Home Human Rights Archive for category "Extraterritorial Application"

Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

Published on October 5, 2015        Author: 

I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.

The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.

Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.

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Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report Read the rest of this entry…

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Some Thoughts on the Serdar Mohammed Appeals Judgment

Published on August 10, 2015        Author: 

In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.

First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.

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The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts

Published on August 6, 2015        Author: 

Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.

The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).

To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.

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The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

Published on August 5, 2015        Author: 

As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.

The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not. Read the rest of this entry…

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Breaking: Court of Appeal Affirms Serdar Mohammed

Published on July 30, 2015        Author: 

Breaking news: today the English Court of Appeal  unanimously affirmed Leggatt J’s judgment in Serdar Mohammed v. MoD, finding that IHL does not contain authority to detain in non-international armed conflicts. Full (and very lengthy) judgment available here; our earlier coverage is here. Happy to report that some of our earlier posts (three I think) were cited by the Court. Obviously I haven’t yet read all of the decision, but we will have plenty of commentary in the days to follow.  I imagine an appeal to the Supreme Court is virtually inevitable.

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Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments

Published on July 6, 2015        Author: 

Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?

Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

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The Nagorno-Karabakh Cases

Published on June 23, 2015        Author: 

Last week I wrote about one particular aspect of the recent Grand Chamber judgments of the European Court of Human Rights in two cases dealing with the aftermath of the Nagorno-Karabakh conflict: Chiragov and Others v. Armenia, no. 13216/05 and Sargsyan v. Azerbaijan, no. 40167/06, namely the Court’s conclusion that belligerent occupation necessarily requires troops on the ground. I also promised a more comprehensive look at the two (very important) judgments, and here it is. The two cases concerned the aftermath in the conflict, in the sense that they dealt with the right of persons displaced by the conflict to access their property (under Article 1 of Protocol 1 to the Convention), rather than with the conflict itself, which was outside the Court’s temporal jurisdiction. That said, there are numerous noteworthy aspects of these two judgments.

First, there is the cases’ basic structure. Both cases were brought by individuals, but there are more than a thousand other applications pending before the Court with essentially the same issues. While these are formally not pilot judgments in the sense the Court uses the term, they are in fact test cases on the basis of which the Court is set to resolve all of the other pending cases, unless the parties choose to settle them first. And while the cases were brought by individuals, they have a strong interstate dimension, not only because of their politically controversial subject-matter, but because Armenia and Azerbaijan both intervened as third parties in the case in which the other state was the respondent (i.e. Armenia intervened in Sargasyan and Azerbaijan in Chiragov). These were, if you will, interstate cases by proxy.

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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