 2014        Author: 

We are happy to welcome a new online resource for the discussion of international law – Questions of International Law (QID). Here is how its editors describe the project:

Founded by a group of Italian scholars, QIL will be a new open-access online platform for international law scholarship, aiming to cross the boundaries between a traditional journal and a scholarly blog. The idea is to address a number of specific questions (hence the name) from at least two different, and generally opposing perspectives on a more or less monthly basis. QIL is divided into two sections. The first, “Zoom-in”, will focus on more specific legal issues, which will normally, but not necessarily, be connected with recent judicial and diplomatic practice. The second section, entitled “Zoom-out”, is designed to air wider debates and present symposia on theoretical or other major issues of international law. QIL will be primarily in English, but is open to contributions in French and Italian.

QIL intends to contribute to debate on issues of international law by opening its platform to comments and proposals from the community of international legal scholars at large.

The managing editors

Maurizio Arcari, Paolo Palchetti, Antonello Tancredi

Filed under: Announcements and Events
 

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:

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The Genesis of Lex Specialis

Published on April 30, 2014        Author: 

When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By ‘genesis’ I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis.

My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJ’s 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

To prove or disprove this hypothesis, which is what I am doing in a paper I’m writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it.

The pre-1996 scholarship I will leave aside for the purpose of this post, but from what I’ve read so far there are few, if any references to the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But I’ve read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to the lex specialis principle? Just one – the United Kingdom.

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More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

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Announcements: The UK and the ECHR Conference at Leicester; EJHR Anniversary;

Published on April 5, 2014        Author: 

1. The UK and European Human Rights: A Strained Relationship? College Court, Leicester, 23-24 May 2014. This two-day conference will focus upon the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights. This will encompass both the UK’s relationship with the European Court of Human Rights in Strasbourg and the additional layer of human rights protection through the European Union. It seeks to contribute to on-going debates in the UK, and elsewhere in Europe, about the relationship between the European Court of Human Rights and national courts, which at times seems to be (perceived as) particularly antagonistic in the UK.  The conference will bring together judges, barristers and solicitors, politicians, representatives of NGOs and the media, and academics in the field. More information here.

2. The European Journal of Human Rights was launched in early 2013 as a response to the new pathways through which human rights evolve. International treaties and new laws continue to matter. But the development of human rights has become, first and foremost, the result of a dialogue between courts, at all levels — international, regional and national –, and other human rights bodies, who contribute to shape the “common law” of human rights in an organic, networked fashion. The Journal therefore aims to encourage doctrinal thinking and dialogue across legal venues, highlighting how concepts and ideas migrate from forum to forum, permanently reshaping human rights law. Under the supervision of Professor Olivier De Schutter, its Editor-in-chief and currently the UN Special Rapporteur on the right to food, the Journal publishes high quality review articles which are systematically submitted to a “double-blind peer-review” mechanism. For more on the Journal, which welcomes submissions either in French or in English, please visit the website — or write to bruno.hardy {at} uclouvain(.)be.

3. The Human Rights Centre at the University of Essex is holding a summer school on Human Rights Research Methods at its Colchester campus from 30 June to 5 July 2014.  Methodology has a direct bearing on the strength, persuasiveness and legitimacy of human rights research findings and their impact on policy and practice.  Strong methodology is also a central requirement in order to secure funding.  Yet, we often focus on the substance of human rights without sufficient attention to the methods used.  This summer school seeks to fill that gap by providing the core methods and skills needed to carry out human rights research whether documenting human rights violations, drafting human rights reports and articles or preparing funding bids.  Participants will learn everything from interviewing victims to researching in repressive societies to becoming ‘quantitatively literate’ in human rights research.  The teaching team includes anthropologists, lawyers, political scientists, psychologists and sociologists, three current and former UN Special Rapporteurs, a member of the UN Committee against Torture, the Interim Director of Law and Policy at Amnesty International and donors, all with significant experience on the theory and practice of human rights.  It is an ideal course for human rights professionals working in NGOs, international organisations and government, academics and postgraduate students.  To find out more, visit: www.essex.ac.uk/hrc/summerschool.

4. The Human Rights Centre at the University of Essex has launched the Essex Human Rights Centre Blog which is dedicated to the inter-disciplinary discussion of the theory and practice of human rights. The blog is intended to provide a forum whereby practitioners and academics from different disciplines can learn about each other’s research, work, and activities. By enabling the discussion of contemporary and enduring human rights challenges from the perspective of different disciplines and fields of expertise, it hopes to facilitate the identification of new and innovative approaches to the challenge of securing human rights: it is hoped that a multi-disciplinary forum will promote inter-disciplinary thinking. For more information, please visit the welcome post.

Filed under: Announcements and Events
 
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Yanukovych Confirms He Invited Russian Intervention

Published on April 2, 2014        Author: 

In an interview with AP today, the ousted Ukrainian president Viktor Yanukovych confirmed that he invited Russian military intervention in Ukraine. Readers will remember the Russian ambassador waiving of a letter to that effect in the Security Council, without actually making the copies of the letter available. I may be wrong, but I think this is the first time Yanukovych actually admitted that he made the invitation (which does not mean, of course, that it was legally valid, or that the invitation, such as it was, extended to the annexation of Ukrainian territory):

Putin said last month that Yanukovych had asked Russia to send its troops to Ukraine to protect its people — a request seen as treason by many Ukrainians. Asked about the move, Yanukovych said he had made a mistake.

“I was wrong,” he said. “I acted on my emotions.”

A mistake, was it? I’m sure there must be some equivalent for ‘no backsies’ in Russian.

Filed under: EJIL Analysis, Use of Force
 
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