I am happy to announce that this week we will be hosting a discussion on Antonios Tzanakopoulos’ new book with OUP, Disobeying the Security Council: Countermeasures against Wrongful Sanctions. Antonios is lecturer in international law at the University of Glasgow School of Law, and is of course well-known to the readers of this blog as author of many insightful posts. He will start the discussion on Monday by outlining the main arguments of his book. Comments by Erika de Wet, professor of international law at the universities of Pretoria and Amsterdam, Matthew Happold, professor of international law at the University of Luxembourg, and myself will follow over the course of the week, while Antonios 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.

Kevin Heller sends on this very interesting call for papers – it’s bound to be an excellent symposium.

THE EICHMANN TRIAL AT 50

A two-day international symposium to discuss one of the most important trials of the 20^th Century

Melbourne Law School

14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson

CALL FOR PAPERS

Deadline for Abstracts: 15 June 2011

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem.  The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world.  Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death.  Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20^th century.

2011 marks the 50^th anniversary of the Eichmann trial.  The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other.  The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial.  The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.”  The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish.  Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o Cathy Hutton, the APCML Administrator (c.hutton {at} unimelb.edu(.)au).  Doctoral students are welcome to submit abstracts.  Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin at kheller {at} unimelb.edu(.)au.

My previous post on the Osama bin Laden killing and a number of posts at Opinio Juris have attracted a very productive discussion in the comments, which I would recommend to all readers who haven’t seen it already. The key issue that has emerged in this discussion is whether the legality of OBL’s killing depends on whether the US forces could have captured him through non-lethal means rather than killed him; if they could have, then according to some commentators they should have, and if they didn’t the killing was unlawful. Other commentators dispute this argument quite strongly. I offered some tentative thoughts on this in my earlier post, which I’ll develop here further, particularly as more pertinent facts have emerged since.

Let me first outline my view on the applicable law. To simplify matters, let us accept arguendo that I am right that human rights law, namely the ICCPR, applied extraterritorially to the killing of bin Laden, i.e. that the US had the obligation to respect OBL’s rights under the treaty and not deprive him of life arbitrarily, per Art. 6 ICCPR. Let us also accept that I am wrong in saying that IHL was probably inapplicable to his killing, and postulate further not only that IHL applied, but that OBL was a lawful target in some armed conflict of whatever nature (e.g. as a member of an organized group, or as a civilian directly participating in hostilities). Or, if you will, let us just postulate that OBL was killed in Abbottsville, Ohio rather than in Abbottabad, Pakistan. By so doing, we would be dealing with a military strike by a state within its territory in the course of an armed conflict, international or non-international, and would thus be avoiding the issues of self-defense/jus ad bellum and the extraterritorial application of human rights treaties which are not pertinent for the following analysis. The central issue that I will be dealing with will be the relationship between IHL and IHRL.  (My more exhaustive examination of this topic can be found in this article, which I will drawing upon for the purposes of this post).

First, what do the two bodies of law say about intentional deprivations of life? The situation is, in my view, relatively clear under both regimes. Under IHL, the lawfulness of attacking a target depends on its status (which we’ve postulated for the purposes of this post). A combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated. Contrary to some recent suggestions by Nils Melzer, both in the course of his academic work and in the ICRC DPH guidance, IHL does not impose a necessity requirement for attacking a target possessing such a status. In other words, there is under IHL no obligation to first employ non-lethal means against a lawful target, or to capture or detain before trying to kill. Shooting first is perfectly proper. Thus, again postulating some relevant type of status for OBL, under IHL he could have been shot and killed at any time. The fact that he himself was not carrying a weapon is immaterial; he would still have been a lawful target due to his status, just like Ghaddafi is a perfectly lawful target despite not carrying any arms under those flowing robes of his. The only way in which OBL could immunize himself from targeting would be if he clearly announced his intention to surrender or was incapacitated, i.e. rendered hors de combat.

IHRL, on the other hand, does not vary its protections on the basis of an individual’s status, and is of course far more life-protective than IHL. Deliberate use of lethal force is lawful only if absolutely necessary; non-lethal means must be exhausted first. A person may be targeted only if he poses danger to the lives of others; the danger should generally be immediate, but that requirement might perhaps be loosened if the level of danger is higher. But even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible to do so, bearing in mind all of the circumstances. Thus, if it was in fact perfectly possible for the Navy SEALS to kill OBL’s armed cronies and then to capture OBL himself, then OBL should not have been killed; his death would have been an arbitrary deprivation of life within the meaning of Art. 6 ICCPR. This is obviously a highly fact-dependent assessment, and we still don’t know all the facts – and we may never do. In making this assessment, it would be necessary to weigh the risk to the lives of others, including the US soldiers, in attempting to capture OBL alive, as well as the risk that he might escape if non-lethal means were used. In any case, however, OBL couldn’t have been lawfully killed simply because it was (vastly) easier than detaining him and putting him on trial. Similarly, so long as capture was practically feasible, the fact that OBL did not take active steps to surrender (rendering himself hors de combat in terms of IHL) doesn’t mean that he could have been targeted, as he was unarmed and posed no immediate danger to anyone.

(more…)

Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.

As for the jus ad bellum, it is unclear at this time whether the Pakistani government – parts of whose security apparatus undoubtedly harboured and protected OBL – consented to the use of force by the US on Pakistani soil. The Pakistani government has not yet publicly expressed its views on the matter; all things considered, however, it seems such consent was given. If it was not, then the US would have to argue self-defense in killing OBL, which is of course a complex question. At any rate, it is for Pakistan to raise a jus ad bellum issue, and it does not seem at all politically likely that they will now say, oh yes, we’ve been hiding OBL for years now, but the US had no right to violate our sovereignty.

As for IHL, the jus in bello, it either does not apply at all  as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

As for IHRL, as readers are aware the US argues that the ICCPR does not apply extraterritorially, e.g. to a targeted killing in Pakistan. That position is in my view incorrect. No matter how despicable, OBL was a human being with human rights, and he was protected by the ICCPR – but his human rights were still not violated. IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.

The report of the Panel of Experts appointed by the UN Secretary-General to investigate the circumstances of the conclusion the Sri Lanka war has been made public today – full report here, BBC News article here. The report was disclosed to the Sri Lankan government a few weeks ago; regrettably and quite predictably, the government already dismissed it as incorrect and biased. As in many other cases of conflict and atrocities inspired by ethnic nationalism, several competing versions of reality have already emerged. While the government claims that it pursued a policy of zero civilian casualties, the Panel report paints a very different picture, finding widespread violations of international human rights and humanitarian law on both sides, but particularly on that of the government.

On the legal side of things, one of the appointed experts was the well-respected international lawyer Steve Ratner, professor of international law at the University of Michigan Law School. The report’s discussion of the applicable law and legal findings, at p. 52 et seq, seem to me to be more or less watertight. There are no flights of fancy here; even when broad or progressive, the legal findings are appropriately cautious when caution is warranted (e.g. as to whether non-state actors are bound by human rights, at para. 188).

The Panel has recommended that the Secretary-General establish an independent international investigative mechanism; he has refused to do so absent the consent of the Sri Lankan government or action by other member states. The Sri Lankan conflict has been overshadowed by other events and the international community has been remarkably passive with regard to the war crimes committed in its conclusion. Hopefully this report will not be the end of the matter.

(I would have quoted a number of paragraphs from the report, but whoever made that PDF disabled the copy and paste functions, which is really stupid beyond belief. I do hope somebody fixes that.)

UPDATE: Dov Jacobs has most helpfully created a quotable version of the report, which is available here: http://www.mediafire.com/?tl6szs1uo2991vx

The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics.  It is among the oldest publications at the international level in the areas of military/security law and the law of war.  For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world.

On the occasion of the 50^th Anniversary of its foundation, a dedicated issue of the Review’s 2011 Volume will deal with ‘The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends’. Another issue of the 2011 Volume will mostly concern the current military operations in Libya.

The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends

Articles related to this topic should in principle be between 2500 and 6000 words long (footnotes included) and should be submitted by 15 July 2011 at the latest.  The Editorial Board welcomes in particular contributions from current/former civilian/military legal advisors who have experience in this field.  Contributions should focus on legal questions associated with the conduct of operations (taking jus in bello and international human rights law, as applicable, duly into account) and may embrace one or more of the strategic, operational, or tactical level perspectives.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 31 August 2011.

Selected papers may also be circulated as background readings at the International Conference on Military Justice, to be held in Rhodes (Greece) from 28 September 2011 to 2 October 2011, organized by the International Society for Military Law and the Law of War.  This conference will see the organization of separate special panel on ‘The Role and Responsibilities of Legal Advisors in the Armed Forces’.  Selected authors will receive an invitation to attend this conference, including the special panel, and may be approached to present their paper to the participants.

This initiative is intended to be the starting point for a continuing global dialogue on the same topic, under the auspices of the International Society for Military Law and the Law of War, with a view to promoting the rule of law worldwide.  It is understood that this dialogue will also benefit from contributions addressing legal aspects of cooperation between armed forces and civilian government agencies as well as with private sector entities (such as contractors and non-governmental organizations).

Military Operations in Libya

Articles discussing legal questions associated with the current military operations in Libya should be submitted by 15 September 2011.  The Editorial Board welcomes brief contributions (about 3000 words – footnotes excluded) as well as larger contributions (about 6500 words – footnotes excluded) from practitioners and scholars.  Focus areas may include – but are not limited to – questions regarding the interpretation and application of Chapter VII of the UN Charter (e.g. the measures carried in the framework of the ‘No-Fly Zone Plus’ and the embargo operations), including in relation to the Responsibility to Protect (in the context of which recent UNSC Resolutions regarding Cote d’Ivoire may also be considered relevant); the manner in which Balkans/Rwanda Lessons Learned have been taken into account in the decision-making process concerning UNSCRs 1970 and 1973; the conduct of operations; and the legal ramifications of the recognition of and cooperation with the Libyan insurgency.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 1 November 2011.

The Editorial Board may be contacted at: soc-mil-law {at} scarlet(.)be

Wanted Dead or Alive? The Use of Unmanned Drones in Current Conflicts as a Legal Challenge

Since his inauguration, US President Barack Obama has ordered over 120 drone attacks on Pakistani territory. Targeted killings and the use of drones by the US administration raise serious questions of international law. Are the killings covered by the right to self-defense under the UN Charter? Is the lack of a judicial trial justified under human rights law? Are states allowed to concede the right to kill to other states? These are just a few of the numerous questions you can address in your essay. We are looking forward to your ideas!

Deadline: 29 July 2011.
Max. word count: 3 000 words (without footnotes).

If you would like to write an article or are already working on the subject, send in your essay! The best article will be published in the Goettingen Journal of International Law – GoJIL 3 (2011). If you have any questions, please feel free to contact us at info {at} gojil(.)eu!

The Third ILDC Colloquium on ‘Domestic Courts as Agents of Legal Development’ is to be held in Glasgow on 19 and 20 May 2011. The Third ILDC Colloquium, part of COST Action 0602 on International Law in Domestic Courts, is organized by the Amsterdam Center for International Law of the University of Amsterdam and the School of Law of the University of Glasgow.

The Colloquium will address the function of domestic courts as agents for the development of international law, will aim to give a detailed account of domestic court influence on international law, and to help clarify the general problem of how to situate domestic courts within the international law-making process.

Registration is open, and those interested can find the Colloquium’s programme, as well as information about registration and accommodation on the Colloquium’s website.

Today the Court by 10 votes to 6 upheld a preliminary objection by the Russian Federation that it lacked jurisdiction in its dispute under CERD with Georgia, as Georgia failed to exhaust a preliminary requirement under Art. 22 CERD to attempt to resolve the dispute by negotiation before submitting it to the ICJ. The press release and summary are available here; the judgment will be available shortly.  The Court in effect overturned its (provisional) earlier finding in its provisional measures decision a few years back that Art. 22 did not impose such an obligation. In part at least due to changes regarding the composition of the bench, the erstwhile majority became the minority. I’m sure the dissenting opinions will be well worth a read.

My friend Claus Kress yesterday brought to my attention a most pertinent legal issue: In Resolution 1970, the UN Security Council imposed an arms embargo on Lybia. The embargo was reaffirmed and strengthened in op. paras. 13-16 of Resolution 1973. The embargo appears to be comprehensive; no explicit exception is made for the possible distribution of arms to the rebels. However, both President Obama and Prime Minister Cameron have deliberately left open the possibility of supplying arms to the rebels, even though they have not done so for now. What then is the legal argument in support of supplying the rebels with armaments? Yesterday Secretary Clinton remarked that “It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” She was echoed today by the PM in Parliament, who said that “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” This position was confirmed by the UK foreign secretary.

This argument raises serious questions of interpretation and of the deliberate ambiguity in the drafting of UNSC resolutions. On the one hand, there are specific provisions imposing an arms embargo without exceptions. On the other, a broad phrase such as ‘all necessary measures’ is taken as overriding the embargo, thus allowing foreign powers to favour one of the parties to the armed conflict. I am not saying that this argument is necessarily wrong, but its correctness is also far from obvious. It is of course tantamount to saying that the provision of arms to organized armed groups can be a method of protecting civilians or civilian populated areas; it also has the Council taking sides in a conflict, without saying so explicitly. I am not aware of similar arguments being made so forcefully by states with regard to UNSC arms embargos – though of course recall the embargo imposed on Bosnia, and the Bosnian argument that it was void as it disabled the Bosnian Muslims to defend themselves from genocide, in conflict with a norm of jus cogens.