magnify
Home Archive for category "International Humanitarian Law"

The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

Published on December 5, 2016        Author: 

On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).

A Legal Bombshell

The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).

Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…

Print Friendly
 

The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 

Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

Print Friendly
 

Author’s Response: Human Rights Obligations of Non-State Armed Groups

Published on November 7, 2016        Author: 

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration. Read the rest of this entry…

Print Friendly
 

Two Fascinating Questions: Are all subjects of a legal order bound by the same customary law and can armed groups exist in the absence of armed conflict? Book Discussion

Published on November 4, 2016        Author: 

Armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist. That such groups are bound by international humanitarian law (IHL) of non-international armed conflicts is clearly prescribed by Article 3 common to the Geneva Conventions, but this remains difficult for States to digest. Having obligations under the IHL of NIACs does not solve all the problems associated with such groups, because its rules are rudimentary, do not deal with how a territory must be administered and do not even apply to those acts of administration (e.g. in the areas of justice or detention) lacking any nexus to the armed conflict. It is therefore the great merit of Daragh Murray that his book forcefully argues – following in the footsteps of others such as Andrew Clapham, while providing greater detail and some new ideas – that armed groups have human rights obligations and explores what this can mean in practice.

I agree with the aim of the book and with most of the arguments employed. Some will, even in good faith, object to its aim, others will qualify Murray’s arguments as very forceful de lege ferenda, but argue that they go beyond a possible interpretation of lex lata. I find the very varied, often alternative, arguments presented for why armed groups can be subject to international law very nuanced, complete and convincing (with one exception discussed hereafter). The proposed gradated – or sliding scale – approach to the application of Human Rights to armed groups (pp. 172-199), based inter alia upon the classical distinction between obligations to respect, fulfil and protect is equally convincing and Murray’s application of this approach to three selected human rights is both innovative and realistic.

However, the argument provided for why armed groups are bound by existing human rights treaties (although they never accepted them formally) is in my view comparatively short, very absolute and less well-reasoned (pp. 164-169). Read the rest of this entry…

Print Friendly
 

Human Rights Obligations of Non-State Armed Groups: Realistic or Overly Ambitious? Book Discussion

Published on November 3, 2016        Author: 

Dr Murray’s book, Human Rights Obligations on Non-State Armed Groups talks about non-state armed groups as a reality that needs to be addressed: they exist, they exercise control, and therefore we must talk about their responsibilities. While this might seem self-evident, his sober analysis is particular commendable in the context of the current counter-terrorism atmosphere and discourse. It is a very well-researched, thorough and thoughtful book. It is particularly impressive in its wide research about the practice of many different groups.

The book raises many interesting questions on legal theory, but also on mechanisms to engage in dialogue with non-state armed groups. I would like to focus on two aspects: the legal “de facto control” argument and the dilemma which, to my mind, human rights obligations of non-state armed groups raise.

After having established that non-state armed groups have legal personality, the book argues that the “prescriptive jurisdiction theory” allows states – which are normatively higher positioned than their subjects, including non-state armed groups – to impose binding obligations on non-state armed groups as a matter of international law.

This is indeed what states have done in Common Article 3 to the four Geneva Conventions by imposing IHL obligations on each party to non-international armed conflicts, meaning also non-state armed groups. Through practice and opinio juris they have also, by now, by and large accepted that non-state armed groups have IHL obligations under customary international humanitarian law.

Unlike Common Article 3 and Additional Protocol II, however, human rights treaties are not generally worded in a manner that would suggest that they are binding on non-state armed groups. Other traditional sources of international law to create international rights and obligations would be customary law or general principles. However, the book discards both – customary law for lack of evidence; and general principles for being too general and vague. While this is correct, in my opinion, the analysis could have benefitted from looking a bit more closely at state practice and positions. Read the rest of this entry…

Print Friendly
 

Challenging the Traditional View that International Law Does not Extend to Non-State Armed Groups. Book Discussion

Published on November 3, 2016        Author: 

While international human rights law (IHRL) and its numerous enforcement mechanisms have proliferated over the years, millions of people remain beyond its reach. Frequently this is because they live in areas controlled by non-state armed groups, often under difficult and oppressive conditions.  Dr. Daragh Murray’s new book “Human Rights Obligations of Non-State Armed Groups” (Hart, 2016) addresses this issue by providing a serious and thought-provoking account of why IHRL binds non-state armed groups, both inside and outside situations of armed conflict.

In times of armed conflict, international humanitarian law (IHL) places important restrictions on organized non-state armed groups to address this problem, but its rules are sparse. Moreover, IHL lacks a strong, universal, and functional international monitoring system. There are also plenty of situations outside of armed conflict, where IHL doesn’t apply, and yet armed groups maintain decisive influence over the lives of people.

Murray’s book, which looks to IHRL for answers, refreshingly challenges the traditional view that IHRL doesn’t bind non-state actors.  Far from being an activist’s manifesto or merely providing a wish-list of what law should do to regulate non-state armed groups, Murray goes to great pains to interrogate what more international law, and IHRL in particular, is capable of doing. He does this in a comprehensive manner—drawing on a variety of fields of public international law and capitalizing on the relatively few instances where international law binds non-state actors—to develop a legal theory that he then applies to civil and political rights as well as economic, social, and cultural rights. Murray provides us with a detailed diagram of how IHRL binds non-state armed groups and gives thorough explanations to support what he describes.  Read the rest of this entry…

Print Friendly
 

Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

First of all I would like to extend a huge thank you to EJIL:Talk! for hosting this book discussion and to the three discussants for taking the time to read the book and to provide their comments. It is a privilege, and I look forward to the debate.

Human Rights Obligations of Non-State Armed Groups’ looks at the legal and practical mechanics of how international human rights law can be applied to armed groups. I focus on two key issues: (1) what is the legal basis for the application of international human rights law obligations to armed groups, and under what circumstances will the law apply, and (2) how will the application of human rights law to armed groups work in practice, noting that armed groups are definitely not States – and so cannot reasonably be subject to the same obligations – and also that significant variation exists amongst armed groups and so obligations may need to be applied to different armed groups in a different manner.

In this introductory post I would like to briefly set out why armed groups should be subject to human rights obligations, and to present an overview of my approach in relation to the two issues identified above.

Today, non-State armed groups exert significant influence over the lives of millions of people around the world. Indeed, at its height the Islamic State was reported as exercising governmental authority over up to 10 million people in Iraq and Syria, while the impact of other groups such as the CPN-M in Nepal, the LTTE in Sri Lanka, the FARC in Colombia, the Naxalites in India, or the BRN-C in Southern Thailand is well documented. The activity of these groups is demonstrably of international concern. Yet their activities are not subject to effective regulation. Read the rest of this entry…

Print Friendly
 

Book Discussion: Introducing Daragh Murray’s Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

book-dmThe blog is happy to announce that this week we will be hosting a discussion on Daragh Murray’s new book with Hart, Human Rights Obligations of Non-State Armed Groups. Daragh is a lecturer at the University of Essex School of Law and Director of the Human Rights Centre Clinic. He will start the discussion tomorrow morning by outlining the main arguments of his book. Comments by Jonathan Horowitz, Cordula Droege, and Marco Sassoli will follow over the course of the week, while Daragh will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.

Print Friendly
 

Launch of Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict

Published on October 31, 2016        Author: 

In many, if not most, armed conflicts, far more deaths occur as a result of the humanitarian crisis created by the conflict rather than from hostilities or the use of force (see this useful study, at p. 842). In addition to those who die as a result of a lack of food, water, access to medical care or adequate sanitation, untold suffering is caused in conflicts across the globe to millions of other civilians. However, in many recent conflicts humanitarian actors have faced serious challenges in delivering much-needed relief supplies and services to civilians in need. The United Nations Secretary-General, in his recent reports to the Security Council on the Protection of Civilians, has identified improving access for humanitarian operation as one of the five “core challenges” to enhancing the protection of civilians in armed conflict (see eg S/2012/376 (paras. 57-63); S/2015/453 (para. 7). In a November 2013 report to the Security Council [S/2013/689, para. 80], the Secretary General called for further analysis of the issue of arbitrary withholding of consent to humanitarian operations and the consequences thereof. He instructed the UN Office for the Coordination of Humanitarian Affairs (OCHA) to engage with a range of actors to examine the relevant rules and options for guidance in this area. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations (both of which I co-direct) to carry out this exercise. We engaged in a series of expert consultations which took place in Oxford, in addition to informal discussions in Geneva and New York with officials from a number of international agencies and NGOs, with the aim of providing a restatement of the international law rules.

This process has resulted in the production of the Oxford Guidance on the Law Relating to Humanitarian Relief Operation in Situations of Armed Conflict (which is available here). It was a pleasure to launch the Oxford Guidance at UN Headquarters in New York last week, and also in Washington DC. In his May 2016 report [S/2016/447, para. 34] report to the Security Council on the Protection of Civilians, the Secretary General stated that:

“The forthcoming Oxford guidance on the law relating to humanitarian relief operations in situations of armed conflict, which the Office for the Coordination of Humanitarian Affairs commissioned on my request, should enhance understanding of such a legal framework and inform policies to improve humanitarian access.”

This point was reiterated in the Foreword to the Guidance by the UN Under-Secretary General for Humanitarian Affairs who stated that:

“The present Guidance will assist a variety of actors concerned with humanitarian relief operations, including parties to armed conflict, other states, international and non-governmental organizations seeking to provide humanitarian assistance, the United Nations Security Council and General Assembly and other relevant bodies, legal practitioners, scholars and the media.”

Read the rest of this entry…

Print Friendly
 

The Airstrike Killing Members of the Syrian Armed Forces was not an International Crime

Published on October 19, 2016        Author: 

The US coalition formed to combat the Islamic State was recently involved in a drone strike in Syria which mistakenly killed at least 62 Syrian government troops. The air strike involved US, British, Danish and Australian forces. An investigation into how the incident occurred is currently underway.

The attack was described by Syria’s president Bashar al-Assad as ‘flagrant aggression’ and led to the Russians calling an emergency meeting of the UN Security Council. Suggestions have since been made by some that at least the British nationals involved in the attack could face the possibility of an International Criminal Court (ICC) investigation.

The purpose of this post is not to explore the likelihood or unlikelihood of an ICC investigation. Rather, it is to consider whether an international crime has been committed in attacking and killing the Syrian soldiers.

There are three possibilities: firstly, that the act was a war crime; secondly, that it was a crime against humanity committed during an armed conflict; and thirdly, that it was a crime against humanity committed during peacetime. Read the rest of this entry…

Print Friendly