Joint Series on International Law and Armed Conflict: Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law

Published on September 11, 2015        Author: 

As noted earlier this week, EJIL:Talk! together with Lawfare and InterCross are running a joint series over the next few weeks on International Law and Armed Conflict. The latest post in the series, over at Lawfare, is by Joanna Harrington, (Professor of Law at the University of Alberta). She begins her post by noting that:MG0146cropped

“Complexities remain with respect to the interaction between the fields of international human rights law (IHRL) and international humanitarian law (IHL) in situations of armed conflict. Focusing on the human rights side of this interplay, there are questions about which human rights obligations apply, to what extent, and to whom, as well as questions about the role for international human rights monitoring bodies. Should the human rights bodies, for example, see their role as one of shaping the contours of IHL?

The words “human rights body” can easily be misread as if to treat all human rights bodies as being the same, with the same functions, and with the same effect or influence by virtue of being a “human rights body”. Included within this term are courts and commissions, committees and working groups, but from a Canada/U.S. perspective, there is interest in those human rights bodies that are not courts, since both countries cannot be subject to the European Court system, and nor have they accepted the jurisdiction of the Inter-American Court of Human Rights.

The Question of an Accountability Gap

Often these discussions begin by identifying a perceived accountability gap, drawing attention to the lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols. Having identified a gap, it is assumed that the gap must be filled. But there are times in international negotiations when gaps serve a purpose, perhaps when efforts to achieve agreement on a particular aspect or mechanism have failed.”

Read more at Lawfare

Print Friendly

Embedded Troops and the Use of Force in Syria: International and Domestic Law Questions

Published on September 11, 2015        Author: 

Editor’s Notes: This post was written before the announcement earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August. Commentary on that latest development will follow later.

As Rob McLaughlin noted in his post, UK military pilots, (as well as other UK military personnel), embedded with US and Canadian forces have taken part in air strikes in Syria against Islamic State (or ISIL) targets. It has also been reported that Australian pilots embedded with US forces are also due to start taking part in that campaign in Syria. In a written Ministerial Statement of 20 July, the UK Secretary of State for Defense confirmed that: “A small number of embedded UK pilots have carried out airstrikes in Syria against ISIL targets: none are currently involved in airstrikes.”

The involvement of UK military personnel in air strikes in Syria would ordinarily raise a number of international law questions: (i) Is the UK to be considered as using force in Syria, and, if so, what is the legal basis for such action?; (ii) is the UK to be regarded as a party to one or more of the armed conflicts taking place in Syria?; (iii) would the UK bear responsibility if any violations of international law, occur in the conduct of those air strikes? Although these are all important questions of international law, they have not been all that significant in this case. These questions have not been of great importance in the context of the air strikes conducted by embedded personnel largely because (in the case of the first two) they arise apart from the participation in those airstrikes, and because (in the case of the third), it has not been suggested that violations of international humanitarian law occurred in the conduct of those strikes.

In the UK, the significance of UK forces acting in Syria has arisen largely because of domestic political and legal considerations that I set out below. However, as will be seen those domestic legal considerations are intertwined with questions of international law and in particular, with the question whether the UK pilots who have acted in Syria are to be considered as part of the armed forces of the UK, or rather as part of the armed forces of the countries in whose forces they are embedded (the US or Canada). This question, which is important domestically, raises the international law question that Rob McLaughlin refers to: are the acts of those UK pilots attributable, as a matter of international law, to the UK, or attributable only to the US and Canada?

The UK and the Legality of the Use of Force in Syria

The UK has already indicated that it would be prepared to use force against Islamic State in Syria and it has been rumoured that the government would seek parliamentary approval for such a use of force this autumn, perhaps even, this month. In any case, even prior to the revelation that UK embedded personnel had acted in Syria, the UK had already engaged in acts which amount to a use of force in Syria as it is involved in training and equipping Syrian rebel forces Read the rest of this entry…

Print Friendly

State Responsibility for Third Country Deployed / Embedded Military Personnel Engaged in Armed Conflict

Published on September 10, 2015        Author: 

Editor’s Notes: This post was written before the announcements earlier this week that the UK had conducted a drone strike against members of Islamic State in Syria in August, and, that the Australian government plans to conduct airstrikes against Islamic State targets in Syria.

Recent reports indicate that both the UK and Australian governments have agreed to some of their military personnel being involved in kinetic operations against ISIS/Daesh targets inside Syria. This is despite, in the case of the UK, a Parliamentary ‘no-go’ in the form of a rejected 2013 motion on joining proposed US strikes against Assad regime forces in the wake of the use of chemical weapons. In Australia’s case, this authorisation appears to have come before a settled Australian view on the legality of kinetic operations against Daesh inside Syria (as opposed to inside Iraq). The report on Royal Australian Air Force UAV operators deploying to conduct operations with their host US unit was dated 14 August; but reports as late as 23 August, and even 27 August, seem to indicate that the Australian Government has yet to conclude its own legal analysis on engaging in combat operations inside Syria, subsequent to a US invitation:

‘Foreign Minister Julie Bishop insists Australia has backing under international law for extending RAAF air strikes into Syria because the area occupied by Islamic State is a lawless ungoverned space. “The legal basis for the air strikes in Syria has been laid out by the United States some time ago in a letter to the United Nations.”

“The Coalition has been invited into Iraq at the invitation of the Iraqi government. Under the principle of collective self-defence of Iraq and its people, the Coalition has extended self-defence into Syria because the border between Syria and Iraq is no longer governed; neither the Assad regime nor the Abadi regime in Iraq has control over that border,” Ms Bishop said on Sunday.

Ms Bishop said the Abbott government was drafting its own legal advice but it appeared the US, Canada and Middle Eastern countries were satisfied the Syrian air strikes were part of the “collective self-defence of Iraq and the Iraqi people”.’

In a fascinating aside, the Australian Prime Minister was recently quoted as saying “when they [IS] don’t respect the border [between Syria and Iraq], why should we?” Good question; I think it has something to do with the rule of law and being a law abiding international citizen, and the answer perhaps saying more about us than about them. But I digress. These two reports indicate an interesting issue: How does law deal with the assignment or loan of military personnel to another State (sometimes called Third Country Deployments – TCDs), when that assignment is accompanied by what appears to be an acceptance that these TCD personnel may engage in armed conflict inside yet a different State, but in circumstances where the sending or parent State is yet to come to the necessary legal conclusions to support that authorisation? Read the rest of this entry…

Print Friendly

Transatlantic Workshop on International Law and Armed Conflict: Introduction to a Joint Blog Series

Published on September 9, 2015        Author: 

Over the next few weeks, three blog –  Lawfare, InterCross (the blog of the ICRC) and EJIL:Talk! – will host a joint blog symposium on International Law and Armed Conflict. The series will feature posts by some of the participants at the Third Transatlantic Workshop on International Law and Armed Conflict, which was held at the University of Oxford this summer. As with previous years, the Transatlantic Workshop brought together senior government officials, senior military lawyers and leading academics from the United Kingdom, United States, Canada, Israel and Switzerland. The two day workshop focuses each year on a range of critical issues in the law of armed conflict. This summer, there was a particular focus at the workshop on the judicial application of international humanitarian law, with sessions dedicated to the application of the law of armed conflict by human rights tribunals; international criminal tribunals; and by national courts. In addition, the workshop also engaged in discussions on direct participation in hostilities; humanitarian access in armed conflict; and foreign intervention in non-international armed conflicts.

The first post in the series – “Direct Participation in Hostilities- What are the Issues and Where are the Controversies?” – by Marco Sassoli (University of Geneva) is now available on InterCross. In his concluding paragraph he argues that:sassoli_marco220

” . . . it is this preliminary question whether and in which circumstances someone who is not a combatant may be targeted even while not DPH [taking a direct part in hostilities] that is at the heart of the controversies surrounding the ICRC DPH Guidance, rather than the question of what conduct actually constitutes direct participation. On this latter question the Guidance has suggested a definition. Today several experts and officials criticize some aspects of this definition. Experts representing militaries are however mostly obsessed by – and object to – first, the application, by the ICRC, of the principle of military necessity to the targeting of individuals directly participating in hostilities and second, by what they refer to as the ‘revolving door’ phenomenon. That a civilian regains protection once s/he no longer directly participates, regardless of whether s/he may possibly directly participate in the future, is however, an unavoidable result of the clear wording of Article 51(3) of Protocol I and of Art. 13(3) of Protocol II. If the fact of having directly participated in hostilities once or several times had the effect of turning civilians into combatants or members of armed groups, the crucial criteria relevant to determining whether an individual is a member of an armed group – belonging, responsibility and command – would become irrelevant. From a pragmatic point of view, I wonder how a soldier confronted with a civilian not directly participating can be expected to know that the individual did previously engage in direct participation and/or is likely to do so again. To make such speculations the basis for decisions over life or death is dangerous, including for the great majority of harmless civilians.”

Read the rest of this entry…

Print Friendly

In this Issue

Published on September 8, 2015        Author: 

This issue of EJIL offers another rich and varied menu of first-class international law scholarship. The issue opens with an important article by Bernard Hoekman and Petros Mavroidis, who make the case for reconsidering current WTO policy on plurilateral agreements. Weighing up their pros and cons, they conclude that such agreements offer an important mechanism, as an alternative to preferential trade agreements, for subsets of WTO members to move forward on issues of common concern. The second article in the issue, by Kirsty Gover, tackles the complexities of indigenous-state relationships in western liberal settler states, presenting a compelling theoretical analysis of the relationship between constitutional rights protection in those states and their obligations under on the UN Declaration on the Rights of Indigenous Peoples. Next, Ilias Bantekas sheds light on a fascinating and under-examined aspect of international legal history: the influence of Ottoman law as a source of general principles of law in post-Ottoman territories, specifically in relation to the international law of cession. Turning from imperial history to present-day global governance, Oren Perez’s innovative and carefully researched article examines the tensions arising from the hybrid political-legal and epistemic authority exercised by transnational regulatory scientific institutions. Finally, Stefan Talmon offers an acute analysis of the International Court of Justice’s methodology for determining the existence, content and scope of the rules of customary international law that it applies. Having distinguished the circumstances in which the Court applies both inductive and various forms of deductive reasoning, Talmon argues that in fact the main methodology employed by the Court is simple assertion.

The third annual Junior Faculty Forum for International Law, held at Melbourne Law School in July 2014, once again attracted an exceptionally high calibre of scholarship, and we are delighted to publish three pieces that were originally presented at that event. In his article on internet freedom, Daniel Joyce draws on historical experience and contemporary debates to explore the argument that the internet may require human rights protection beyond freedom of expression. Ilias Plakokefalos examines the problem of over-determination in the law of state responsibility, suggesting that the growing complexity of inter-states relations necessitates a rethinking of the fundamentals of this area of law. And Guy Fiti Sinclair proposes a new analytic framework for understanding the growth of international organizations as intimately linked with the cultural processes of state formation, with both impelled by a dynamic of liberal reform that is at once internal and external to law.

Roaming Charges in this issue leaves today’s world, crossing generations and time to recall our intellectual heritage. We are publishing the title page of Hans Kelsen’s doctoral thesis, the subject of which may come as a surprise to many of our readers.

This issue sees the return of our regular series, Critical Review of International Governance, with an article by Sungjoon Cho and Thomas H. Lee on the problem of parallel adjudication of a single issue, by the same parties, but in different legal systems.

The Last Page features a poem in French by Ekaterina Yahyaoui Krivenko entitled ‘Schizophrénie du droit international’.

Print Friendly
Filed under: Editorials, EJIL

On My Way Out – Advice to Young Scholars I: Presenting a Paper in an International (and National) Conference

Published on September 8, 2015        Author: 

I first published this piece in an Editorial for the benefit of I.CON readers, but in the light of my recent experience at the ASIL Annual Meeting and in view of the forthcoming ESIL Annual Conference, EJIL readers might also find it of interest.

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some do’s and don’ts on different topics to younger scholars in the early phases of theirs. A lot of what I may say will appear to many as a statement of the obvious – but if it so appears, ask yourself why so many experienced and seasoned academics still fall into the trap.

So you have all been there – I must have ‘been there’ literally hundreds of times in the last 40 years. You are at some international conference. The most common format for presenting a paper is in a ‘panel’. Most typically there will be four panelists. Imagine you are one of them, maybe number four. There might be two ‘discussants’ or ‘commentators’. Again, most typically, each panelist will be allocated 15 to 20 minutes. The commentators are allocated 10 minutes each. If all goes according to plan, one hour and 20 minutes are allocated to the speakers. There is then a planned discussion; on a good day 25 minutes are allocated. In this, the most common of plans, a session beginning at, say, 9.00 is meant to last until 10.45, after which there is a coffee break of 15 minutes and then the next session is meant to begin. There is usually a ‘moderator’ or ‘chairperson’, or, if you are in Europe, a ‘president’ of the session.

Except that it never (ever) goes according to plan; here is what most commonly happens. The session often does not start on time. People are still shuffling in; the previous session finished late; the moderator’s introduction (which often consists of reading a Wikipedia-based bio of each of the ‘distinguished panelists’) goes on a little bit longer than planned. Now finally the first speaker gets the floor. You glance sideways across the table, your heart sinks. He or she has a sheaf that seems to be at least 20 pages long. In fact, she has the precious, original, paradigm-shifting paper she has written for the conference. How, you think to yourself, will the speaker get through all of that in her 15 minutes. (You are right; she will not). Your heart sinks even further. The speaker just said that he will try to be brief. That ‘try’ is ominous. It sounds great in Italian: ‘Cercherò di essere telegrafico’. More like stagecoach than telegraph you are thinking to yourself. She introduces the paper, she gets going. You note, again glancing sideways, that on each page some paragraphs are highlighted in yellow. Hope Read the rest of this entry…

Print Friendly

The Ballad of Google Spain

Published on September 7, 2015        Author: 

This poem was submitted for our Last Page, but given its wit and topicality I thought it should go on our First Page, namely in this Editorial. Kudos to Paul Bernal.

There was a case, called ‘Google Spain’
That caused us all no end of pain
Do we have a right to be forgotten?
Are Google’s profits a touch ill-gotten?

From over the pond came shouts of ‘Free Speech!’
So loud and so shrill they were almost a screech
From the ECJ came a bit of a gloat
‘We’ve got that Google by the throat!’

Said Google ‘If it’s games you play’
‘We’ll do that too, all night and day’
So they blocked and blocked, and told the press
‘It’s that evil court, we’re so distressed’

’Such censorship,’ they cried and cried
Though ‘twas themselves who did the deeds
They didn’t need to block the links
They were just engaging in hijinks

And many stood beside them proudly
Shouting ‘freedom’, oh so loudly
‘Google is our free-speech hero!’
‘We’ll fight with them, let’s be clear-oh!’

Others watched and raised their eyebrows
Listening wryly to these vows
And thought ‘is Google really pure?’
‘From what we’ve seen, we’re far less sure.’

For Google blocks all kinds of sites
‘Specially for those with copyright
And, you know, this isn’t funny,
When blocking things will make them money

This isn’t just about free speech
No matter how much Google preach
What matters here is really power
Is this truly Google’s hour?

Does Google have complete control
Or do the law courts have a role?
Time will tell – but on the way
Our privacy will have to pay…

Paul Bernal

Print Friendly

The Spitzenkandidaten Exercise One Year Later – The Unsung Hero

Published on September 7, 2015        Author: 

A year has gone by since the last elections to the European Parliament. One significant innovation in those elections was the Spitzenkandidaten exercise.

At the recent fifth edition of the ‘State of the Union’ organized by the European University Institute I conducted a public interview with Vice President of the European Commission Franz Timmermans.

Vice President Timmermans and I reached the point where we touched on that perennial topic of the still existing deficiencies of European democracy, resulting, inter alia, in widespread indifference as expressed in the low turnout to the last European elections – 2014 scored the lowest turnout ever.

Here is an edited transcript from the interview.

Weiler:  […]  Part of the problem is that when people go and vote for  the European Parliament, they are not really being offered a real political choice (the way, for example, yesterday they were offered in the United Kingdom – Labour or Conservative.), neither as regards the policies that will be pursued nor as regards who will govern them. So the delicate question is whether the Union in its processes needs to become overtly more political? Do you think the bold, even though limited, experiment of the last elections to the European Parliament with the ‘Spitzenkandidaten’, who delivered here in this space [the Salone dei cinquecento of the Palazzo Vecchio] one of the televised debates, should be pursued and perhaps deepened as one of the ways of addressing that problem of citizen disengagement?

Timmermans:  Yes, first of all … the core of the problem also refers to one of my favourite authors, Hannah Arendt, who … actually, if you bring back the essence of some of her writings [says] ‘ It is not the anger of the minorities that hates us, it is the indifference of the majority that makes things difficult’: and here we have a problem at the European level because institutions that are made to represent the people through direct democracy, or like the Commission through other means, are very often very, very far removed from the political perceptions of the citizens. There is no (not yet) European ‘demos’, European political focal point, and we will need the engagement at the national level to make sure that we will bring people closer to what is European decision-making; so the odd contradiction between … there are …. there is the ‘supernational’ level and there is the national level, and what we are doing is trying to take away from one, or trying to resist taking it away from one … We are in this together! The only way forward is for national governments and leaders to take the responsibility for the European project, and stop blaming Europe for everything that goes wrong and taking credit for everything that goes right; and we at the European level should indeed, I think, be more focused towards making our institutions more political.

I was myself sceptical of the ‘Spitzenkandidaten’ idea, right?  I criticized it publicly several times and I am happy to admit it here today… I was wrong! Because of the Spitzenkandidaten idea, we now have a President of the Commission who is not appointed by consensus in the European Council, but who was appointed and elected by the European Parliament, by a political process. The European Council had to accept that political process; it makes the President of the European Commission far more independent than I have seen in the past. And Jean-Claude Juncker is a political leader who takes this very seriously indeed, and you can see this in the dynamic between the Commission and the European Parliament, between the Commission and the European Council … Let me just refer to what Jean-Claude said about migration;  this was not consensual language as far as the European Council is concerned.  He took his position in a political way; he took his leadership role in a very straightforward way and gave us a leadership role in the migration debate.

Weiler: Ladies and gentlemen, it is not every day that you sit next to a politician who is willing to say ‘I was wrong!’

Read the rest of this entry…

Print Friendly

New Issue of EJIL (Vol. 26: No. 2) Out Tomorrow

Published on September 7, 2015        Author: 

The latest issue of the European Journal of International Law will be published tomorrow. Beginning today, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial in the upcoming issue. Here is the Table of Contents for this new issue:



Bernard M. Hoekman and Petros C. Mavroidis, WTO ‘à la carte’ or ‘menu du jour’? Assessing the Case for More Plurilateral Agreements [full text available without subscription]

Kirsty Gover, Settler-­‐state Political Theory, ‘CANZUS’ and the UN Declaration on the Rights of Indigenous Peoples

Ilias Bantekas, Land Rights in Nineteenth-Century Ottoman State Succession Treaties

Oren Perez, The Hybrid Legal-­‐Scientific Dynamic of Transnational Scientific Institutions

Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion [full text available without subscription]

New Voices: A Selection from the Third Annual Junior Faculty Forum for International Law

Guy Fiti Sinclair, State Formation, Liberal Reform and the Growth of International Organizations

Ilias Plakokefalos, Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

Daniel Joyce, Internet Freedom and Human Rights Read the rest of this entry…

Print Friendly

Announcements: 14th Annual Colloquium of the IUCN Academy of Environmental Law; University of Luxembourg conference on ‘the European Union as an Actor in International Economic Law’; 11th Annual Conference of the European Society of International Law

Published on September 5, 2015        Author: 

1. 14th Annual Colloquium of the IUCN Academy of Environmental Law. PluriCourts, Center of Excellence for the Study of the Legitimacy of International Courts and Tribunals at the University of Oslo, will host the 14th Annual Colloquium of the IUCN Academy of Environmental Law from 20-25 June 2016. For further information, see here. The theme of the Colloquium is “The Environment in Court – Environmental protection in national and international courts, tribunals, and compliance mechanisms”.

In the context of the Sustainable Developments Goals, Principle 10 of the Rio Declaration, as well as the Aarhus Convention, the idea of strengthening an environmental rule of law through access to justice has gathered considerable momentum. This Colloquium seeks to address both procedural and substantive aspects of environmental adjudication, in national, regional and international courts and tribunals, as well as non-compliance mechanisms of multilateral environmental treaties.

2. University of Luxembourg conference  on ‘the European Union as an Actor in International Economic Law’. On 1-2 October 2015, the University of Luxembourg, in cooperation with the T.M.C. Asser Instituut and with the support of the Fonds National de la Recherche Luxembourg, will be hosting a conference on ‘the European Union as an Actor in International Economic Law’. Read the rest of this entry…

Print Friendly
Filed under: Announcements and Events