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IHL Does Authorise Detention in NIAC: What the Sceptics Get Wrong

Published on February 11, 2015        Author: 

As Serdar Mohammed v Ministry of Defence hits the English Court of Appeal, the blogs have lit up with comments, criticisms and predictions. In recent posts published at Just Security and Opinio Juris, Ryan Goodman, Kevin Jon Heller and Jonathan Horowitz (see here, here and here) have joined with Marko Milanovic and Lawrence Cawthorne-Hill and Dapo Akande (see here, here and here) in defending the view that IHL does not provide States with a legal authority to detain persons in a non-international armed conflict (NIAC). In this post, we wish to outline our challenge to this proposition as mistaken in law and undesirable as a matter of policy (for a more detailed version of our argument, see our recent article in International Law Studies here).

The nature of the law of war

In Serdar Mohammed, Mr Justice Leggatt relied on five arguments to deny the existence of a legal authority to detain under IHL in NIACs (paras 228–251). Despite his meticulous analysis, we do not find the reasoning persuasive. None of the five arguments exclude the possibility that a legal basis for detention exists under customary international law. Even if correct, they establish only the absence of an implicit legal basis under Common Article 3 (CA3) of the Geneva Conventions of 1949 and the relevant provisions of Additional Protocol II of 1977 (AP II). However, Leggatt J’s reading of these provisions is too narrow. In particular, it misconstrues the nature and purpose of IHL as a body of law.

According to Leggatt J, the purely humanitarian purpose pursued by CA3 and AP II is inconsistent with the idea that they were designed to confer a legal power of detention (para. 244). Although humanitarian imperatives have played a central role in the development of modern IHL, they have never been its sole preoccupation. Its other purpose has always been the regulation of hostilities. Focusing on the humanitarian aspects of IHL at the expense of its warfighting dimension ignores its fundamentally dual character. In particular, it fails to appreciate the role played by the principle of military necessity. As Nils Melzer has explained, the ‘aim of military necessity as a principle of law has always been to provide a realistic standard of conduct by permitting those measures of warfare that are reasonably required for the effective conduct of hostilities, while at the same time prohibiting the infliction of unnecessary suffering, injury and destruction’ (Melzer, Targeted Killing in International Law, 279–280). The principle therefore serves both a restrictive and a permissive function. Read the rest of this entry…

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Announcements: South China Sea Conference in Brussels; Conference in London on Int’l Law and EU Law; CfP on Sociology and Int’l Law; Online Symposium on Violence Against Children; Disaster Law Course in Sanremo, Italy; CfP on Int’l Law and Time

Published on February 7, 2015        Author: 

1.  The Centre for International Law of the Vrije Universiteit Brussel has the pleasure of inviting you to a one-day conference: “The South China Sea: An International Law Perspective” on Friday, 6 March 2015 in Brussels, Belgium. Showcasing panels of renowned law of the sea experts, the conference will offer presentations and Q&A sessions centered on the themes of fisheries, navigation, islands and international dispute settlement. Attendance is free, but registration is required, on a first come, first serve basis, by Sunday, 1 March 2015. A walking lunch, coffee breaks and a closing reception will be provided. Please register here. The conference programme may be consulted here. Read the rest of this entry…

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On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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Too Soon for the Right to Hope? Whole Life Sentences and the Strasbourg Court’s Decision in Hutchinson v UK

Published on February 5, 2015        Author: 

Monday’s judgment by the European Court of Human Rights in Hutchinson v UK may have slowed progress towards the goal of ending whole-life sentences in the Council of Europe. That goal appeared to be edging closer after the Grand Chamber’s 2013 ruling in Vinter & Ors v UK, but Monday’s judgment suggests that it is still too soon to speak of a ‘right to hope’ (to use the language favoured by Judge Power-Forde in his separate opinion in Vinter). The court’s Fourth Section held in Hutchinson that the prospect of executive review of the applicant’s sentence (in the form of a discretion exercisable by the Secretary of State to release prisoners in exceptional circumstances) satisfied the requirements of Article 3.

The applicant in Hutchinson was sentenced to life imprisonment upon conviction of burglary, rape and triple murder. He argued that, following Vinter, whole life sentences with no possibility of parole are inhuman and degrading. However, the Grand Chamber’s judgment in Vinter left a loophole, and the court in Hutchinson marched through it. The loophole was the discretion of the Secretary of State for Justice under s30(1) of the Crime (Sentences) Act 1997 to release life prisoners on licence in certain circumstances. In the language of the statute, the circumstances must be ‘exceptional’ and they must warrant release ‘on compassionate grounds’. The Ministry of Justice ‘Lifer Manual’ elaborates further. It provides a list (purporting to be exhaustive) of the grounds on which the discretion will be exercised. They are: where the prisoner is terminally ill; death is likely to occur shortly (a period of three months is mentioned as a guide); appropriate care can be provided outside prison; there is a ‘minimal’ risk of reoffending; and ‘further imprisonment would reduce the prisoner’s life expectancy’. The Grand Chamber in Vinter concluded that ‘compassionate release of this kind’ did not provide a realistic ‘prospect of release’ as required by Article 3 (p45, §127).

That seems straightforward enough, but here comes the twist. The UK had submitted in Vinter that it was possible to read s30 as imposing a duty on the Secretary of State to release a prisoner if detention had ‘become incompatible with Article 3, for example, when it can no longer be justified on legitimate penological grounds’ (p44, §125). The Grand Chamber accepted that this reading of s30 ‘would, in principle’ comply with Article 3 (p44, §125), and that executive review of a whole life sentence can suffice (p43, §120). However, ‘the present lack of clarity’ for life prisoners as to whether their sentences were reducible (p45, §129) contravened Article 3.  Read the rest of this entry…

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Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

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The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars

Published on February 2, 2015        Author: 

Since the initiation of the US-led airstrikes against Islamic State (or ISIL) forces in Iraq and Syria in August and September of last year, the legality of the strikes in Syria has been the subject of much discussion. Much of the focus has been on whether collective self‑defence – of Iraq – allows the use of force against non-State actors in foreign territory (Syria), where the territorial State (Syria) is ‘unable or unwilling’ to stop the attacks itself. However, the legality of airstrikes occurring on Iraqi territory does not appear to have occasioned any discussion at all (although see this previous  post on the debate in the British House of Commons on authorising the use of force in Iraq). The presence of consent by the internationally recognised government of Iraq  to the airstrikes (see here) seems to make legality of foreign military action against Islamic State  under the jus ad bellum so obvious as not to require much commentary. However, a closer look at the scholarship on consent to the use of force reveals that the legality of what has variously been called ‘intervention by invitation’ or ‘military assistance on request’ has traditionally been more contentious than this simple statement would suggest. As discussed below, many scholars, and indeed some States, have suggested that there is a general prohibition on military assistance to governments in a situation of civil war or internal rebellion. This suggestion was particularly prominent in the Cold War era and seemed to represent an attempt to limit indirect uses of force by the superpowers. The rule is said to be derived from the prohibition of intervention in the internal affairs of other states, as well as from the principle of self-determination. The argument made by those in support of the rule is that intervention even with the consent of the government denies the people the right to govern their own affairs and to determine their political future. In short, on this view international law guarantees the right to rebel against the government. Others have doubted that a rule prohibiting assistance to governments in civil wars ever did emerge. This post seeks to demonstrate that recent state practice relating to the use of force in Iraq against Islamic State suggests that the evidence of opinio juris in relation to that rule is at present quite weak.

Support for a Rule Prohibiting Military Assistance to Governments in Civil Wars

According to a 1975 resolution of the Institut de Droit International on “The Principle of Non-Intervention in Civil Wars”, “[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” The resolution defines a “civil war” as a non-international armed conflict: a) between the established government of a State and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of the State, or b) between two or more groups contending for control of the State in the absence of an established government. Read the rest of this entry…

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Announcements: Conference in London on Refugee Law and IHL; Colloquium in Pisa on Agriculture Law; Assistant Professorship in Geneva; Opening for UK Judge on European General Court; Political Science Prof’ship in Oslo; Call for Papers on Law of Atmosphere; Event in London on UK Exit from EU

Published on January 31, 2015        Author: 

1.  The International Law Programme at Chatham House would like to invite you to an event on 25 February 2015 ‘Refuge from Inhumanity? War Refugees at the Intersection of IHL and Refugee Law’ with Dr David Cantor (Refugee Law Initiative, University of London),  Jean-François Durieux (International Institute of Humanitarian Law) and Professor Françoise Hampson (University of Essex). The meeting will explore pressing legal and practical controversies surrounding the use of International Humanitarian Law to protect refugees fleeing from war.  The event, being held in partnership with the Refugee Law Initiative,  will take place from 17:30 to 19:00 on 25 February at Chatham House in St James’s Square, London, and will be followed by a drinks reception.  Attendance is free, but prior registration is required. For further details and to register see here.

2.  International Colloquium “Current Issues of Agricultural Law in a Global Perspective”, Scuola Superiore Sant’Anna Pisa, September 17-18, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. Those interested should submit a short CV and 400 word abstract to colloquium {at} sssup(.)it no later than April 3, 2015. For full details, including information about application processes, please see the official Call for Papers or visit here.

3.  Job Opening: Graduate Institute, Geneva, Assistant Professor in International Law. The Graduate Institute for International and Development Studies in Geneva invites applications for an assistant professorship in international law, with potential specializations in international economic law, the protection of human dignity, international environmental law, or transnational law. The advertisement is here. The deadline for applications is 15 February 2015. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Published on January 30, 2015        Author: 

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

Published on January 29, 2015        Author: 

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

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25 Years of EJIL: A Retrospective

Published on January 26, 2015        Author: 

EJILOxford University Press has assembled an online exhibition to commemorate EJIL’s 25th anniversary. The collection includes the following exhibits:

  • The Main Exhibition: A Retrospective anniversary collection of articles published in EJIL over the past 25 years, featuring two articles per volume.
  • Special exhibit 1: An aggregation into one chronological file all the Tables of Contents of EJIL.
  • Special exhibit 2: An aggregation into one file of all the Editorials reflecting different styles and different sensibilities of various editors.
  • Special exhibit 3: Book Review Editor, Isabel Feichtner, has selected 25 book reviews, one for each year, memorable for the book or for the Review.
  • Special exhibit 4: All the Roaming Charges photographs have been aggregated into one file.
  • Special exhibit 5: All the Last Page Poems have been aggregated into one file.
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