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The European Convention on Human Rights in Non-International Armed Conflict – Revisiting Serdar Mohammed

Published on August 22, 2016        Author: 

The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. Read the rest of this entry…

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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

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Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

Published on August 2, 2016        Author: 

In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…

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Turkey’s Derogation from the ECHR – What to Expect?

Published on July 27, 2016        Author: 

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…

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Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

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ECHR Jurisdiction and Mass Surveillance: Scrutinising the UK Investigatory Power Tribunal’s Recent Ruling

Published on June 9, 2016        Author: 

Last week, as discussed in a post by Marko Milanovic, the UK Investigatory Powers Tribunal (IPT) ruled that it lacked jurisdiction under the European Convention of Human Rights (ECHR) to adjudicate Article 8 and 10 claims brought by persons “situated outside” of the UK (para. 60). The IPT is a specialised judicial body that hears complaints about surveillance by public bodies, including British security and intelligence agencies. IPT decisions are not subject to direct appeal in the UK. We are therefore likely to see this ruling quickly challenged before the European Court of Human Rights (ECtHR).

Background

The backdrop to this litigation is convoluted. I sketch out the context in this post as I believe it will enrich discussion of the jurisdictional issues which are at the heart of this dispute. In 2013, following the Snowden disclosures, Privacy International, together with nine other NGOs, filed a case before the IPT challenging two aspects of the UK’s surveillance regime. First, the claimants challenged UK access to the communications of persons located within the UK collected by the US National Security Agency (NSA) under PRISM and Upstream. Under PRISM, the NSA collected data from US companies including Yahoo and Google. Under Upstream, the NSA intercepted data in bulk from hundreds of undersea fibre optic cables. Second, the claimants challenged Tempora, the British counterpart to Upstream, under which the Government Communications Headquarters (GCHQ) intercepted data in bulk from over 200 cables landing in the UK.

In February 2015, the IPT found that US-UK intelligence sharing – pursuant to PRISM and Upstream – was unlawful prior to 5 December 2014 because the legal framework governing it was hidden from the public (according to the IPT, that framework was sufficiently disclosed over the course of the proceedings so as to render the sharing of intelligence legal from that point forward). Read the rest of this entry…

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The Supremacy of International Law? – Part Two

Published on June 3, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part two of two). Part one is available here.

The relevance, engagement and application of international law in the domestic space are addressed explicitly and implicitly multiple times every day in the course of advice given to governments, advice that never sees the light of day and the issue in respect of which the advice is given only very seldom becoming the subject of litigation. In the course of such advice, it may be that the source of a legal obligation binding on the State assumes great importance. The issue may be, for example, whether the Government may be impleaded in this or that court or tribunal on the issue in question. The jurisdiction of the court or tribunal may thus bring with it questions about the relevant applicable law.

More often than not, though, the important question for consideration and advice is not the source of the obligation but rather its content. If compliance with the law, rather than defence against a claim of breach, is the issue, the source of the law is irrelevant. The State, or the Government, will be bound by relevant and applicable obligations of law whether they derive from national law or from international law.

Let me give you a tangible example. In 2009, the then UK Prime Minister, Gordon Brown, decided that the Government would produce what became known as Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. This exercise emerged from the concern that there was no single, publicly disclosable document that set out how UK military personnel and intelligence officers were to proceed when engaging with foreign States on the question of the detention and interrogation of individuals held in foreign custody.

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The Supremacy of International Law? – Part One

Published on June 2, 2016        Author: 

Editor’s Note: This is the text of the 2nd Annual British Embassy (The Hague) International Law Lecture, delivered on 23 May 2016 (part one of two).

My topic is The Supremacy of International Law? I chose the subject unwisely, seduced by the question mark into the thought that there would be scope for erudition on a subject that, for international lawyers, is the touchstone of the authority and effectiveness of our discipline but dismissed or simply ignored by scholars and practitioners of national law – quaintly described by international lawyers as “municipal lawyers” – as being at odds with the reality of national constitutionalism or the sovereignty of parliament. Having thought about it further, and had the opportunity to look into the scholarship on the subject over recent years, I have settled for the more modest task of trying to illuminate a little more the dimensions of a debate that has both philosophical and practical resonance.

As you will all no doubt be well aware, the UK at the moment is in the throes of a great internal debate. It is at root a debate about identity – whether we are and should be part of Europe or are a mid-Atlantic island with a grand history that should see its future role as a stepping-stone, bridging the western cultural divide. It is about who we are and who we want to be, about harkening back and aspiration in an uncertain world.

But, once we scratch the surface, it is a debate about laws, about where they are made and who has the last say. It is about democracy in law, about the connection between the law and those whom it governs. It is not cast in these terms in the public debates and the fear mongering of politicians but it is in substance a debate about the supremacy of international law.

The international law in focus in this debate is an international law of a special kind, most directly in the frame is European Union law, with its doctrines of supremacy, direct application and direct effect, but following close behind is the Strasbourg law of the European Court of Human Rights that, in living instrument fashion, has turned a treaty into a constitution. The font of both is found in traditional instruments of international law, inter-State treaties of a standard setting and coordinating kind. Both have come a long way since the entry into force of their texts, having shaped and fashioned a community on the continent of Europe that looks to some at times more like a federal society than a collection of nation States. And the issue in both cases is who makes the laws and who has the last say. Most acute of these is who has the last say as there is an appreciation, accurately so, indeed an apprehension (in both senses of this word), that, once the ink on the constitution is dry, it is courts that fashion the society that develops thereon. Read the rest of this entry…

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Snippets on the UK and the ECHR

Published on May 18, 2016        Author: 

Some brief notices on the UK, the ECHR, the planned repeal of the UK’s Human Rights Act and its replacement with a British Bill of Rights that our non-UK readers in particular might find of interest: almost all is quiet on the Western front, but not quite. From today’s Queen’s Speech in Parliament we could only learn that the Government still plans to scrap the HRA and replace with the British Bill of Rights, but we still have no inkling about what exactly that would entail and when. Basically the whole matter is on hold at least while Britain ponders Brexit, and even then it is likely that the new Bill (after extensive consultations) will not make radical changes to the existing HRA framework, other than for appearances’ sake.

Cambridge’s Mark Elliott has more, as does Rightsinfo. Also at Rightsinfo, Adam Wagner and Rebecca Hacker have an excellent post with a bit of colourful statistics showing just how gentle Strasbourg has been to the UK in recent years – which demonstrates not only how much damage the UK has inflicted on the ECHR system over very little real-world intrusion in its affairs, i.e. mostly for petty domestic politics, but perhaps also how (regrettably? consciously?) responsive Strasbourg can be to some state-administered spanking.

Finally, readers might be interested in a new website/blog launched by the estimable Conor Gearty of the LSE, who has a forthcoming book with OUP on the relationship between Britain and Strasbourg, On Fantasy Island. Conor will blog with excerpts from the book, working his way through its main themes: the fantasies, the facts, and the future.

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UK Investigatory Powers Tribunal Rules that Non-UK Residents Have No Right to Privacy under the ECHR

Published on May 18, 2016        Author: 

In another major development on the surveillance/privacy front, on Tuesday the UK specialized surveillance court, the Investigatory Powers Tribunal, ruled that persons not present within the United Kingdom are not within the jurisdiction of the UK in the sense of Article 1 of the European Convention on Human Rights, and accordingly do not have any of the rights under that Convention (para. 49 et seq). In other words, a person in say France or the United States subjected to surveillance by GCHQ does not have an ECHR right to privacy vis-a-vis the UK, which accordingly has no Convention claim to answer. This is I think the first time that a British court has expressly dealt with extraterritoriality in the surveillance context. The IPT’s reasoning essentially rests on a Bankovic analogy – if you are in say Serbia and the UK drops a bomb on you, the Strasbourg Court has said that you don’t have the right to life. How could you then have the right to privacy if all the UK did was to simply read your email while you were in Serbia?

I have extensively argued elsewhere why that analogy is wrong (as is Bankovic itself), so I won’t belabour that point further (see here and here). It was entirely predictable that the IPT would adopt this restrictive position, which is perfectly plausible under Strasbourg case law (even if fundamentally mistaken). The IPT was correct in ruling, however, that distinctions as to the Convention’s applicability can’t really be made on the basis of whether the person is present is some other Council of Europe state, or is outside the ECHR’s espace juridique altogether. Anyway, the issue of the Convention’s extraterritorial applicability to mass electronic surveillance abroad is one for Strasbourg to decide and (hopefully) fix, and it will have the opportunity to do so in these cases and others. What the Court will do is of course anyone’s guess, because its decision will inevitable have ripple effects on other scenarios, such as extraterritorial uses of lethal force, e.g. drone strikes.

I have also argued, however, that there is particular scenario in which the applicability of the Convention becomes more attractive (or less dangerous as a matter of policy) – when the surveillance actually takes place within the surveilling state’s territory, even if the affected individual is outside it. Imagine, for example, if the UK police searched my flat in Nottingham while I was visiting family in Serbia – surely I would have Article 8 rights, even though I would not be on UK territory when the search took place. Why then should I not have these rights if an email I send while I am in Serbia is routed through my university server in Nottingham and intercepted by GCHQ there? In both cases the intrusion into privacy happens on the UK’s territory, even if I am outside it. In fact, in its judgment the IPT briefly addresses this scenario, if all too briefly and less than convincingly, although I’m not sure that the point was extensively argued.

In any case, the main paragraphs on the jurisdiction issue are below the fold. The judgment also deals with the very important question of standing/victim status, finding that all but six of the 600+ claimants lacked locus standi even under a very low threshold of showing that they are ‘potentially at risk’ from surveillance measures (applying the European Court’s recent Zakharov judgment, para. 171).

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