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Home Archive for category "EJIL Analysis"

The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

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The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

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IHL Does Authorize Detention in NIAC: A Rejoinder to Rogier Bartels

Published on February 24, 2015        Author: 

We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.

Equal protection versus equal status

The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.

As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:

If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.

The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier: Read the rest of this entry…

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The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?

Published on February 18, 2015        Author: 

Angela Merkel, Chancellor of Germany, brought renewed attention at the Munich Security Conference this month to the Budapest Memorandum, an instrument adopted some twenty years ago by Ukraine, the Russian Federation, the United Kingdom and the United States.  The Chancellor said that the Russian Federation, by invading eastern Ukraine and annexing Crimea, “has broken its commitment to the Budapest Memorandum.”  Merkel asked, “Who would give up their nuclear capability if their territorial integrity were not respected?”

The Budapest Memorandum, or to give its long form title, Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), was adopted in connection with Ukraine’s agreement at the time to relinquish the nuclear weapons in its territory, these having formed a substantial part of the arsenal of the former USSR.  In its Declaration at time of accession to the NPT, Ukraine further stated that “[t]he threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from a nuclear power… will be considered by Ukraine as exceptional circumstances which jeopardize its interests.”  The Russian Federation in 2014/2015 clearly is in breach of the terms of the Budapest Memorandum.  The Russian Federation, under paragraph 1, “reaffirm[ed]” its commitment “to respect the independence and sovereignty and the existing borders of Ukraine.”  Even if crediting the Russian Federation’s arguments for use of force against Ukraine, forced annexations and separations of territory constitute breach, and of a serious character—points further addressed in my forthcoming book, Aggression against Ukraine: Territory, Responsibility and International Law. Read the rest of this entry…

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IHL Does Not Authorise Detention in NIAC: A Reply to Sean Aughey and Aurel Sari  

Published on February 16, 2015        Author: 

As noted by Sean and Aurel, the appeals proceedings in Serdar Mohammed v Ministry of Defence have sparked a renewed debate about detention in non-international armed conflict (NIAC). They have set out their arguments in an interesting article and in summary form in this post. I am not convinced by their arguments though, and despite the fact that certain provisions of the law of NIAC address the restriction of liberty or otherwise recognize that on occasion persons will be held by a party to the conflict, I do not see any authorisation for detention in the black-letter, or customary, law of NIAC. In this reply, I address some of the arguments made in favour of finding such authorisation and put forward an opposing view, in support of Leggatt J’s judgment.

Sean and Aurel, and others claiming that authorisation to detain must exist because it is (partially) regulated, fail to acknowledge that the entire body of post-WW2 IHL shows that the regulation of a situation (or behaviour) does not make the occurrence of that situation legal or authorised. The pragmatism of the ICRC and the recognition that conflicts would continue to occur and regulation of the behaviour of warring parties would continue to be necessary, despite the UN’s insistence that no further need for regulation was necessary after the adoption of the UN Charter that outlawed aggression, does not make it legal to wage war. The fact that rules were adopted for NIAC, did not give armed groups any authorisation to fights their governments (or each other). Nor did it authorise governments to take action against such armed groups. Instead, IHL explicitly recognises that sovereign States had that right, independent of IHL. Read the rest of this entry…

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The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer

Published on February 12, 2015        Author: 

In a recent post on ‘The Airstrikes against Islamic State in Iraq’ (hereafter “the post”), Dapo Akande and Zachary Vermeer argue that the legal justifications given by the states intervening in Iraqseem to count against the existence of [a prohibition on intervening in civil wars] as part of contemporary international law”. The aim of this post is to question such a conclusion. It will deal with three main issues: the alleged generality of those legal justifications (1); their ability to reveal the opinio juris of the intervening states (2); and the situation in Iraq as a “civil war” in the sense of the 1975 resolution of the Institut de Droit International (IDI), which prohibits any intervention in civil wars (3).         

Generality of the legal justifications

Dapo Akande and Zachary Vermeer’s above-mentioned conclusion is based notably on the alleged “generality” of the legal justifications given by the intervening states in Iraq. After positing that Iraq is engaged in a civil war under the 1975 IDI resolution (an assumption I challenge below), they conclude that the “general” justifications offered for intervention imply that states consider that it is always legal under international law to intervene at the request of a government during a civil war. However, a closer look at the legal justifications offered, including those not mentioned in the post, reveals that, when justifying their intervention, all the states expressly referred to the objective of fighting against the Islamic State (ISIL) as the specific purpose of the consent given by the Iraqi authorities for their intervention. In other words, in the Iraqi case, the consent given by Iraq to intervene on its territory was generally considered only in relation to this specific purpose.

In the declaration of the senior US administration official quoted in the post, as in President Obama’s notification to Congress (also and only partially quoted), “[the] actions” that the United States had been invited to take at the request of the Iraqi government were clearly actions against ISIL. More precisely, in Obama’s words, they were the “necessary actions against these terrorists in Iraq and Syria”. With regard to the declaration of France, in particular the speech by the French Minister for Defence before the French Senate, the French Minister clearly stated (after the passage reproduced in the post): “I remind you: we are responding to the request for support of the Iraqi authorities to weaken the terrorist organization Daesh.” (translated from French, emphasis added). Moreover, on 19 September 2014, the French President expressly stated in an official declaration: “Yesterday . . . I announced my decision to respond to the request of the Iraqi authorities and to grant them the support necessary to fight against terrorism.” (translated from French, emphasis added). Read the rest of this entry…

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IHL Does Authorise Detention in NIAC: What the Sceptics Get Wrong

Published on February 11, 2015        Author: 

As Serdar Mohammed v Ministry of Defence hits the English Court of Appeal, the blogs have lit up with comments, criticisms and predictions. In recent posts published at Just Security and Opinio Juris, Ryan Goodman, Kevin Jon Heller and Jonathan Horowitz (see here, here and here) have joined with Marko Milanovic and Lawrence Cawthorne-Hill and Dapo Akande (see here, here and here) in defending the view that IHL does not provide States with a legal authority to detain persons in a non-international armed conflict (NIAC). In this post, we wish to outline our challenge to this proposition as mistaken in law and undesirable as a matter of policy (for a more detailed version of our argument, see our recent article in International Law Studies here).

The nature of the law of war

In Serdar Mohammed, Mr Justice Leggatt relied on five arguments to deny the existence of a legal authority to detain under IHL in NIACs (paras 228–251). Despite his meticulous analysis, we do not find the reasoning persuasive. None of the five arguments exclude the possibility that a legal basis for detention exists under customary international law. Even if correct, they establish only the absence of an implicit legal basis under Common Article 3 (CA3) of the Geneva Conventions of 1949 and the relevant provisions of Additional Protocol II of 1977 (AP II). However, Leggatt J’s reading of these provisions is too narrow. In particular, it misconstrues the nature and purpose of IHL as a body of law.

According to Leggatt J, the purely humanitarian purpose pursued by CA3 and AP II is inconsistent with the idea that they were designed to confer a legal power of detention (para. 244). Although humanitarian imperatives have played a central role in the development of modern IHL, they have never been its sole preoccupation. Its other purpose has always been the regulation of hostilities. Focusing on the humanitarian aspects of IHL at the expense of its warfighting dimension ignores its fundamentally dual character. In particular, it fails to appreciate the role played by the principle of military necessity. As Nils Melzer has explained, the ‘aim of military necessity as a principle of law has always been to provide a realistic standard of conduct by permitting those measures of warfare that are reasonably required for the effective conduct of hostilities, while at the same time prohibiting the infliction of unnecessary suffering, injury and destruction’ (Melzer, Targeted Killing in International Law, 279–280). The principle therefore serves both a restrictive and a permissive function. Read the rest of this entry…

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On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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Too Soon for the Right to Hope? Whole Life Sentences and the Strasbourg Court’s Decision in Hutchinson v UK

Published on February 5, 2015        Author: 

Monday’s judgment by the European Court of Human Rights in Hutchinson v UK may have slowed progress towards the goal of ending whole-life sentences in the Council of Europe. That goal appeared to be edging closer after the Grand Chamber’s 2013 ruling in Vinter & Ors v UK, but Monday’s judgment suggests that it is still too soon to speak of a ‘right to hope’ (to use the language favoured by Judge Power-Forde in his separate opinion in Vinter). The court’s Fourth Section held in Hutchinson that the prospect of executive review of the applicant’s sentence (in the form of a discretion exercisable by the Secretary of State to release prisoners in exceptional circumstances) satisfied the requirements of Article 3.

The applicant in Hutchinson was sentenced to life imprisonment upon conviction of burglary, rape and triple murder. He argued that, following Vinter, whole life sentences with no possibility of parole are inhuman and degrading. However, the Grand Chamber’s judgment in Vinter left a loophole, and the court in Hutchinson marched through it. The loophole was the discretion of the Secretary of State for Justice under s30(1) of the Crime (Sentences) Act 1997 to release life prisoners on licence in certain circumstances. In the language of the statute, the circumstances must be ‘exceptional’ and they must warrant release ‘on compassionate grounds’. The Ministry of Justice ‘Lifer Manual’ elaborates further. It provides a list (purporting to be exhaustive) of the grounds on which the discretion will be exercised. They are: where the prisoner is terminally ill; death is likely to occur shortly (a period of three months is mentioned as a guide); appropriate care can be provided outside prison; there is a ‘minimal’ risk of reoffending; and ‘further imprisonment would reduce the prisoner’s life expectancy’. The Grand Chamber in Vinter concluded that ‘compassionate release of this kind’ did not provide a realistic ‘prospect of release’ as required by Article 3 (p45, §127).

That seems straightforward enough, but here comes the twist. The UK had submitted in Vinter that it was possible to read s30 as imposing a duty on the Secretary of State to release a prisoner if detention had ‘become incompatible with Article 3, for example, when it can no longer be justified on legitimate penological grounds’ (p44, §125). The Grand Chamber accepted that this reading of s30 ‘would, in principle’ comply with Article 3 (p44, §125), and that executive review of a whole life sentence can suffice (p43, §120). However, ‘the present lack of clarity’ for life prisoners as to whether their sentences were reducible (p45, §129) contravened Article 3.  Read the rest of this entry…

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Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

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