Among the continuing horrors reported from Syria, it is the use of certain weapons that time and again makes the headlines. While the use of chemical weapons led to an important response from the international community, in recent months attacks with so called ‘barrel bombs’ triggered an international echo. In its latest resolution on Syria the UN Security Council demanded all parties to cease ‘the indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs’. UN Secretary General Ban called these weapons ‘horrendous’, France found that these weapons ‘sought to indiscriminately kill people’, and for the UK the use of these weapons against civilian areas constitutes ‘yet another war crime’ by the Assad regime. Different human rights groups, such as Human Rights Watch or the Syrian Network for Human Rights, report that the use of barrel bombs has caused high numbers of dead, the vast majority of which are civilians. There is no question that war crimes are committed in Syria, especially by the Assad regime. It is, however, less clear to what extent international law prohibits the use of barrel bombs in non-international armed conflicts, and whether their use constitutes a war crime.
In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.
The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.
Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.
Two main themes emerge from the report. The first is that the legal framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.
The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Read the rest of this entry…
The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicant’s son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicant’s son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified.
To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicant’s son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed.
In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State ‘exercises all or some of the public powers normally to be exercised [by the government of the State]’, (Al-Skeini at ) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State:
the United Kingdom […] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government […] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom’ – (Al-Skeini at )
The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as ‘authority and control’ over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors).
Common Article 3 of the 1949 Geneva Conventions binds the parties to non-international armed conflicts (NIACs) without making any distinction between the obligations of States and those of armed opposition groups (AOGs). Additionally, it encourages the parties to expand their obligations by concluding special agreements in order to bring other provisions of the GCs into force. These agreements’ importance has been recognized here by the ICRC, when identifying them as valuable methods to improve respect of IHL. In a recent post in Opinio Juris, Rogier Bartels has mentioned some contemporary peace agreements which could potentially also be framed within that category. However, CA3 doesn’t really determine their legal nature. Are they regulated by international or domestic law? What kind of obligations do they create?
Unraveling these questions isn’t merely an intellectual exercise. Special agreements serve to strengthen public confidence in IHL as a useful, practical and relevant body of law. Indeed, they help achieve willingness and material conditions to augment AOGs’ compliance. Whatever approach one selects, it will inevitably have consequences on the way we think about IHL’s effectiveness at large.
This post will analyse three alternatives regarding the legal nature of special agreements: i) special agreements under domestic law; ii) special agreements under a sui generis regime; iii) special agreements under international law. We will argue that this last perspective provides a more accurate description of the current dynamics of international law and is more useful to engage with AOGs on IHL compliance issues.
Hassan v. United Kingdom, IHL and IHRL, and Other News in (Extra-)Territoriality and Shared Responsibility
Last week the Grand Chamber of the European Court of Human Rights held an oral hearing in what is bound to be a very important case, Hassan v. UK. The case deals with the detention of an Iraqi by British forces in southern Iraq and his subsequent release and death under unclear circumstances. As such it raises both threshold questions on extraterritorial applicability/Article 1 jurisdiction and substantive issues on the relationship between human rights and international humanitarian law. Here is the Court’s press release on the hearings, and here’s the actual webcast of the hearings. Shaheed Fatima also has a good preview of the case over at Just Security.
The jurisdiction issue is made more complicated by uncertainties left after Al-Skeini as to whether and when exactly the UK had effective overall control over southern Iraq for the purpose of spatial model of Article 1 jurisdiction, as well as by the fact that the camp to which Hassan was taken upon arrest was run by the US. The multiplicity of actors can thus render both the jurisdiction and the attribution questions more difficult. But I will not deal with them here. Rather, I want to focus on the interaction between the ECHR and IHL.
In that regard, together with the pending Georgia v. Russia interstate case, Hassan presents an excellent opportunity for the Court to articulate a clear and systematic approach on IHL. Hopefully this is an opportunity that the Court will take up, and the questions posed by the various judges during the oral hearing are an indication that they will do so.
Why is Hassan such a good case? Because at least in part it poses the hard question of potentially unavoidable norm conflict (a topic which I have dealt with extensively here, as well as specifically in the context of IHL and IHRL here). On the one hand, the UK is arguing that Hassan’s arrest and preventive security detention were authorized by IHL in an international armed conflict (the exact theory is for the time being beside the point). On the other hand, Article 5 ECHR categorically prohibits preventive security detention; unlike Article 9 ICCPR, which prohibits arbitrary deprivations of liberty, Article 5 ECHR contains an exhaustive list of permitted grounds for detention, and preventive security detention is not one of them. Hence, when states wanted to use internment in the context of internal disturbances or emergencies which may even have reached the level of non-international armed conflict, they had to derogate from Article 5 pursuant to Article 15 ECHR, as the UK did for Northern Ireland.
In the context of Hassan this raises the preliminary question of whether the UK could have derogated with respect to the situation in Iraq (which in any event it did not do), i.e. whether Article 15 ECHR allows for extraterritorial derogations. Article 15 limits derogations to times of ‘war or other public emergency threating the life of the nation.’ In Al-Jedda Lord Bingham expressed doubts that this formulation could extend to situations outside the derogating state, especially those which it had put itself in willingly, a sentiment later echoed by the UK Supreme Court in Smith. In other words, the UK chose to invade Iraq, and however bad the situation was for Iraqis in Iraq it in no meaningful way threatened the life of the UK. Further support for this position would be found in the fact that no state has ever derogated for an extraterritorial situation.
On 25 October 2013, in its judgment in the R v Mohammed Gul case, the Supreme Court of the United Kingdom tackled two important issues: the definition of terrorism in times of armed conflict and the relationship between domestic legislation and international rules criminalizing certain behaviours. On both issues, the judgment is rather unsatisfying and may be considered a step back from the stand previously taken by the Court of Appeal in the same case (upon which I commented in the Journal of International Criminal Justice, vol. 11(2), 2013, pp. 425-440, some time ago; see also the excellent post by Kimberley Trapp here on EJIL:Talk!). In particular, the Supreme Court found the terrorism definition in UK law to be both unwise and undesirable but then relied on it to confirm the defendant’s conviction.
The defendant, a law student of British nationality, was accused of having disseminated terrorist publications, an offence under Section 2(3) of the UK Terrorism Act 2006. Actually, his conduct consisted in uploading onto the Internet, and particularly on Youtube, videos of attacks against military targets in Chechnya, Iran and Afghanistan. The videos were accompanied by prayers and praises for the attackers. One legal element of the offence is that the publication – in this case the videos – concerns actual terrorist attacks. The bone of contention here, then, is whether attacks against military targets in the context of non-international armed conflicts (NIACs) can be labelled as terrorist attacks.
The definition of terrorism in UK legislation is contained in Section 1 of the Terrorism Act 2000. It basically foresees three requirements: (1) an act or threat which involves serious violence or danger to the life of persons, serious damage to property, or serious interference with or disruption of electronic systems; (2) the “purpose of advancing a political, religious, racial or ideological cause”; and (3) the fact that the act or threat is “designed to influence the government or an international governmental organization, or to intimidate the public or a section of the public”. The act or threat need not to be designed to influence a government or an international organization or to intimidate the public when it involves the use of firearms or explosives. This means that any threat or use of firearms or explosives motivated by a political or ideological cause is an act of terrorism, as long as it involves serious danger to persons or serious damage to property and regardless of its purpose.
The definition is practically very broad (as recently noted by K.J. Heller). It seems to label as terrorist most acts of warfare in a NIAC, regardless of whether they are lawful or unlawful under International Humanitarian Law (IHL) and whether they are carried out by the armed forces of a State or by a non-State armed group. Indeed, most hostile acts in an armed conflict are likely to cause serious violence to persons or serious damage to property, and all of them are motivated by a political or ideological cause. Arguably, any hostile act in an armed conflict is designed to influence a government or involves the use of firearms or explosives. According to this definition, every person embracing weapons in a NIAC is considered a terrorist. The Prosecution in the Gul case argued that such a wide definition is counterbalanced by the requirement that prosecutions for terrorism are authorized by the Director of Public Prosecution if the activity occurred in the UK, or by the Attorney General if it occurred abroad, thus ensuring that criminal charges are formulated only in the appropriate cases (§ 30). This contention, far from solving the problem, seems to raise even more concerns, as I shall explain below. Read the rest of this entry…
It’s that time of the year again…
The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.
In this second of two posts I intend to continue the analysis of the extraterritorial seizure of individuals under international law, with a particular focus upon the recent arrest, detention and now trial of the al-Qaida leader al-Liby by the United States, who was wanted in connection with the bombings of the US embassies in Kenya and Tanzania in 1998. In the previous post I addressed the prescriptive jurisdiction of the US over these offences and, noting that its enforcement was territorially limited, looked at two possibilities as to how enforcement may occur; the consent of the Libyan authorities and in self-defence. While the existence of the former would have justified the entering of Libyan territory, question marks still existed in connection with al-Liby’s human rights in such operations. This issue will be addressed in this post. By contrast, while it is at least possible that extraterritorial seizures could be justified as self-defence, the US has thus far failed to demonstrate that the Libyan authorities were unable or unwilling to apprehend and hand-over al-Liby to the US, instead basing the operation broadly upon the ‘laws of war’. As such, whether this branch of the law permits such operations will be addressed first.
Arrest and detention as part of an armed conflict
Assuming here for the sake of argument that the US is in a state of war/armed conflict with al-Qaida, and similarly assuming for the sake of argument that given the absence of two state parties this is a non-international armed conflict per the ambiguous Hamdan judgment, the law of armed conflict says very little about powers of detention in such conflicts, as opposed to the rather extensive provision it makes for the issue (particularly in GCIII) in armed conflicts of an international nature.
It could be argued that there is a power of extrajudicial detention in non-international armed conflicts under customary international law. Indeed, this appears to be the view of the US and certain other states. Yet, the rules that do exist in the law of non-international armed conflicts governing detention are concerned with the general treatment and trial of individuals after they have been detained, as opposed to providing prior grounds for detention and thus ensuring that any deprivation of liberty is not of an arbitrary nature. Instead, such issues are left to the domestic law of the state where the non-international armed conflict is taking place and/or international human rights law. In this respect, regardless of whether the claim of the US in regards to its armed conflict with al-Qaida is well-founded or not, given the extraterritorial nature of the arrest and detention of al-Liby questions are raised as to whether, and if so how, international human rights law provides a form of regulation to the actions of the US. Read the rest of this entry…
On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.
Unsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).
Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…
Last Friday, the Policy Exchange, a British think tank dedicated to the development and promotion of new policy ideas, published a Report entitled ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’. The Report makes fascinating reading and deserves serious attention. Written by Thomas Tugendhat and Laura Croft, its aim is to explain how the cumulative effect of legal developments taking place over the past decade has undermined the ability of Britain’s armed forces to operate effectively on the battlefield. The Report questions the desirability of what it calls ‘legal mission creep’ and offers seven policy recommendations designed to reverse it or at least arrest its future development.
Undermining the warfighting ethos
Flexibility, initiative and the acceptance of risk and responsibility are central to British military doctrine. As the British Defence Doctrine puts it, one of the key components of the ‘British way of war’ is ‘a style of command that promotes decentralised command, freedom and speed of action and initiative’. ‘The Fog of Law’ brings together a considerable body of examples to suggests that the growing legal regulation and civilian oversight of the armed forces—in particular the spread of inquiries, the extension of civilian duty of care standards and the constant threat of litigation—have begun to undermine the warfighting ethos of the military and restrict commanders’ freedom to act. A series of legal developments have contributed to this change. However, Tugendhat and Croft direct their fiercest criticism against the European Convention on Human Rights, which they describe as the ‘main weapon used in the legal challenge against the [UK Ministry of Defence]’ (p. 17). In their view, the extension of ‘a civilian understanding of duty of care and rights guaranteed by the ECHR’ to combat operations represents a ‘legal intrusion into decisions made in a time of war’ (p. 28).
It is important to stress that ‘The Fog of Law’ does not advocate the complete exemption of the armed forces from the rule of law. The Report makes abundantly clear Tugendhat and Croft’s view that the problem is not the imposition of legal constraints on the armed forces as such, but the extension of civilian law to the military. Indeed, their entire discussion seems to be predicated on an underlying assumption that civilian law and military law are distinct normative regimes and that their respective spheres of application can, and should, be neatly separated from one another. Civilian law and oversight are thus depicted as alien forces which ‘intrude’, ‘assault’ and ‘intervene’ into the military sphere, ‘encircling’ it and ‘encroaching’ upon its autonomy. This is the stuff of high drama, but the accuracy of the picture painted is open to question. The assumption that there is law for civilians and law for the military seems to mistake both the nature of the problem and its solution. Read the rest of this entry…