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Home Archive for category "International Humanitarian Law"

The Polisario case: Do EU fundamental rights matter for EU trade policies?

Published on February 3, 2017        Author: 

On 10 December 2015, the General Court of the European Union (GC) rendered a judgment in the Council v. Front Polisario case that was revolutionary in many regards: not only did a national liberalization movement successfully challenge an EU trade agreement, the Court also considered the EU Charter of Fundamental Rights (CFR) applicable to non-EU citizens on a non EU-territory and in the context of trade policies (see previously, Geraldo Vidigal in EJILTalk).

A month ago and a year later, the European Court of Justice (ECJ) quashed the decision of the GC and denied legal standing for the Front Polisario. However, the door for a role of EU fundamental rights as a benchmark for EU trade policies is not yet closed. To the contrary, the ECJ’s conclusions brought to the fore an ugly truth that shows that the extraterritorial effects of EU trade policies are in urgent need of closer scrutiny.

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

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What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

Published on January 12, 2017        Author: 

Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

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The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access

Published on December 16, 2016        Author: 

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.

It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.

Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.

It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot. Read the rest of this entry…

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Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent

Published on December 16, 2016        Author: 

In the Oxford Guidance, the authors make a careful exposition of the legal framework relating to humanitarian relief operations in situations of armed conflict. Responding to the unseemly practice of some states impeding humanitarian relief operations, they make the compelling, practice-based argument that states have an obligation under international law not to arbitrarily withhold consent to such operations (pp. 21-25). That states have such an obligation does however not necessarily mean that humanitarian relief actors have a right to conduct relief operations absent such consent. The primary rules of international humanitarian law, in any event, while providing for the former obligation, do not provide for the latter right. Secondary rules of international law on state responsibility may come to the rescue here. As the authors of the Oxford Guidance correctly point out, the doctrines of necessity and countermeasures under the general law of state responsibility may also apply as circumstances precluding the wrongfulness of “third” states’ relief operations on the territory of the non-consenting state (pp. 51-55). In this post, I will critically reconstruct the authors’ application of the law on countermeasures. I will limit myself to countermeasures taken by third states. I have addressed the taking of humanitarian relief-based countermeasures taken by non-state humanitarian actors (NGOs) in an earlier publication. 

The main obstacle to a third state conducting relief operations as a countermeasure is that this state is not itself ‘injured’ by the territorial state’s withholding of consent. Indeed, the better position is that the non-relieved civilians are the injured parties, and that the state wishing to conduct the relief operation is a non-injured state. This begs the question whether in that capacity it is entitled to take countermeasures in the face of the territorial state’s arbitrarily withholding consent to the relief operation. The authors of the  Oxford Guidance take the ‘progressive’ position that they can. Read the rest of this entry…

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Joint Discussion on The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Just Security Posts

Published on December 16, 2016        Author: 

The second and third posts in our joint blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict are now available on Just Security. The blog posts are as follows:

Read the full posts over on Just Security.

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Taking Stock of the Law on Targeting, Part II

Published on December 15, 2016        Author: 

On Monday, I used the recently released U.S. report on military operations to assess the law on targeting. I argued that the dominant mode for analyzing these operations — asking whether international humanitarian law (IHL), international human rights law (IHRL), or a combination of both regimes governs — is problematic. The targeting rules in each regime are context-dependent, so the rules that have been developed for one context would not necessarily require the same thing if they were extended to a different context. Focusing so heavily on the regime choice is not only unhelpful but can be counterproductive. It reinforces the idea that the regime choice is ultimately what determines the codes of conduct. And so, it makes it harder to develop the law for situations that fit neatly into neither regime. Today, I’ll use U.S. targeting policies to amplify on my argument.

U.S. Position on Targeted Killings

The U.S. position is significant precisely because it pushes past the stale IHL-versus-IHRL debate. The United States does not treat the regime choice as particularly relevant to question of which targeting rules apply.

The U.S. legal claim seems to be that, although IHRL might apply to certain cross-border targeting operations, IHL defines or supersedes what IHRL would require; IHRL does not have independent force. Yet for years now, the United States has made clear that it does not intend to exploit, in all contexts in which it says IHL applies, the expansive authorities that are usually associated with IHL. The United States claims that, outside designated areas of active hostilities, it generally will use force only when someone “poses ‘a continuing, imminent threat to U.S. persons’” and “only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” (See p. 25 of the U.S. report.) Read the rest of this entry…

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The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction

Published on December 14, 2016        Author: 

Editor’s Note: This post is cross posted at Just Security.

As many current conflicts across the globe demonstrate, humanitarian access is a central challenge to the protection of civilians in armed conflict. Parties to conflict often impede the delivery of much needed humanitarian relief supplies exacerbating hunger, disease and want. However, insufficient attention appears to have been paid to the legal framework that applies to the provision of humanitarian relief in armed conflict. In his 2013 Report on the Protection of Civilians in armed conflict the Secretary-General instructed (at para. 80) United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to analyse one aspect of the law regulating humanitarian relief operations: the issue of arbitrary withholding of consent and the consequences thereof. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations to conduct expert consultations to examine the rules and the options for providing guidance. We were honoured to lead this process of consultation resulting in the elaboration and drafting of the Guidance.

At the first meeting the experts unanimously agreed that it would not be possible nor, indeed, helpful to focus exclusively on the question of arbitrary withholding of consent. That element of the rules regulating humanitarian relief operations had to be put into its proper context. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict tries to do precisely that. It presents in sequential order the rules regulating key steps of humanitarian relief operations. It consists of a narrative commentary setting out the law and Conclusions presenting the key elements of the rules. The Guidance seeks to reflect existing law and to clarify areas of uncertainty. Where the law is unclear or the experts expressed different views on particular issues, the narrative text of the Guidance presents the range of interpretations. Each Conclusion does not necessarily reflect the unanimous view of the experts consulted. In addition to setting out the law, the document also aims to provide some practical guidance as to how some of the legal obligations identified may be implemented by the relevant duty holders.

This post highlights four central questions addressed in the Guidance: (i) whose consent is required for the conduct of humanitarian relief operations in non-international armed conflicts? (ii) what amounts to arbitrary withholding of consent? (iii) what are the key elements of the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief operations? and (iv) what the are consequences of unlawful impeding of humanitarian relief operations? Read the rest of this entry…

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The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: A Blog Discussion

Published on December 14, 2016        Author: 

We are delighted to announce that, starting today and over the course of this week, EJIL:Talk! and Just Security are coordinating a blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The blog posts are as follows:

  • “The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction” –  Dapo Akande & Emanuela-Chiara Gillard – EJIL: Talk! and Just Security
  • “Humanitarian Access from an Armed Non-State Actor’s Perspective” – Annyssa Bellal – Just Security
  • “Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Some Comments on Arbitrarily Withholding Consent and the Status of the Guidance”  – Rogier Bartels –  Just Security
  • “Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent” – Cedric Ryngaert – EJIL: Talk!
  • “The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access” – Geoffrey Corn –  EJIL:Talk!

We thank all of the participants for their contributions, and we hope readers will enjoy the discussion.

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Taking Stock of the Law on Targeting, Part I

Published on December 12, 2016        Author: 

Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.

One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.

Identifying the Legal Framework

The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate. Read the rest of this entry…

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