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Russian Agents Charged with Downing of MH17; MH17 Cases in Strasbourg

Published on June 20, 2019        Author: 

Yesterday international investigators charged three Russian nationals and one Ukrainian national before Dutch criminal courts for the 2014 downing of Malaysian Airlines flight MH17 over Ukraine. According to a report in the Guardian:

The suspects were named as Igor Girkin, a former colonel of Russia’s FSB spy service; Sergey Dubinskiy, employed by Russia’s GRU military intelligence agency; and Oleg Pulatov, a former soldier with the GRU’s special forces spetsnaz unit. All were Russian soldiers previously sent abroad.

A fourth suspect, Leonid Kharchenko, is a Ukrainian. He led a military combat unit in the city of Donetsk as a commander, it was alleged.

Girkin was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). He was the commander of the DNR when the plane was shot down on 17 July 2014. Dubinskiy served as Girkin’s deputy in the DNR, and Pulatov was Dubinskiy’s deputy. Kharchenko was under their command.

Investigators said the soldiers “formed a chain linking DNR with the Russian Federation”. This link was how the separatists obtained heavy equipment from Russia including the Buk launcher used to fire at MH17 with “terrible consequences”.

The accused did not push the button themselves but were responsible for bringing the anti-aircraft system to eastern Ukraine. They could therefore be held criminally liable and charged with murdering 298 people, investigators said.

Readers will recall that last year the investigators and the Dutch and Australian governments formally attributed the downing of MH17 to Russia. Yesterday, however, saw the first criminal charges brought against specific individuals. Obviously, it remains highly unlikely that any of them will face trial in the Netherlands in the foreseeable future, unless they are unwise enough to travel abroad, although they will likely be tried in absentia.

There have also been interesting developments about litigation regarding MH17 in the European Court of Human Rights. Back in 2014 I suggested that the families of the victims may decide to bring cases against both Russia and Ukraine:

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

At least two such cases have indeed been brought and have been communicated by the Court to the respondent governments for pleadings on admissibility and merits.

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20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?

Published on May 29, 2019        Author: , and

Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).

Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol). Read the rest of this entry…

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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 

In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and

Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

Published on April 11, 2019        Author: 

Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians. 

Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance

The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.

Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach,  which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, Read the rest of this entry…

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Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 

On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

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Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 

Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

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The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences

Published on March 20, 2019        Author: 

On 8 March, the Chamber of Indictments of the Court of Appeal of Brussels decided to discontinue the prosecution of thirty-nine individuals and two media companies affiliated to the Kurdistan Workers’ Party (PKK). All were being prosecuted for participating in the activities of, or directing, a terrorist group. The Federal Public Prosecutor’s Office had opened the investigation in 2006, and initially also alleged that the Belgian branch of the PKK was responsible for (forcibly) recruiting young Kurds to partake in the conflict with Turkey. However, any specific charges in this respect were dismissed in 2017 due to a lack of evidence.

The judgment forms the (provisional) ending to a procedural saga. On 13 February last year, the Court of Cassation had largely annulled a similar decision by the Chamber of Indictments of 14 September 2017 on the ground of a lack of motivation. That 2017 decision had in turn confirmed a decision of the Correctional Pre-Trial Chamber of the Court of First Instance of Brussels of 3 November 2016. Strikingly, throughout the case, the Turkish state had been a civil party and thus fully joined the prosecution in its argumentation. Not surprisingly, the decisions have caused fierce reactions from Turkey, which has summoned the Belgian ambassador in Ankara to protest the 8 March ruling, calling it ‘unacceptable’ (see here).

This post first explains the IHL exclusion clause, which forms the basis on which Belgian courts have decided to discontinue the prosecution of PKK members. It then briefly addresses how Belgian courts have struggled to apply the clause in other cases, goes over the earlier PKK judgments, and concludes with a short analysis of the decision of 8 March and its implications. Read the rest of this entry…

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Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 

Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

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Joint Symposium: Chatham House Paper on Proportionality in the Conduct of Hostilities

Published on February 4, 2019        Author: 

This is the final post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment.

The new research paper published by Chatham House on Proportionality in the Conduct of Hostilities is a rigorous and thoughtful exposition of the civilian side of the notion of proportionality under international humanitarian law (IHL). This brief post focuses on three points that are raised by the paper: first, the way in which certain difficult questions concerning the reach of proportionality considerations are addressed; second, the question of the status of the natural environment; and third, the potential impact of the paper.

The proportionality calculus calls for a comparison of the expected incidental harm to civilians caused by an attack and the concrete and direct military advantage anticipated. Amongst the many difficult questions that arise from this formulation is the reach of the test, e.g. what type of harm is included, psychological or only physical harm? When might harm be considered as having been ‘caused’ by an attack? Does it include so-called ‘reverberating’ harm, manifesting sometime after an attack (as in the case with unexploded cluster sub-munitions)?

The research paper addresses this question of the reach of the proportionality analysis through the dual test of admissibility and weight. This has the significant advantage of offering a more nuanced way of dealing with some of these complicated questions concerning the scope of the proportionality analysis. For example, on the question of reverberating harm, the paper takes the position that ‘the geographic or temporal proximity of the harm to the attack is not determinative’ and should not affect the admissibility of reverberating harm (para 63). Instead, ‘[f]actors such as the passage of time between the attack and the injury, or the number of causal steps between one and the other, may affect the likelihood of the harm occurring and thus the weight to be assigned to it’ (para 64). That reverberating harm, manifesting sometime after an attack rather than at the time of the attack, must be taken into account in assessing proportionality must be right – there is nothing in the Additional Protocol I (API) formulation of the proportionality test that suggests excluding such types of harm. The reference in API is simply to an ‘attack which may be expected to cause incidental’ civilian harm – as the paper states, harm is caused by an attack if, ‘but for’ the attack, the harm would not occur (para 45), regardless of any proximity considerations. Instead, the proximity of expected harm to the attack might be relevant to the weight to be given to that potential harm. Read the rest of this entry…

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