Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.
Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones. *MINOR SPOILERS FOLLOW*
As recently reported, Croatia has blocked the opening of Chapters 23 and 24 of the accession negotiations between Serbia and the European Union (EU). One of the reasons given relates to Serbia’s law establishing the jurisdiction of Serbian prosecutors and courts over war crimes committed anywhere on the territory of the former Yugoslavia. Justifying their actions, Croatian officials have said that Serbia must follow “European standards”, with some Croatian officials and media reports referring to Serbia’s extension of jurisdiction as the creation of a “mini-Hague” (a media report in Serbo-Croatian is available here). Croatia has asserted that such jurisdiction is incompatible with international law and that it actually constitutes a “hybrid”, rather than universal, jurisdiction (available here in Serbo-Croatian). From the perspective of States whose national legislation provides for universal jurisdiction over international crimes, the issues arising here are quite interesting.
The involvement of the European Commission and its request that the Croatian government cease its opposition has added further complexity to the matter. In a ‘non-paper’, the European Commission has expressed its opinion that the arguments advanced by Croatia are not justified. Commenting on the document, a Croatian official has described it as an old document meant for internal use, and one that the Croatian public should not be bothered with.
Jurisdiction over Croatian Nationals
Croatia’s criticism seems to be aimed at the statutory provisions themselves. In particular, Croatia takes issue with Article 3 of the Serbian Law on Organization and Jurisdiction of State Organs in War Crimes Proceedings, which provides:
The government authorities of the Republic of Serbia set out under this Law shall have jurisdiction in proceedings for criminal offences specified in Article 2 hereof, committed on the territory of the former Socialist Federative Republic of Yugoslavia, regardless of the citizenship of the perpetrator or victim. (An older English version of the law is available here; the quoted provision remains unchanged.)
Croatia thus appears concerned with the possibility of Serbia exercising its jurisdiction over Croatian nationals. No accusations of discriminatory or systematic prosecutions by Serbian prosecutors against Croatian nationals have been advanced by Croatia. To date, universal jurisdiction has not been extensively used to prosecute foreign nationals for war crimes allegedly perpetrated in the Yugoslav conflict; reported cases include both an acquittal and a rejection of a request for extradition (for the reason of an allegedly politically motivated process) of two Bosnians. In 2015, a Croatian national sentenced in Serbia for war crimes was transferred to serve his sentence in Croatia.
Compliance with “European Standards” and International Law
The Croatian government is targeting a particular statutory provision, which in its opinion, marks Serbia’s intention to act as a “regional policeman”. Read the rest of this entry…
The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.
In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”
So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”
Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.
Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”
It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Read the rest of this entry…
New EJIL:Live! Joseph Weiler and Yishai Beer Discuss the Implications and Risks Involved in Revitalizing the Concept of Military Necessity
The latest EJIL: Live! episode features the Editor-in-Chief of the EJIL, Professor Joseph Weiler, speaking with Professor Yishai Beer, from the Radzyner School of Law in Israel, about his provocative and controversial article, “Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity”, which appears in EJIL, Volume 26, Issue 4. Professor Beer argues that there is an artificial tension between military necessity and humanity in the law of armed conflict. Military professionalism, he maintains, can act as a constraint on the brutal use of force and can better help to achieve the objectives of humanitarian law. The conversation explores the implications and risks involved in Professor Beer’s proposal to revitalize the concept of military necessity.
The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!
The International Committee of the Red Cross has launched the first batch of its new commentary to the Geneva Conventions, following up on the authoritative, but dated, commentaries edited by Jean Pictet. The commentary to GC I is available here; the commentaries are published electronically, side by side with the prior Pictet version, and are comprehensive, accessible and easy to use. An ICRC press release is available here. The commentaries to the other three Conventions will follow in due course, but a lot of the foundational work on the common articles will of course be the same across all of the treaties. All in all this is a major endeavour by the ICRC (which more academic commentary complements nicely), and I hope it will be prove to be as successful as the Pictet commentary and the customary law study.
ESIL-International Human Rights Law Symposium: ‘Operationalising’ the Relationship Between the Law of Armed Conflict and International Human Rights Law
Today it is accepted that both the law of armed conflict and international human rights law continue to apply in situations of armed conflict. Indeed, the European Court of Human Rights recently addressed the co-application of these two bodies of law for the first time in Hassan v. The United Kingdom, and the potentially landmark case of Georgia v. Russia (No. 2) is currently pending. However, the precise relationship between the law of armed conflict and international human rights law is subject to significant uncertainty. In particular, the content of the rules applicable on the battlefield remain unclear. Resolving this uncertainty is clearly an essential and pressing issue: States’ armed forces must be able to effectively and foreseeably regulate their activities, particularly if they are to be subject to judicial review before regional human rights bodies.
This post will discuss the role that human rights bodies, and in particular the European Court of Human Rights, may play in resolving uncertainties arising in relation to the co-application of the law of armed conflict and international human rights law. It is suggested that such judicial regulation can provide much needed clarity and assist in our understanding of the law applicable on the battlefield. However, that statement comes with a significant caveat. It is essential that, in applying the law of armed conflict, human rights bodies remain cognisant of the unique nature of this body of law and ensure that the application of international human rights law remains appropriate to the operational needs of the armed forces and the reality of armed conflict itself. Specifically, when interpreting and applying the law of armed conflict, human rights bodies must interpret the rules in the manner usual to that field. Failure to do so risks undermining the effectiveness of the law, thereby undermining the minimum – but essential – protections established in relation to armed conflict. Significantly, it also risks undermining respect for the decisions of human rights bodies. It should be highlighted that violations of both the law of armed conflict and international human rights law are primarily civil in character, and that there can be a violation of either or both of these bodies of law, in situations where no individual liability (say for a war crime) arises.
The development of the law of armed conflict by judicial bodies is not a new phenomenon (see for instance, Shane Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law (CUP 2014)). The International Criminal Tribunal for the former Yugoslavia in particular has played a significant role in the development of the law of armed conflict, with key decisions relating to the definition of armed conflict, the indicators of non-international armed conflict, and the confirmation that the rules on the conduct of hostilities developed for international armed conflict are largely applicable to non-international armed conflict on the basis of customary law. Read the rest of this entry…
ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law – A Research Agenda
In our first post as co-chairs of the ESIL Interest Group on Human Rights, we suggested that human rights are central organising principles of public international law. We noted that:
International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute).
In this symposium, we deepen our inquiry into the relationship of international human rights law (IHRL) with other sub-branches of public international law. We do so by examining in what ways and the extent to which IHRL has shaped and influenced the development of international criminal law, the law of armed conflict, international investment law, cultural heritage law and development. Looking at interactions between IHRL and a number of other sub-branches of public international law (PIL) demonstrates that there are both divergences and convergences in why and how far IHRL influences other bodies of PIL.
The contributions in this symposium indicate that all sub-branches under discussion interact with IHRL. There are, however, significant variations in how far they interact, the terms of interaction and the assessments of the consequences of such interaction. What explains such variation? Our contributors identify push and pull factors.
The purposive affinity between IHRL and other branches of PIL emerges as an important factor supporting IHRL’s influence on other branches. Lixinski on international cultural heritage law, Murray and Hampson on international humanitarian law, and Cryer on international criminal law, all point out that interactions with IHRL are strong because there are overlaps between what these bodies of law are seeking to achieve and IHRL. Van Ho’s post, on the other hand, points to the perceived lack of purposive affinity between IHRL and international investment law accounting for the limited interaction between the two sub-branches. Read the rest of this entry…
Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia
On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.
This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.
Crimes within the Jurisdiction of the ICC
The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…
The 32nd International Conference of Red Cross and Red Crescent (IC), held from 8th to 10th December 2015 and bringing together delegations from States Party to the Geneva Conventions (GCs), National Red Cross and Red Crescent Societies, the ICRC and the IFRC, has already attracted some comments (here and here). A little-explored topic to date has been the adoption of Resolution 2 on “Strengthening compliance with international humanitarian law”. This Resolution was linked to the so-called ‘compliance track’: an initiative managed by the ICRC and Switzerland, aimed at identifying options to improve the implementation of IHL.
A draft resolution circulated in October 2015 recommended that States create a new compliance mechanism, the so-called “Meeting of States on IHL” (MoS), and identified the key elements proposed for that mechanism. This draft resolution was also accompanied by a Concluding Report, providing insights into the consultation process and emphasizing the questions still pending. However, delegations at the International Conference were unable to reach a consensus on this new mechanism. Operative paragraph (OP) 2 of Resolution 2 adopted at the International Conference merely recommends “the continuation of an inclusive, State-driven inter-governmental process based on the principle of consensus…to find agreement on features and functions of a potential forum of States…in order to submit the outcome of this intergovernmental process to the 33rd International Conference”. The Resolution reiterates a series of guiding principles intended to inform further discussions. This post will describe the key features of the proposed Meeting of States. It will be noted that the proposals which were put to the International Conference, but not adopted, contained only a minimal option for strengthening compliance with IHL, though it would have had the merit of planting a tiny seed in the IHL system, with an eye to its possible ripening into a fruit.
The path towards the 32nd International Conference
The ‘compliance track’ was developed following the adoption of Resolution 1 at the 31st IC held in 2011, where the ICRC (later joined by Switzerland) was entrusted with pursuing consultations to enhance the effectiveness of IHL compliance mechanisms. A shared skepticism on the effectiveness of some existing mechanisms (such as Protecting Powers, Enquiry Procedures, Meeting of the High Contracting Parties, or the IHFFC) lay behind this request. In particular, as such mechanisms were designed for international armed conflicts and are dependent on States’ consent for their activation, they have barely functioned as envisaged. States’ discomfort with the increasing proliferation of (sometimes) proactive compliance mechanisms operating outside the realm of IHL, such as human rights bodies, was an additional element in favor of the possible development of new mechanisms for implementing compliance with IHL. Read the rest of this entry…