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Home Archive for category "Terrorism"

Green Light from the ICJ to Go Ahead with Ukraine’s Dispute against the Russian Federation Involving Allegations of Racial Discrimination and Terrorism Financing

Published on November 22, 2019        Author: 

 

On 8 November 2019, the ICJ delivered its highly anticipated judgment in Ukraine v Russia on the preliminary objections raised by the Russian Federation with respect to the Court’s jurisdiction and the admissibility of Ukraine’s claims under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The ICJ overwhelmingly rejected Russia’s preliminary objections that the Court lacks jurisdiction to entertain Ukraine’s claims under both CERD and ICSFT, and found that Ukraine’s Application in relation to CERD claims was admissible. The ruling was hailed as a victory by Ukraine, as it clearly achieved more than it bargained for at this stage of proceedings, given rather modest provisional measures that were earlier granted by the Court only under CERD (see more here). Ukraine succeeded in avoiding the fate of Georgia, whose case against Russia under CERD – arising out of the 2008 Russia-Georgia war – was rejected on jurisdictional grounds and did not proceed to the merits stage.

The Ukraine v Russia dispute is narrowly limited to Ukraine’s claims under CERD with respect to the situation in Crimea, and claims under ICSFT with respect to the ongoing armed conflict in eastern Ukraine. However, it touches upon some broader highly contested issues related to the unlawful occupation/annexation of Crimea and Russia’s degree of military involvement in the conflict in eastern Ukraine, which are beyond the scope of the judicial inquiry at the ICJ (see more here). The proceedings are complicated by the Parties’ divergent accounts of factual circumstances surrounding the situation in Crimea and eastern Ukraine, which will become even more prominent at the merits stage. In order to determine its jurisdiction ratione materiae under the respective compromissory clauses in both CERD and ICSFT, the Court had to determine whether the acts of which Ukraine complained fall within the provisions of both treaties. Further to this, the Court had to ascertain the fulfilment of the procedural preconditions for the seisin of the Court under both instruments. Read the rest of this entry…

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International Law and Maritime Terrorism

Published on November 19, 2019        Author: 

 

The death of the Islamic State’s (IS) leader (27 October 2019), Abu Bakr al-Baghdadi, in a US operation in Syria has again put international terrorism at the centre stage. Precisely, this blog post discusses a manifestation of international terrorism: maritime terrorism. As evidenced below, analyses of maritime terrorism are relevant in international law and policy. Yet, maritime terrorism has received limited attention, arguably because most terrorist attacks take place on land or aircrafts. This post aims to draw attention to this key and topical issue and has two parts: a discussion on the need to create a category of maritime terrorism as an international crime, and an analysis of difficulties related to the definition of maritime terrorism as an international crime. Despite its focus on maritime terrorism, the post also applies to international terrorism at large.    

Urgency of creating a category of maritime terrorism as an international crime

Two reasons arguably demand the crafting of maritime terrorism as an international crime. A first reason is that international terrorist groups such as the IS and, sometimes, allegedly state-sponsored individuals have committed a number of maritime terrorist attacks during the last decades, leading to related state and international practice. For instance, on 23 September 2019, a group affiliated with the IS in the Philippines aboard two pump boats ambushed and seized three fishermen off the coast of East Sabah (Malaysia). Indeed, maritime terrorist activities in the Malacca and Singapore Straits have prompted The Philippines, Indonesia and Malaysia via a Trilateral Cooperative Agreement (2017) and ASEAN to act. There is also a bilateral agreement between the Philippines and India (October 2019) aimed to strengthen their ties to ensure maritime security, particularly as for maritime terrorism. Earlier this year (May 2019), four Saudi oil tankers, one bound for the US, were attacked following warnings that Iran or proxies could target shipping although the Security Council (SC) fell short of blaming Iran. These examples illustrate the current relevance of analyses of maritime terrorism under international law. It was indeed a maritime terrorist attack that prompted the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) (1988). The Achille Lauro, an Italian-flag cruise ship, was seized by Palestine Liberation Front members (October 1985). They held the ship’s crew and passengers as hostages, threatened to kill them, and demanded Israel to release 50 prisoners to spare the hostages. In the post 9-11 era, a number of maritime terrorist attacks have occurred, including Al-Qaida attacks against the US destroyer Cole in Yemen (2000), a French oil tanker in Limburg (2002), and an offshore oil terminal in Iraq (2004), as well as an IS-affiliated group’s attack on an Egyptian vessel in the Mediterranean Sea (2015). Read the rest of this entry…

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The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences

Published on March 20, 2019        Author: 

On 8 March, the Chamber of Indictments of the Court of Appeal of Brussels decided to discontinue the prosecution of thirty-nine individuals and two media companies affiliated to the Kurdistan Workers’ Party (PKK). All were being prosecuted for participating in the activities of, or directing, a terrorist group. The Federal Public Prosecutor’s Office had opened the investigation in 2006, and initially also alleged that the Belgian branch of the PKK was responsible for (forcibly) recruiting young Kurds to partake in the conflict with Turkey. However, any specific charges in this respect were dismissed in 2017 due to a lack of evidence.

The judgment forms the (provisional) ending to a procedural saga. On 13 February last year, the Court of Cassation had largely annulled a similar decision by the Chamber of Indictments of 14 September 2017 on the ground of a lack of motivation. That 2017 decision had in turn confirmed a decision of the Correctional Pre-Trial Chamber of the Court of First Instance of Brussels of 3 November 2016. Strikingly, throughout the case, the Turkish state had been a civil party and thus fully joined the prosecution in its argumentation. Not surprisingly, the decisions have caused fierce reactions from Turkey, which has summoned the Belgian ambassador in Ankara to protest the 8 March ruling, calling it ‘unacceptable’ (see here).

This post first explains the IHL exclusion clause, which forms the basis on which Belgian courts have decided to discontinue the prosecution of PKK members. It then briefly addresses how Belgian courts have struggled to apply the clause in other cases, goes over the earlier PKK judgments, and concludes with a short analysis of the decision of 8 March and its implications. Read the rest of this entry…

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UK Extraterritorial Financial Sanctions: Too Much, Too Little, Too Late?

Published on July 17, 2018        Author: 

The US practice of the extraterritorial application of sanctions was criticised for years as, at best, the illegitimate abuse of its particular position in the world’s economy. Despite its fully comparable position in international finance, the United Kingdom was shielded from such criticism predominantly thanks to the transfer of respective decision-making to Brussels. The nature and scope of sanctions were delineated by EU laws. As the UK prepares its (financial) sanctions regime for Brexit, could it draw criticism similar to the US for both giving too broad discretionary powers to the government and preventing it from meeting UK international obligations at the same time? I suggest the new regime for the extraterritorial application of sanctions possibly opens the UK to international liability for, both, the lack of a legal basis for a legal restriction upon states as well as inevitable omissions to prevent gross violations of international law.

Since analysis of legal sanctions under international law is a very complex, multi-stage exercise, I focused on relatively easier cases of discretionary goals of foreign policy and extraterritorial sanctions, where the legal threshold for an internationally wrongful act is lower. Accordingly, I highlight the normative basis for adopting financial sanctions against third-state persons not covered by exceptions, British BITs, or the most relevant multilateral treaties. As for possible breaches of international law by omission, I focus on tolerating the provision of financial services contributing towards gross violations of international law. Because of length limitations, I do not discuss anti-money laundering per se, which is subject to yet another chapter of the law in question.

Read the rest of this entry…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 

Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

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JASTA Keeps Saudi Arabia on Trial for 9/11 Terror Attacks: The US and its Foreign Sovereign Immunity Issue

Published on April 17, 2018        Author:  and

In its decision of 28 March 2018 the US District Court for the Southern District of New York denied Saudi Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the September 11 terror attacks, In Re Terrorist Attacks on September 11, 2001 (03-MDL-1570(GBD)) (“the Decision”). In doing so, the Court applied the Justice Against Sponsors of Terrorism Act, 28 USC §1605B (“JASTA”), for the first time since it was passed by the US Congress on 27 September 2016.

The JASTA created, inter alia, a new exception to the Foreign Sovereign Immunity Act, 28 USC §1602 (“FSIA”), to the effect that sovereign immunity under the FSIA is waived:

“in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by –

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless of where the tortious act or acts of the foreign state occurred.” (“JASTA exception”)

The Bill generated significant debate both within and outside the US, and whilst under consideration by Congress, Victor Grandaubert warned in a well-reasoned post on this blog that if passed the JASTA would “entrench the isolated and unlawful position of the US in this area”. We take the opportunity of this first application of the Act to provide an update on the recent developments. The post will examine first the Decision, and will then move to address the position of the US in relation to customary international law on sovereign immunity. Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and

In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

Published on January 30, 2018        Author: 

Operation Olive Branch

On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.

Non-state armed attacks?

First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). Read the rest of this entry…

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War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

Published on November 9, 2017        Author: 

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…

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Guantanamo Surrealism

Published on November 2, 2017        Author: 

The surrealism of the moment defies description. Who would have thought, even only a short while ago, that on a nice November morning a US military commission judge in Guantanamo would be holding a Marine general and chief defense counsel for the commissions in contempt, sentencing him to 21 days of confinement in, well, Guantanamo? Who would have thought that on that same day the President of the United States would be deriding the US criminal justice system as a “joke” and a “laughingstock,” while suggesting that the “animal” who perpetrated a deadly vehicular terrorist attack in New York City be sent to that same Guantanamo, with its oh-so-successful, cost-effective military commissions? That he and his White House would, in 2017, be calling this individual an “enemy combatant”?  That he would be joined in doing so by prominent US senators, lamenting the fact that the individual concerned has not yet been shipped off to Gitmo, despite the fact that he essentially committed his crime in full public view and on camera, so that the likelihood of his acquittal before any regular civilian court would effectively be nil? 

Surrealism is by definition unexpected. Slippery slopes  are not. They can often be seen from a very, very long way off. And many of us have spent years warning some of our US colleagues of the dangers of some of the theories they have been advancing in the pursuit of the global conflict against terror. Just a few weeks ago we had just such an “IHL party” on the blog, provoked by a post of Ryan Goodman on Just Security. I pointed out in that discussion that while there was a measure of agreement on the geographic scope of application of IHL, that issue was part of a broader package, and that some items in that package – above all the definition of the relevant armed conflict and the classification of individuals with a nexus to that conflict – continued to attract controversy, inter alia because of the manifest possibility of abuse of some of the lines of argument put forward and their lack of basis in conventional and customary IHL.

So I therefore have a question for our American colleagues, including my friends on Just Security and Lawfare – let us assume that the facts about the New York terrorist continue to be as we know them today, i.e. that he essentially self-radicalized by looking at ISIS materials on the Internet and that he, beyond professing allegiance to ISIS, was at no point subject to the chain of command of that armed group fighting in Iraq and Syria. On these facts, are we in agreement that there is no way that this individual could be qualified, under the relevant rules of international law, as a fighter in any IHL-cognizable armed conflict? I am not asking what consequences this would have under US domestic law, including the AUMF; I am only interested in IHL. Under IHL, it seems to me that there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual has a nexus to any armed conflict/was a member of a non-state armed group engaging in hostilities in such a conflict. He is not an “enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal. This is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today. Do we agree? 

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