magnify
Home Archive for category "International Humanitarian Law"

Geoff Corn and Guglielmo Verdirame take part in Transatlantic Dialogue on International Law and Armed Conflict

Published on September 19, 2014        Author: 

This week guglielmo-verdirame_0 Professors Geoff Corn (left, South Texas College of Law)j-corn and Guglielmo Verdirame (right, Kings College London & barrister at 20 Essex Street) contributed pieces in the joint blog series arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this past July.

Geoff Corn’s piece, “Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility”, was posted at Lawfare at the start of this week. In this thoughtful pose, Geoff says:

“I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting.”

He raises a number of important issues relating to the feasibility of international criminal prosecutions to produce credible accountability decisions in relation to battlefield decision-making. One question he addresses, which is particularly novel but really important is this:

“[A] complicated aspect of criminal prosecution based on alleged unlawful targeting decisions is the relationship between LOAC/IHL presumptions and criminal burdens of proof. The presumption of innocence an axiomatic component of any fundamentally fair trial, and imposes on the prosecution the burden of production and the burden of persuasion. However, several LOAC/IHL targeting rules are based on presumptions which, when applied in the criminal context, arguably shift the burden of production to the defense.”

At the the end of the week, Guglielmo’s piece, “Taming War through Law – A Philosophical & Legal Perspective” , was posted on InterCross (the blog of the ICRC. Guglielmo begins his post in this way:

“The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.

The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?”

His post then examines the work of Kant, Grotius and Hobbes, together with decisions of the European Court of Human Rights and the UK courts, in his survey of the question whether human rights law should apply to armed conflicts.

 

Print Friendly
 

The Grand Chamber Judgment in Hassan v UK

Published on September 16, 2014        Author: 

The eagerly-awaited Grand Chamber judgment in the case of Hassan v UK has now been released, and its importance for anyone interested in extraterritoriality, detention and the relationship between international humanitarian law (IHL) and international human rights law (IHRL) cannot be overstated. For the first time in its history, the Court has explicitly offered its view on the interaction between IHL and IHRL and the operation of the Convention, particularly the right to liberty, in the context of an international armed conflict.

A good overview of the facts of the case and the Court’s judgment can be found here, and they will not be repeated in this post. Instead, I want to offer some initial thoughts on the Court’s reasoning with regard to Article 5 ECHR and, more specifically, its approach to treaty interpretation.

The question before the Grand Chamber was whether the internment of the applicant’s brother, which appeared to conform with the Third and Fourth Geneva Conventions, could be considered consistent with Article 5 ECHR, notwithstanding the absence of any derogation by the UK. At a very general level, the Court effectively had two options here. On the one hand, it could have followed the path it appeared to be laying in its previous case-law, particularly in Al-Skeini and Al-Jedda, and hold that, where jurisdiction exists and where no lawful derogation has been made, the State remains bound to honour its obligations under the ECHR as ordinarily interpreted. Had the Court taken this approach, the Contracting States may eventually have conceded defeat and begun derogating in extra-territorial contexts. (Incidentally, the Court continued to avoid explicitly engaging with the permissibility of extra-territorial derogations.) Instead, the Court adopted the alternative approach, interpreting the ECHR so as to leave room for the broader powers that States have under IHL. Thus, it effectively read into Article 5(1) ECHR an extra permissible ground for detention where consistent with the Third and Fourth Geneva Conventions, and it read down the requirement of habeas corpus in Article 5(4) to allow for the administrative forms of review under the Fourth Geneva Convention.

Let’s begin with a few, in my view, positive points about the Court’s approach here. First, and perhaps most importantly, the Court rejected the UK’s principal argument that IHL as the lex specialis precluded jurisdiction arising under Article 1 ECHR (para 77). To have followed this would effectively have been to displace the entire Convention where IHL applies. Instead, the Court adopted a more nuanced, case-by-case approach which looks at the specific right at issue. This enables the Court to retain its oversight function by assessing the legality of the actions of Contracting Parties through the prism of IHL.

Read the rest of this entry…

Print Friendly
 

Developing the Law of Non-International Armed Conflict: A View of the Harmonization Project

Published on September 12, 2014        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

This post is a response to Professor Sarah Cleveland’s post on the Columbia-based Harmonization Project that Professor Cleveland and Sir Daniel Bethlehem are leading. That project explores the potential for applying the law of international armed conflict (IAC) in non-international armed conflicts (NIACs), as a means of developing the law applicable in the latter. The conclusion of the project is that the large majority of the rules applicable in IACs can be transplanted into NIACs without amendment and that this should be done by States either multilaterally or via unilateral declarations.

A detailed, rule-by-rule consideration of the degree to which parity between the law of IAC and NIAC is practicable is a very useful endeavour. Indeed, historically this has been the method by which the law of NIAC has developed. It is clear why this should have been the case. When the first international humanitarian law (IHL) treaties were adopted in the mid-nineteenth century, international law was still, by and large, a law governing inter-State relations. Matters that did not directly engage such relations, including NIACs, were thus generally excluded. Customary rules did of course develop to govern certain NIACs, such as the doctrine of belligerency, but these often applied only where another, non-party State was affected by the conflict.

As international law expanded to include the regulation of purely intra-State matters (reflected in human rights instruments, as well as the Genocide Convention, adopted in the aftermath of the Second World War), this basis for marginalising NIACs began to fall away. Rules traditionally applicable only in IACs could now move over into NIACs. And indeed this is what has happened: common Article 3 to the 1949 Geneva Conventions and Additional Protocol II were based on the law of IAC. This is also true of the customary rules recognised by the ICTY and ICRC.

It is therefore only natural that we should look to the law of IAC in developing the law of NIAC. This post, however, will offer some words of caution in adopting this method of humanising NIACs. In particular, it will be argued that both general and specific arguments militate against this supposedly self-evident means by which to develop the law of NIAC.

General Concerns

The Harmonization Project declares its goal as being to build upon current obligations in NIACs—it is limited to IHL and does not seek to make a claim regarding the relationship between IHL and human rights law. However, it seems to me that one cannot avoid such questions when considering proposals for developing the law of NIAC. Indeed, if one’s goal is further to humanise NIACs (as the Harmonization Project’s seems to be) then one must tread carefully in proposing the extension of IHL in toto to NIACs. As David Kretzmer has shown, far from increasing protections, this method could in fact undermine existing protections. Read the rest of this entry…

Print Friendly
 

Joint Blog Series on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHLR: Part II

Published on September 11, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series we are hosting with Lawfare and Intercross is Part II of Brigadier General (Rtd) Ken Watkin QC’s piece on “The Overlap between IHL and IHRL”. The piece  is posted on Intercross, where you can also find Part I. Ken Watkin was the senior legal adviser in the Canadian Armed Forces and, also  a former Stockton Professor of International Law at the US Naval War College. The joint series arises out of the 2nd annual Transatlantic Workshop on International Law and Armed Conflict, which took place in Oxford in July.

Ken begins his latest post in this way:

Last week, I described  the “exclusionary” approaches to the application of international humanitarian law (IHL) and international law human rights law (IHRL), which assume that one body of law will apply to the exclusion of the other. I also described how the approaches taken by the United States and Canada differ from those taken by European nations, the latter approach being influenced, in large part, by decisions of the European Court of Human Rights. However, the widely and often loudly debated exclusionary approaches do not actually represent how the law is being applied, particularly in a North American context. The reality of contemporary conflict is that both normative frameworks often need to be relied on concurrently. The application of human rights based norms occurs less through consideration of IHRL treaty law obligations than by operation of customary law obligations (both IHRL and IHL), the application of domestic law, or as a matter of policy. There is increasing recognition that Common Article 3 and Article 75 of Additional Protocol I apply as a matter of customary international law to international operations. Article 75 was clearly influenced by the 1948 Universal Declaration on Human Rights and the 1966 International Covenant on Civil and Political Rights. As then Professor Christopher Greenwood noted, the relationship between IHL and human rights law “is expressed in the adoption of major human rights principles in Article 75 AP I” [Christopher Greenwood, “Scope of Application of Humanitarian Law”, in Dieter Fleck, ed., The Handbook of International Humanitarian Law (2nd ed., 2008), 74, Rule 254.] Significantly, these human rights norms must be applied regardless of the geographic location of the armed conflict, thereby avoiding the intractable debate regarding the extra-territorial application of IHRL treaty law.

Read the rest on Intercross!

Print Friendly
 

Harmonizing Standards in Armed Conflict

Published on September 8, 2014        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs.  The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions).  The resulting regime would be legally binding on that state as a matter of international law.

One consequence of the approach would be to substantially reduce the significance of characterizing a conflict as either an IAC or NIAC.  If successful, the project could help significantly raise the level of protection for individuals in non-international armed conflicts while clarifying a participating state’s IHL obligations.  More broadly, it could complement longer-term law reform efforts by demonstrating the feasibility of holding states to the higher standards of protection from IAC, and ultimately catalyse the development of a more harmonized regime of IHL legal standards. Read the rest of this entry…

Print Friendly
 

Transnational Dialogue on International Law and Armed Conflict: Ken Watkin on the Overlap between IHL and IHRL

Published on September 6, 2014        Author: 

BOG_Ken WatkinThe latest post in the joint blog series on International Law and Armed Conflict was posted yesterday on Intercross (the blog of the ICRC). The post is by Brigadier Gen (Rtd) Ken Watkin QC, former Judge Advocate General (i.e the head legal adviser) in the Canadian Armed Forces and former Stockton Professor of International Law at the United States Naval War College. Ken’s post is on the overlap between international humanitarian law and international human rights law. He starts by saying that:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

The requirement to consider human rights during contemporary military operations arises in a number of ways. Often it occurs in the context of the use of force, particularly when military forces interface with civilians who are not direct participants in hostilities. Operations can involve the detention of insurgents, terrorists, and persons providing indirect support to organized armed groups; the quelling of civil disorder and unrest; and the arrest of members of criminal organizations taking advantage of the general disorder often associated with armed conflict. These situations can arise during inter-State conflict (i.e. occupation), as well as comprise a significant component of counterinsurgency and counterterrorism operations. 

The full post is available on Intercross here

Print Friendly
 

Joint Blog Series on International Law and Armed Conflict: Bobby Chesney on “When Does LOAC Cease to Apply”

Published on September 5, 2014        Author: 

As indicated earlier this week, EJIL:Talk! is partnering with Lawfare and Intercross (blog of the International Committee of the Red Cross) to publish a series of posts arising out of the 2nd Transatlantic Dialogue on International Law and Armed Conflict (which took place in Oxford in July of this year). On Wednesday Bobby Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, and one of my co-convenors of the transatlantic workshop, kicked off the series with a post exploring the interesting question: “When does LOAC cease to apply?”

Bobby, introduced his post by saying:

“People sometimes speak of peacetime and wartime as sharply demarcated, their factual foundations and legal consequences being clearly distinct from one another. Everyone here will appreciate that it is not always or even often so simple, as Mary Dudziak has documented so richly in her recent book WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. Circumstances of violence can occur across a broad spectrum of intensity, with the nature and intensity of events rising or falling in unexpected ways (and places) over time. Even the parties themselves can undergo sweeping changes. Small wonder, then, that we lawyers spend so much time wrestling with the details of IHL’s field of application.”

He then explained that:

Usually we approach the field-of-application question from the front-end, which is to say we talk about whether a given situation of violence has crossed over into the realm of armed conflict, bringing IHL to bear (and thus also complicating the question of IHRL’s role). It is a particularly vexing issue in the context of potential NIACs”

However, less attention has been paid to the back-end of the armed conflicts, particularly to the question of when a NIAC is to be regarded as having ended. This is the focus of Bobby’s post. He considers various options for assessing when IHL should cease to apply, examining the approach set out in the ICTY Appeals Chamber’s famous Tadic case (that IHL applies until a “peaceful settlement is achievement”), as well as whether the test for determining whether a NIAC exists at the front end of the conflict should be applied for determining whether it has terminated.

You can read Bobby’s post in full over on Lawfare.

For a list of other scheduled posts in this series, see here

Print Friendly
 

Transatlantic Dialogue on International Law and Armed Conflict : A Blog Series

Published on September 1, 2014        Author: 

In the middle of July, a group of academics and government lawyers gathered for two days at Oxford University to discuss issues related to current challenges pertaining to armed conflict and the applicable law. Participants came from both sides of the north Atlantic (the United States, Canada, the United Kingdom, and continental Europe), and from Israel, to share views on a variety of topics.

The interplay between international humanitarian law (IHL) and international human rights law (IHRL) was an issue that permeated the two day workshop, with an emphasis on the implications of recent court decisions. That discussion flowed into a conversation about accountability for violations of IHL, including an exploration of what the obligations are and how they are implemented. Given that many States are scaling down direct foreign military operations, the first day finished with a discussion on what partnered operations and security cooperation looks like, and how different bodies of law apply to these operations.

Issues relating to non-international armed conflicts, and again the overlapping areas of IHL and IHRL, were addressed on the second day, including whether and how rules applicable in international armed conflicts (IACs) could apply to non-international armed conflicts (NIACs), and a determination of when a NIAC ends and when IHL stops applying.

Some of those who attended the workshop are now participating in a series of blog posts focussing on specific topics that were addressed during the workshop. Three blogs, Intercross, EJIL:Talk!, and Lawfare, are coordinating the series, and will host the posts, outlined below. Each blog post supports the author’s perspective, and not necessarily that of anyone else at the workshop, or any of the institutions represented.

Schedule of blog posts:

  • Bobby Chesney, IHL and the End of Conflict, September 3rd on Lawfare
  • Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part I, September 5th on Intercross
  • Sarah Cleveland, Harmonizing Standards in Armed Conflict, September 8th on EJIL:Talk!
  • Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part II, September 10th on Intercross
  • Lawrence Hill-Cawthorne, Developing the Law of Non-International Armed Conflict: A view on the Harmonization Project, September 12th on EJIL:Talk!
  • Geoff Corn, Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility, September 15th on Lawfare
  • Guglielmo Verdirame, September 17th on Intercross

The event was organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations, the International Committee of the Red Cross Delegations for the United States and Canada and for the United Kingdom and Ireland, the South Texas College of Law, and the Robert S. Strauss Center for International Security and Law at the University of Texas.

Print Friendly
 

Collective Punishment Receives a Judicial Imprimatur

Published on August 21, 2014        Author: 

In her recent book on the application of international humanitarian law by national courts, Sharon Weill describes the “apologist role” that is sometimes played by domestic judicial bodies, whereby decisions of courts serve to legitimise unlawful state policies. Last week’s judgment by the Israeli Supreme Court (sitting as the High Court of Justice) upholding the orders of a military commander to destroy and seal a number of Palestinian houses in the West Bank is an exemplary case in point.

The judgment in Qawasmeh et. al.is significant for it provides judicial approval for the recent reinstatement of Israel’s punitive house demolition policy after a “decade-long hiatus”. The judges condone practices of collective punishment, despite the existence of a clear prohibition of such practices under international humanitarian law. The approval is not inadvertent, for the judgment shows that the Court is fully aware of the harm caused to persons other than the perpetrator by the practice of demolishing or sealing the houses of those responsible for criminal or hostile acts.

The background facts of the case are well-known, given that the kidnapping and murder of three Israeli teenagers in the West Bank in June 2014 served as the trigger for a violent escalation leading to ‘Operation Protective Edge’ in Gaza. The Israeli authorities identified the alleged perpetrators of this crime and ordered the demolition or sealing of their homes “in view of the need to deter others from the recurrence of similar actions” (although one residence was already destroyed once the individual was identified). At the time of the judgment, two of the suspects had not been arrested and the third had not yet been tried. Since then, the demolition and sealing orders have been carried out, with a statement by the Israeli military expressly referring to the Supreme Court’s affirmation of the orders and its rejection of the petitioners’ appeals.

Read the rest of this entry…

Print Friendly
 

The Security Council and Humanitarian Relief in Opposition-Held Territories

Published on August 12, 2014        Author: 

TilmanTilman Rodenhäuser (pictured left) is a researcher at the Geneva Center for the Democratic Control of Armed Forces, and a PhD candidate at the Graduate Institute in Geneva. Jonathan Somer (pictured right) is the founderJonathan Somer of Persona Grata Consulting, advising on international law and policy in fragile states. Until recently he was Legal Adviser for Geneva Call and has previously worked with the Organisation for Security and Cooperation in Europe.

Over the past year, the Security Council has repeatedly demanded all parties to the armed conflict in Syria, particularly the Syrian authorities, to allow and facilitate humanitarian relief operations across conflict lines and across borders (see resolution 2139 and a presidential statement) – but with little success. In its latest resolution the UN Security Council decided – for a period of 180 days – “that the United Nations humanitarian agencies and their implementing partners are authorized to use routes across conflict lines and [specific] border crossings … in order to ensure that humanitarian assistance” reaches people in need in Syria. The Security Council also decided to establish a monitoring mechanism in neighbouring countries in order to confirm the humanitarian nature of the relief consignments.

Resolution 2165 was adopted as international humanitarian law experts continue to debate whether aid may be lawfully delivered cross-border to opposition-held territories without the consent of the host state. While some (here and here) contend that the issue is clear-cut – with consent being required – the only thing that does seem clear-cut is the lack of consensus. Others, including one of the present authors, argue a case exists for cross-border assistance without consent under certain conditions. This latter view has been supported by the former President of the International Humanitarian Fact Finding Commission and co-author of an authoritative commentary on the Additional Protocols to the Geneva Conventions, Professor Bothe, in an unpublished study provided to the UN. A group of prominent legal experts have made even bolder claims in a recently published open letter. So while international lawyers continue to sharpen their pencils, resolution 2165 supplements IHL by invoking the authority of the Security Council to fill in the gaps left by IHL’s uncertainties on cross-border aid in non-international armed conflict.
Read the rest of this entry…

Print Friendly