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Home Archive for category "International Humanitarian Law"

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.

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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.

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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.
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Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

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Use of Grad Rockets in Populated Areas: What Lessons from Gotovina?

Published on July 30, 2014        Author: 

Maya Brehm PhotoMaya Brehm is a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights (ADH) and a consultant with Article 36 and PAX. Her recent work focuses on the humanitarian impact of explosive weapon use in populated areas and on framing the policy debate on autonomous weapons systems.

In a recently published report, Human Rights Watch (HRW) documents harm to civilians from the use of 122mm Grad rockets apparently fired by Ukrainian government forces and pro-government militias into Donetsk and its suburbs. In four attacks investigated by HRW at least 16 civilians were killed and many more wounded. According to HRW insurgent forces also recently used Grad rockets. The image below from HRW shows attacks in and around Donetsk (click to enlarge). The organization has also posted a video online presenting its findings.

 The problem with Grad rocketsGrad rockets

Grad rockets are unguided rockets fired from a multiple-barrel rocket launcher (MBRL) that can deliver up to 40 rockets within a very short time to a range of 20 kilometers. Like other unguided, indirect fire  weapons, Grad rockets are considered ‘area weapons’, suited for attacks against targets of significant dimensions, because due to ballistic and other factors, the area over which the rockets can spread out is relatively wide.

The dimension of the area affected by a rocket attack (the area of potential impact of the rockets combined with the blast/fragmentation zones of the individual rockets) is a function of many variables, including fuzing, ballistic and firing technique-related factors. As that area can be very wide, the use of Grad rockets in populated areas carries a high risk of harm to civilians. Read the rest of this entry…

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Two Articles on the Relationship between IHL and IHRL

Published on July 14, 2014        Author: 

Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.

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Four Scenarios on the Relationship between IHL and IHRL

Published on July 9, 2014        Author: 

The issue of the relationship between international humanitarian law and international human rights law is often mixed together with other difficult questions of international law. This is not very conducive to conceptual clarity. One way of advancing that clarity is to construct hypotheticals which isolate as many of the various issues as possible, so that we can through a thought experiment better appreciate both how they operate individually and how they interact with one another, and move through them carefully, step by step, while resisting the temptation of introducing further complicating considerations.

In this post I’ll present four such (not so) hypothetical scenarios. These are the quintessential hard cases: they all deal at least with an apparent conflict between IHRL and IHL with regard to the use of lethal force and preventive security detention without judicial review. This is not to dispute that in the vast majority of other situations IHRL and IHL would be complementary. My reason for focusing on the hard cases is that they allow us to address more clearly conceptual questions such as the nature and utility of the lex specialis principle.

Scenario 1: NIAC

State A is a party to both the ICCPR and the ECHR. A non-international armed conflict is taking place on its territory, between the state’s forces and those of a non-state actor, B, an organized armed group. The constituent elements of the NIAC threshold are met beyond any doubt. In an operation during the dead of night, A’s forces kill a dozen of B’s fighters sleeping in a barracks (e.g. by shelling it from a distance), presumably doing so in complete accordance with the applicable IHL rules on targeting. From the facts on the ground, however, it was clear that A’s forces were perfectly capable of capturing B’s fighters had they wanted to do so, with little or no risk to A’s own soldiers. Indeed, B’s fighters sleeping in an adjacent barracks were captured and detained by A as threats to state security for the duration of the NIAC, without criminal charge, and without any judicial review of the legality of the detention.

Questions:

1)     Do the ICCPR and the ECHR apply in principle to the killing and detention of B’s fighters, i.e. did these individuals have human rights vis-à-vis A? Assuming that the answer to this question is yes:

2)     Was the killing of B’s fighters lawful under Article 6 ICCPR? Why or why not?

3)     Was the killing of B’s fighters lawful under Article 2 ECHR? Why or why not?

4)     Was the detention of B’s fighters lawful under Article 9 ICCPR? Why or why not?

5)     Was the detention of B’s fighters lawful under Article 5 ECHR? Why or why not?

6)     Would a derogation under either treaty be permissible, and if so would the prior existence of a derogation have any impact on the analysis under questions 2-5?

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Non-State Armed Groups in NIAC: Does IHL Provide Legal Authority for the Establishment of Courts?

Published on June 4, 2014        Author: 

The recent Serdar Mohammed v. Ministry of Defencecase has prompted a number of interesting and insightful posts addressing the issue of whether international humanitarian law (IHL) provides a legal basis for detention in Non-International Armed Conflicts (NIAC) (see, for example, here, here, here and here). This discussion offers an opportunity to address the issue of non-State armed groups, something not discussed in detail so far, with the notable exception of Aurel Sari’s post. In particular, the existing debate with regard to detention raises, more broadly, the issue of the legal authority extended to non-State armed groups party to a NIAC. In this post, I present an argument in support of one of the most controversial issues in this area: the authority of armed groups to establish courts.

Does IHL regulate armed group courts?

As is well known, IHL does not provide an explicit basis for the establishment of courts in NIAC, but rather regulates their operation in the event they are in fact established. In this regard IHL contains two relevant rules. Common Article 3(1)(d) of the Geneva Conventions of 1949 prohibits ‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court’, while Article 6 of Additional Protocol II (AP II) requires that ‘[n]o sentences shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality’. Regarding the common Article 3 requirement that a court be ‘regularly constituted’, sources such as the ICRC Customary IHL Study note that a court may satisfy this requirement ‘if it has been established and organized in accordance with the laws and procedures already in force in a country.’ This would appear to support the argument that IHL does not provide a specific legal basis for the establishment of courts (authority is derived from the municipal law in force). At the same time, this reasoning also appears to preclude the convening of armed group courts since domestic law is (almost certainly) unlikely to establish a legal basis for non-State armed group courts. That said, it should be noted that the Pictet Commentary to the Geneva Conventions does not equate the regularly constituted requirement with a basis in municipal law, but rather focuses on the prohibition of ‘summary justice’.

Article 6(2) AP II – which ‘develops and supplements’ common Article 3 – dispenses with the ‘regularly constituted court’ provision, requiring instead that a court offer ‘the essential guarantees of independence and impartiality.’ The ICRC Commentary notes that this was a deliberate act during drafting, as ‘some experts argued that it was unlikely that a court could be “regularly constituted” under national law by an insurgent party’. Read the rest of this entry…

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Locating the Legal Basis for Detention in Non-International Armed Conflicts: A Rejoinder to Aurel Sari

Published on June 2, 2014        Author: 

Last month, in response to the decision of the English High Court in Serdar Mohammed v. Ministry of Defence (see Marko’s commentary here), we wrote a piece arguing that Mr Justice Leggatt correctly concluded that international humanitarian law (IHL) does not provide a legal basis to detain in non-international armed conflicts (NIACs). We argued (contrary to Kubo Macak) that authorization to detain in a NIAC does not come from IHL, but rather must be found either in domestic law or in other branches of international law. In particular, we explained that the fact that IHL applicable in NIACs recognises that detention will occur and regulates such detention does not mean that this body of law provides an authority to detain in NIACs. Locating the legal basis for detention has significant implications for assessing the legality of detention in a NIAC, under international human rights law (IHRL). Aurel Sari has written an articulate and thought-provoking response to our post. We wish here to respond to the key points of Aurel’s critique of our view.

The Distinction between IAC Law and NIAC Law

Aurel begins by responding to our claim that the regulation of internment by IHL does not necessarily lead to the conclusion that IHL authorises it. However, his main criticism ignores the distinction we draw between the law applicable in NIACs and that applicable in IACs. He argues that to ‘conclude that IHL does not authorize any of the activities it regulates takes the argument too far.’ We agree, and in fact we do not make such a claim. Rather, we consider this issue to reflect one of the key differences between the law of international armed conflicts (IACs) and that of NIACs. As we noted in our post, whereas IHL applicable in IACS specifically authorises combatants to engage in hostilities (Art 43(2) Additional Protocol I) and to intern combatants (Art 21(1) Geneva Convention III) and civilians (Arts 27(4), 42-3 and 78 Geneva Convention IV), in NIACs IHL is silent on all of these issues and instead merely regulates certain aspects of them.

The reason for this difference between the two bodies of law is partly a consequence of the context of the two types of armed conflict. Since IACs concern two or more states, one state or the other is going to be acting on the territory of a foreign state and acting with respect to individuals who are foreign nationals.  In these circumstances, only an explicit norm of international law can provide the legal authority for targeting, detention, etc. Without such a rule of international law, these actions would be unlawful as a matter of international law since states do not have authority to take such action on the territory of another state and have obligations to other states with respect to how they treat nationals of those other states.

However, the position in NIACs is very different since such conflicts relate (mainly) to intra-state, as opposed to inter-state, relations. Read the rest of this entry…

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“War, Protection and the Law”: Second Annual FCO Lecture on International Law

Published on May 23, 2014        Author: 

For the second year in a row now, the lawyers at the Foreign and Commonwealth Office have opened the doors of one of the FCO’s “fine rooms” to fellow members of the international legal community, judges, journalists, and other government officials to play host to a lecture by an individual with a profound impact on the development of international law.

Harold Hongju Koh, the former US State Department Legal Adviser, now Sterling Professor of International Law at Yale Law School, delivered a great lecture last year. This year, we were immensely pleased to welcome Peter Maurer, the President of the International Committee of the Red Cross to speak on the subject of “War, Protection, and the Law: the ICRC’s Approach to International Humanitarian Law” (see full text here). We thought there was no better person to comment on the challenges facing IHL on the centenary of the beginning of the Great War. As the Solicitor General noted in introducing President Maurer, it is thanks in no small part to the work of the ICRC, that respect for IHL has grown all over the world since the war that was supposed to “end all wars”.

Nevertheless, one hundred years on, the use of chemical warfare against soldiers in those Great War trenches has awful resonance with the chemical weapons attacks on civilians that we have seen so recently in Syria. President Maurer’s speech grappled with a number of such critical challenges for IHL, ranging from the ramifications of overlap between IHL and human rights obligations and gaps in the law on detention, to monitoring and influencing new technologies of warfare.

Our hope is that events such as our Annual Lecture will be a constructive means of fostering discussion and debate in the wider international legal community. This year we were determined to do more to increase the accessibility of our lecture to as many people as possible, particularly academics and law students, who might like a “virtual seat”! We are really pleased to present a video of this year’s lecture, and the lively question and answer session that followed. Please do leave us comments, or join the twitter discussion of the lecture at #lawofwar.

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