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Home Archive for category "International Humanitarian Law"

A Really, Really Foggy Report

Published on April 15, 2015        Author: 

Eirik Bjorge has written an excellent critique of the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, by Richard Ekins, Jonathan Morgan, and Tom Tugendhat. I now write only to add a few additional (and apologetically undiplomatic) comments which I think the report warrants. I do so not because it may be substantively wrong in its conclusions and prescriptions, although some of these may be subject to reasonable disagreement. In fact, when it comes to one of the report’s main recommendations, that the UK (and other states parties) should derogate from the ECHR in (extraterritorial) situations of armed conflict, I at least am on the record as arguing that extraterritorial derogations are both permissible and that they can be a good idea.

My problem with the report is hence not with (some of) its conclusions, but with the quality of its analysis, leading to the misdiagnosis of the chief ailment that it identifies – allegedly extravagant judicial overreach. I have to say, regretfully, that the report’s analysis is crude and unsophisticated. It is in fact so crude and unsophisticated that it does a disservice to the overarching position it advances. The report is moreover manifestly clouded by the politics of its authors. Not that there is anything necessarily wrong, mind you, with the report of a right-of-centre (or left-of-centre, or whatever) think-tank demonstrating a distinct political bent. The problem here is rather that the authors allow their political predilections to solidify into a type of confirmation bias that all too easily leads to errors in judgment, argument, and method. Let me explain how and why.

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The Fogmachine of War: A Comment on the Report “Clearing the Fog of Law”

Published on April 13, 2015        Author: 

In the Policy Exchange report Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat, Richard Ekins, Jonathan Morgan, and Tom Tugendhat criticize the European Court of Human Rights at Strasbourg for not disapplying the rights of the European Convention on Human Rights (ECHR) in cases where British troops act abroad. Together the authors have written a report which impresses with its eloquence and conviction, but ultimately leaves something to be desired in terms of how it treats the sources and the method of international law.

The authors focus their attention on what they refer to as ‘a new form of judicial imperialism’(p 7), ‘the cavalier expansion’ of the ECHR (p 46), a development which, in their view, has at least two problematic aspects. First, the provisions of the ECHR, a convention which in their view was meant to be applicable only in time of peace, have been allowed to apply in war. Second, not only has the ECHR, in their view, illegitimately been allowed to apply; it ‘is supplanting and undermining the older and far more suitable body of International Humanitarian Law’ (p 9), for this purpose the four Geneva Conventions.

According to the report, the Strasbourg Court is wrong to have applied the ECHR to the actions of British troops acting abroad, and the Strasbourg Court is wrong to have let the ECHR supplant the rules of international humanitarian law. Such developments, the authors say, are not ‘properly supported by sound legal method’ but rather ‘an instance of over-bearing judicial power’ (p 9), the report arguing in essence that the courts have discarded what the authors term the traditional interpretation of the ECHR which could be summed up as ‘the general understanding that the ECHR did not apply extraterritorially’ (p 11& 46).

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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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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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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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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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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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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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Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

Published on December 1, 2014        Author: 

These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27). Read the rest of this entry…

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After Gaza 2014: Schabas

Published on November 4, 2014        Author: 

In the face of the heart-rending loss and injury of civilian life including children in the recent Gaza conflagration, it was neither unexpected nor inappropriate for the UN Rights Council to announce on 23 July 2014 that it was to launch ‘an independent inquiry to investigate purported violations of international humanitarian law and human rights laws in the Occupied Palestinian Territory, including East Jerusalem’.

People hold very strong views on the rights and wrongs of the Israeli-Palestinian conflict. Articles in EJIL dealing with this topic are always amongst the most downloaded. Passions run high, tempers flare, intemperate language is used. When such is translated into legal writing there is, with some exceptions, a tendency whereby the author’s political and moral views on the conflict translate almost linearly into legal conclusions. I say this with the experience of 25 years on the Board of Editors of EJIL. This is not necessarily an indictment of bad faith or an accusation of ‘brief writing’ disguised as scholarship.  One of the least contested insights of Legal Realism is the manner in which our normative sensibilities and sensitivities condition the very way we experience both facts and the law. But there is plenty of barely disguised lawfare too. Given our own scholarly mission and our belief, mocked by some, that the search for objective legal evaluation is a worthy, if at times Sisyphean, endeavour, we have often ‘balanced’ things out by encouraging debate and reaction pieces. This predates my tenure as Editor-in-Chief. Those with a long memory will recall the exchange between Francis Boyle and James Crawford on the 1988 Palestinian Declaration of Independence in one of our earliest issues.

One is typically blind to one’s own shortcomings. Personally I take some measure of comfort from the fact that my occasional legal writings on the conflict are regularly criticized, always with passion, by partisans on one or the other sides of the conflict, most recently in our own EJIL: Talk! in response to comments I made on the Levy Report.

Be that as it may, when the firing and killing ceases and judicial inquiry takes over it is in the interest of justice and the credibility of the bodies who administer it to adopt those other idioms of the law – dispassionate, ‘blind’, fair – and to heed the wisdom of justice needing not only to be done but to be seen to be done. Read the rest of this entry…

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