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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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What Lies Beneath the ‘G’ Word? Genocide-Labelling and Fact-Finding at the UN

Published on May 28, 2015        Author: 

In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.

It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”

What about genocide?

The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.

This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):

…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.

There are two problems with this conclusion. Read the rest of this entry…

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Protecting Europe or Irregular Migrants? The (Mis)use of Force in the Mediterranean

Published on May 15, 2015        Author: 

On Monday 11 May Federica Mogherini, the High Representative of the European Union for Foreign Affairs and Security Policy, officially briefed the UN Security Council on the current crisis in Europe. The crisis relates to the sharp increase of fatalities of individuals trying to cross the Mediterranean in order to reach European shores. The International Organization for Migration (IOM) reports 1.800 deaths since the beginning of 2015, more than 800 of them during a single incident in April. Deaths in the Mediterranean are an annually recurring tragedy triggering public outcry in spring that dwindles down as less individuals attempt the journey due to the harsher conditions at sea during the colder months. However, 2015 is likely to become the deadliest year. According to Peter Sutherland, Special Representative of the UN Secretary-General for International Migration, these numbers represent a 20-fold increase over the same period last year. The surge in fatalities is largely attributed to the discontinuation of the search and rescue operation Mare Nostrum by the Italian navy and its replacement by the smaller scale operation Triton. The latter is coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and focuses on border control and surveillance rather than search and rescue (see also here).

To be sure, this demands action. An ‘exceptional and coordinated response’ is required to deal with the ‘unprecedented situation’, Ms Mogherini told the Security Council. On 23 April the European leaders came together for an emergency summit to devise a plan of action to respond to the tragedy. The action plan, presented to the Security Council on Monday, promises a strengthened European presence at sea, announces increased efforts to prevent irregular migration and declares the fight against human traffickers a priority. To crack down on human traffickers Europe pledges to undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers. This course of action is not without obstacles. The vessels in question, prior to their use, are mostly situated in Libya, but surely outside Europe. Quite inconspicuous at first sight, Europe’s proposal therefore requires using military force on the territory of another state and touches upon a bedrock rule of international law: the prohibition of the use of force. Read the rest of this entry…

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A UN Special Rapporteur on Privacy – Why Now?

Published on March 24, 2015        Author: 

As the 28th ordinary session draws to a close this week, the UN Human Rights Council is expected to consider a proposal to create a new UN Special Rapporteur on the right to privacy. The draft resolution, spearheaded by Brazil and Germany and supported by a broad group of states, is the latest of a series of initiatives to bring the right to privacy firmly within the UN human rights agenda.

If established, the Special Rapporteur would provide much-needed leadership and guidance on developing an understanding of the scope and content on the right to privacy, as well as strengthening the monitoring of states and companies’ compliance with their responsibility to respect and protect the right to privacy in their laws, policies and practices. In the last two years, the UN General Assembly, the UN High Commissioner for Human Rights and existing special procedure mandate holders have all recognized the pressing need to provide continuous, systematic and authoritative guidance on the scope and content of the right to privacy, particularly in light of the challenges of modern communications.

Read the rest of this entry…

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An Old Question in a New Context: Do States Have to Comply with Human Rights When Countering the Phenomenon of Foreign Fighters?

Published on March 19, 2015        Author: 

The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters have the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

1.  Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Read the rest of this entry…

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part II

Published on December 9, 2014        Author: 

This is Part II of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights on the proposal to introduce temporary exclusion orders of British citizens suspected of engaging in terrorist activities. Part I discussed the implications of temporary exclusion orders (TEOs) for the UK’s international legal obligations to British citizens. This Part discusses the implications for its obligations to other States.

Responsibility to other States

There is no justification in international law for the exclusion, even temporarily, of British citizens from the United Kingdom. So far as such exclusion engages the legal interests of other States, there may be some scope for agreements with the UK. However, no such agreement can avoid the UK’s international legal obligations towards its citizens – they continue and cannot be outsourced.

The unstated premise of ‘host State’ assistance is, necessarily, the existence of an agreement between the United Kingdom and any such State. The Home Office Impact Assessment on temporary exclusion orders refers briefly and on just a few occasions to ‘host’ States, to describe those which will be expected to carry the burden of the TEO policy, including the risks which presumably accompany harbouring individuals suspected of terrorist associations. The Impact Assessment refers repeatedly to the risk which terrorism might pose to the United Kingdom, but not at all to any such risk to ‘host’ States. Moreover, apart from one reference to discussions with France in relation to juxtaposed controls, neither this document nor any other mentions the necessity for agreements, or considers the elements which might well be considered essential. Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

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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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Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

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