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Home Archive for category "EJIL Analysis"

Joint Series on International Law and Armed Conflict: Chris Jenks on Coalition Operations & the Obligation to Investigate IHL Violations

Published on September 28, 2016        Author: 

The third post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Coalition Operations and the Obligation to Investigate IHL Violations’- by Chris Jenks (SMU Dedman School of Law) is now available on Intercross.

Here’s a taste: 

chris-jenksThis post suggests that while the components of the obligation to investigate reasonably suspected international humanitarian law violations are, in most respects, well settled, their application in and to multinational coalition operations is under developed.  Thus far, that result seems to reflect not so much a lack of satisfactory answers on accountability in coalition operations but rather avoidance in asking the questions and acknowledging an inherent tension.

Obligation to Investigate

A number of IHL instruments imply an obligation to investigate alleged violations. Each of the 1949 Geneva Conventions, taken together, require High Contracting Parties to enact legislation to provide effective penal sanctions for those persons committing or ordering to be committed a grave breach; to search for those who commit a grave breach; and to take measures necessary to suppress all acts contrary to the Conventions other than grave breaches. Additional Protocol I to the 1949 Conventions requires military commanders of High Contracting Parties, “with respect to members of the armed forces under their command and other persons under their control, to suppress and where necessary to report to competent authorities breaches….” Finally, the “unquestionable customary norm” from Rule 158 of the Customary International Law Study’s that “States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”

Read the full post over on Intercross.

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Detecting Prohibited Subsidies and Determining Continued Compliance: WTO Panel Rules (Again) for the US in the Airbus Dispute with EU

Published on September 26, 2016        Author: 

On 22 September 2016, the United States Trade Representative (USTR) scored another victory in its long-running dispute with the European Union (EU) over subsidies provided by certain EU Member States to large civil aircraft manufacturer Airbus. The USTR sought to prove that 36 challenged EU measures remained inconsistent with its duty to comply with the rulings and recommendations issued by the WTO Dispute Settlement Body (DSB) after adopting the original 30 June 2010 Panel Report in this case.  Specifically, the US challenged four types of subsidies allegedly made by the EU and/or certain EU Member States to Airbus for continuing inconsistency with the Subsidies and Countervailing Measures (SCM) Agreement: 1) launch aid or member State financing; 2) equity infusions for the corporate restructuring of Aerospatiale and Deutsche Airbus; 3) infrastructure related measures of German and Spanish authorities; and 4) research and technological development funding provided by the EU and certain member States.

The 22 September 2016 WTO Panel Report European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft [hereafter, “2016 Panel Report”] found, among others, that: 1) French, German, Spanish, and UK launch aid or member State financing for the Airbus A350XWB constituted actionable specific subsidies (2016 Panel Report, para. 7.1.c.ii.); 2) the EU and certain member States have failed to comply with their obligation to withdraw the subsidies for other Airbus aircraft (2016 Panel Report, para. 7.1.c.ix.); 3) the EU continues to be in violation of Articles 5(c) and 6.3(a)(b) and (c) of the SCM Agreement by failing to comply with previous recommendations and rulings of the WTO Dispute Settlement Body in the original 30 June 2010 Panel Report (2016 Panel Report, para 7.2); 4) to the extent that the challenged EU measures remain inconsistent with the SCM Agreement, they have nullified or impaired benefits accruing to the US under that Agreement (2016 Panel Report, para. 7.3); and 5) the EU and certain member States failed to bring 34 of its 36 challenged measures into conformity with their obligations under the SCM Agreement (2016 Panel Report, para. 7.4).

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Joint Series on International Law and Armed Conflict: Monica Hakimi on Fair Trial Guarantees in Armed Conflict

Published on September 23, 2016        Author: 

The second post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Fair Trial Guarantees in Armed Conflict’- by Monica Hakimi (Michigan Law) is now available on Lawfare.

Here’s a taste:

hakimiThe fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.

A. The Regulatory Framework

The relevant treaty law can be laid out succinctly. The four Geneva Conventions, the two Additional Protocols, and human rights law all require that criminal trials be fair. The specific language and requirements of each instrument vary, but the key parameters are similar. (The relevant provisions are GCI art. 49; GCII, art. 50; GCIII arts. 84, 86, 99, 102–08; GCIV arts. 5, 64, 66–75, 117; common art. 3; API art. 75; APII art. 6; and ICCPR art. 14.)  In short, a court must: (1) be independent, (2) be impartial, and (3) afford defendants basic guarantees. A court is independent if it has the ability to conduct its business without undue external interference. It is impartial if its decisions rest on the evidence before it, without any predisposition toward one side or the other.

Common Article 3 does not list specific guarantees for criminal defendants in NIACs; it simply requires that defendants be afforded “all the judicial guarantees which are recognized as indispensable by civilized people.” Other treaty provisions identify what these guarantees might be. The provisions that apply in international conflicts, Additional Protocol II (which governs a subset of NIACs), and human rights law all require: (a) a presumption of innocence, (b) prompt notification of the offenses, (c) charges based on individual responsibility and offenses prescribed in law, (d) means to present a defense, (e) presence at trial, (f) a right against self-incrimination, and (g) notification of remedies. Three other guarantees are listed in the treaty provisions for international conflicts and in human rights law—but not in the provisions that specifically govern NIACs: (h) trial without undue delay, (i) open proceedings, and (j) no double jeopardy.

Read the full post over on Lawfare.

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Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity

Published on September 23, 2016        Author: 

Many say that there is “tribunal fatigue”. International tribunals have been said to be too costly and too slow. It has become clear that the ICC can only deal with a few situations. Calls for the establishment of new ad hoc tribunals, for instance in relation to MH17 or Syria, have not succeeded. Instead, we have seen a trend towards “new hybridity”, namely the establishment of special judicial mechanisms. The United Nations Mechanism for International Criminal Tribunals (the ‘Mechanism’) and the newly established Kosovo Specialist Chambers and Specialist Prosecutor’s Office (formally Kosovo Relocated Specialist Judicial Institution) are part of this trend. The name of both institutions indicates caution and compromise. The title “tribunal” was avoided. The two institutions are representative of a broader turn to hybridity in international criminal justice. In this post, I will discuss some of their distinct features and challenges.

I. The status quo: International justice 4D

Let us start with the status quo. International criminal justice has traditionally recognized two main forums to investigate and try international crimes, namely domestic and international jurisdiction.

National courts have traditionally been the main forum, given that international crimes have domestic roots. In recent years, more and more States have adopted specialized laws or special prosecution units to investigate and prosecute international crimes (e.g., Guatemala, Colombia, Uganda).

The second forum is international jurisdiction. International institutions have been seen as necessary corollary to domestic jurisdiction in specific circumstances. As Judge Röling argued, international crimes are violations of “international law”, hence “an international judge should try the international offences”. This led to the turn to fully international courts and tribunals, such as the ad hoc tribunals and the ICC. Read the rest of this entry…

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Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict 

Published on September 22, 2016        Author: 

As noted yesterday, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The first post in the series is by Nehal Bhuta on fair trial guarantees in armed conflict.

The protection of fair trial rights during international and non-international armed conflicts might reasonably be seen as an area where the convergence between international humanitarian law (IHL) and international human rights law (IHR) is considerable, and in which the co-application of the two bodies of international law results in “interpretive complementarity” in respect of specific guarantees contained in both legal regimes. It should be noted at the outset that a person detained for the purposes of criminal prosecution during an international or non-international armed conflict is within the jurisdiction of the prosecuting state for the purposes of international human rights law whether the person is within the territory of the detaining state or not. At the same time,  that state may also be a detaining power, an occupying power or a party to a conflict on its own territory (even if part of that territory may be outside its effective control).

In this short post, I wish to raise for discussion areas of tension and uncertainty in the relationship between IHL and IHR in fair trial guarantees during an armed conflict. I first address the question of whether IHL countenances different understandings or interpretations of specific fair trial guarantees protected in both IHL and IHR. I then turn to the related question of whether derogation provisions can and should be invoked in order to give effect to IHL-based interpretations of a fair trial right over an IHR-based construction of the right. Finally, I examine some dilemmas associated with countenancing the possibility of courts constituted by armed groups as conducting fair trials under IHL.

Fair Trial Guarantees under IHL and IHR

The fair trial guarantees contained in IHL are expressed in the following general formulations found in the Geneva Conventions (GC) and Additional Protocols (AP I and II):  Read the rest of this entry…

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Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 21, 2016        Author: 

In late July, a group of academic, military, and governmental experts from both sides of the Atlantic gathered at the University of Oxford for the fourth annual “Transatlantic Workshop on International Law and Armed Conflict”. The roundtable, held under the Chatham House Rule, and which this year included participants from Australia was held over two days and examined contemporary questions of international law relating to military operations.

This year’s event placed a particular emphasis not only on some substantive issues relating to the conduct of hostilities (such as targeting of “war sustaining” objects and the principle of proportionality), but on procedural obligations arising under the law of armed conflict. The procedural obligations discussed include the obligations of parties: to engage in review of the lawfulness of detentions in the armed conflict; to guarantee fair trials for those prosecuted for offences related to the conflict; and to investigate suspected violations of the law of armed conflict. Discussion of these procedural obligations focused on the content and scope of these obligations. The sessions also examined the extent to which these obligations apply to (and are capable of being fulfilled in) non-international armed conflicts and non-state armed groups. Inevitably, the sessions also considered the relationship between the procedural obligations imposed by international humanitarian law and those which may arise under international human rights law. To what extent should the latter inform the former?

Some of those who attended the workshop have agreed to participate in a series of blog posts focusing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post represent’s the different authors’ perspectives, and not necessarily those of anyone else at the workshop, nor any of the institutions represented. The blogposts focus almost exclusively on procedural obligations in the law of armed conflict. In addition, there will be a post on the principle of proportionality under IHL. Although proportionality imposes a substantive obligation on parties not to cause damage or casualties which are excessive in relation to the anticipated military advantage, arguably, the attempts to achieve conformity with this obligation tend to be effected through particular processes and procedures . Read the rest of this entry…

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Al-Saadoon and the Duty to Investigate

Published on September 16, 2016        Author: 

On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. Read the rest of this entry…

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English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Published on September 14, 2016        Author: 

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

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European Union 2: A Revolutionary Response to a British Coup d’état

Published on September 8, 2016        Author: 

The antipathy towards the European Union reflected in the British Referendum of 23 June 2016 is shared by many people across the whole of Europe. As Jürgen Habermas has said: “the British vote also reflects some of the general state of crisis in the EU and its member states”. (Die Zeit, July 12, 2016.)

An unexpected moment of further European disintegration offers a unique opportunity to make the unloved EU into what it could be. The citizens of Europe should force the governments of Europe to make possible a European Union 2, an enterprise that a majority of British people might support, even if they were still not able to love it.

We are living through a time of exceptional disorder and danger throughout the world. A very bad time is a good time to plan a better future. In the dark days of the Second World War, governments were already planning new social security systems, new education systems, new public health systems, a new world financial system, and a United Nations to replace the League of Nations.

There are realistic principles underlying a project of European Union. It can be a close partnership of independent nations pursuing their unique and precious destinies, but seeking also the huge gains that come from acting together to serve a common interest. Their national interest contains also the common interest that they share.

Such a partnership is a sharing of the power of 500 million people. We have a common interest in responding effectively to a world that threatens our survival and prosperity, politically and economically and culturally, and even our physical survival.

But we also share a special responsibility to help to make the present chaotic and dangerous world into a better world. It is something that Europe owes to the world, a world that is very much the world that Europe made, for better and for worse. Read the rest of this entry…

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Filed under: EJIL Analysis, European Union
 

Missing the Mark: Reprieve, ‘Kill Lists’ and Human Rights Advocacy

Published on September 6, 2016        Author: 

Deception, lies, murder, conspiracy. This is the stuff of crime novels. It is also the story spun in a report published earlier this year by Reprieve, a human rights charity active in the UK and the US. In its report, entitled ‘Britain’s Kill List’, Reprieve claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project:

On September 7th, 2015, Prime Minister David Cameron came to Parliament and announced a “new departure” for Britain, a policy of killing individuals the Security Services and the military do not like, people placed on a list of individuals who the UK (acting along with the US and others) have identified and systematically plan to kill. The mere admission that there is a Kill List certainly should, indeed, have been a “departure” for a country that prides itself on decency. Unfortunately, it was not a “new departure” at all, as we had been doing it secretly for more than a decade.

Reprieve alleges that the British Government has been complicit in preparing and executing a ‘kill list’ for years, that such a ‘kill list’ is incompatible with the rule of law and that the Prime Minister has deceived the public about Britain’s involvement in this ‘disturbing’ practice. These are serious allegations, which merit a response, even a belated one. All the more so, since on closer inspection they reveal an astonishing appetite for sensationalism and disregard for accuracy.

Who is deceiving Parliament and the public?

On 7 September 2015, former Prime Minister David Cameron announced to the House of Commons that the Royal Air Force carried out a drone strike on 21 August 2015 inside Syria against Reyaad Khan, a British national and member of ISIL. The strike killed Khan and two other members of ISIL. By declaring that the operation was a ‘new departure’ for Britain, Reprieve claims that the Prime Minister has deceived Parliament and the people (pp. 5 and 7), given that this was not the first occasion the UK has acted upon a ‘kill list’. Indeed, much of Reprieve’s report is preoccupied with demonstrating that the UK has contributed to a ‘kill list’ well before the Prime Minister made his announcement to Parliament. Read the rest of this entry…

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