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The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: A Blog Discussion

Published on December 14, 2016        Author: 

We are delighted to announce that, starting today and over the course of this week, EJIL:Talk! and Just Security are coordinating a blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The blog posts are as follows:

  • “The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction” –  Dapo Akande & Emanuela-Chiara Gillard – EJIL: Talk! and Just Security
  • “Humanitarian Access from an Armed Non-State Actor’s Perspective” – Annyssa Bellal – Just Security
  • “Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Some Comments on Arbitrarily Withholding Consent and the Status of the Guidance”  – Rogier Bartels –  Just Security
  • “Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent” – Cedric Ryngaert – EJIL: Talk!
  • “The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access” – Geoffrey Corn –  EJIL:Talk!

We thank all of the participants for their contributions, and we hope readers will enjoy the discussion.

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What Will a Trump Administration Mean for International Agreements with the United States?

Published on December 13, 2016        Author: 

On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.

Paris Agreement on Climate Change

On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board. Read the rest of this entry…

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Taking Stock of the Law on Targeting, Part I

Published on December 12, 2016        Author: 

Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.

One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.

Identifying the Legal Framework

The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate. Read the rest of this entry…

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Announcements: APPG on Drones Inquiry; CfP International Criminal Justice – Theory, Policy and Practice; New additions to UN Audiovisual Library of International Law; CfP Exploring the Human Element of the Oceans; New Blog, The Law of Nations; Berlin Potsdam Research Group Fellowships

Published on December 11, 2016        Author: 

1. APPG on Drones Inquiry. The APPG on Drones is launching a new inquiry into ‘The Use of Armed Drones: Working with Partners.’ The purpose of the inquiry is to analyse the emerging technologies of drones and the ways in which they are used when working with allies. The inquiry will build on the recent report of the Joint Committee on Human Rights. Inquiry panel members invite written submissions on all aspects of our Terms of Reference. From a legal perspective, inquiry members are particularly interested in: the applicable law to isolated uses of lethal force; the extraterritorial application of human rights law; the threshold for, and territorial scope of, NIACs; and legal issues arising out of increased interoperability and inter-state assistance.

2. Call for Papers – International Criminal Justice: Theory, Policy and Practice at the Socio-Legal Studies Association Annual Conference. The international criminal justice stream at the SLSA Annual Conference contains four panel sessions and invites submissions on all areas of substantive international criminal justice, whether on theory, policy or practice. The conference will take place at Newcastle University on 5 – 7 April 2017. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal. For an informal discussion please email Anna Marie Brennan at Anna.Marie.Brennan {at} liverpool.ac(.)uk. Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence. For further information see here.

3. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Daniel Bradlow on “International Law and International Financial Institutions” and Professor Mia Swart on “Reparations in International Criminal Law”.

4. Call for Papers – Exploring the Human Element of the Oceans: The Gender Implications of the Law of the Sea. The School of Law of the University of Milano-Bicocca is organizing a conference on “Exploring the human element of the oceans: the gender implications of the law of the sea” to be held on 25-26 May 2017 in Milano (Italy). The full Call for papers can be download here. Proposed papers should include an abstract of no more than 500 words and a CV with list of the publications by 31 January 2017. Notification of the selected papers will be made by 20 February 2017.

5. New Blog: The Law of Nations. Public and private international law and arbitration play an increasingly important role in the decisions of the English courts. From commercial cases to human rights claims, a huge range of public and private international law principles are now regularly applied by the English courts. The Law of Nations aims to provide timely analysis of English court decisions across the vast range of areas where international law issues arise. We seek to combine sharp analysis with lively commentary, perspectives from abroad, and the occasional guest feature and interview. We welcome all comments and suggestions.
6. Fellowships with the Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?“. The Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?“ invites applications for three Fellowships from 1 September 2017. Fellowships are for 12-24 months and the deadline for Applications is 31 January 2017. The Research Group examines the role of international law in a changing global order. Fellows will work at Humboldt University Berlin, although applicants are not expected to speak German. The Junior Fellowships are designed for applicants worldwide with a doctorate in international law or in international relations.  Applicants should have completed their PhD by 1 September 2017 and should not have pursued more than 2 years of postdoctoral research. For further information, including information on eligibility, please see here.
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The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

Published on December 9, 2016        Author: 

Overwhelming evidence demonstrates that UN peacekeepers are the source of a 2010 cholera outbreak that has infected nearly 800,000 people and killed more than 9,000 people. After refusing to apologize or provide redress to the individual victims for six years, the United Nations appears to be changing course. On December 1, UN Secretary-General Ban Ki-moon spoke to the General Assembly about the United Nations’ “new approach” to cholera in Haiti.

Ban’s remarks are notable both for what he said—and for what he did not. Ban finally apologized to the Haitian people. He outlined the steps the United Nations planned to take to combat cholera in Haiti, and to provide benefits, possibly including monetary compensation, to the individuals and communities that were most directly affected. Ban also spoke about the United Nations’ reputation: he urged member states to “seize this opportunity to address a tragedy that […] has damaged our reputation and global mission.” Now for the omission: Ban did not say that that the United Nations had a legal obligation to take any of these steps, even though the lawfulness of the United Nations’ conduct in connection with the cholera crisis in Haiti has been forcefully challenged.

It is these latter two points that I want to address. A couple of years ago, EJIL published an article of mine entitled Reputation and the Responsibility of International Organizations, which argued that international organizations have a strong incentive to cultivate and preserve reputations for being law-abiding. It drew on the cholera crisis in Haiti as a case study. Developments since then confirm the importance of reputation in motivating international organizations—and also highlight a crucial shortcoming of relying on reputation to keep such organizations in line. Read the rest of this entry…

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SOGI Mandate Passes Third Committee Hurdle

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn. Read the rest of this entry…

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How to Bridge the Gap? Corporate and Government Surveillance Examined at the UN

Published on December 7, 2016        Author: 

On 21 November, the UN General Assembly Third Committee adopted the draft resolution on the right to privacy in the digital age. This came at the same time the UK passed a law (the Investigatory Powers Act) which codified what are arguably the most extreme surveillance powers in the history of any western democracy.

This is the third time the UN General Assembly has adopted a resolution on the topic, and as it did in 2014, the UN has called on all states to review their surveillance legislation, policies, and practices “with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law”.

This comes at a time in which governments around the world are adopting laws that give wider surveillance powers to state security agencies, beyond what is permitted under existing human rights law. Just to name a few, Privacy International had documented this trend in a range of countries, including in China, Colombia, France, Kenya, the Netherlands, Pakistan, Poland, Switzerland, and the United Kingdom.

So, which part of effective implementation of human rights law do governments need explained? Read the rest of this entry…

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South Africa’s Withdrawal: A Lesson Learned?

Published on December 6, 2016        Author: 

In October 2016, South Africa formally notified the United Nations Secretary-General of its withdrawal from the Rome Statute (‘RS’) pursuant to article 127(1) thereof. In its reasons for so doing, the fact that it was placed under ‘conflicting international law obligations’ during President Al-Bashir’s visit to the country was particularly relevant. The importance of distinguishing ‘well-founded concerns’ from other reasons for withdrawal has been subsequently noted; this helps draw the appropriate lessons therefrom. In a previous post, it was argued that there is no such conflict. However, varying views on the matter should be duly considered, particularly since the cause, consequences or mere existence of conflicting obligations may constitute a well-founded concern. This will ensure that the focus remains on resolving the relevant issues. Consequently, the present contribution offers a divergent conclusion.

The Court’s Request for Arrest and Surrender: Conflicting Obligations(?)

Sudan is not a party to the RS, but the International Criminal Court (‘ICC’ or ‘the Court’) has jurisdiction over crimes allegedly committed therein by virtue of article 13(b) and the referral of the situation in Sudan by the Security Council (‘SC’) (SC Res 1593). An investigation and the issuance of two arrest warrants for President Al-Bashir in 2009 and 2010 followed (see here and here), each accompanied by a request to states parties for his arrest and surrender (see here and here). However, many states parties considered their compliance with the Court’s requests – as required by article 89(1) of the Rome Statute – problematic.

As a non-party, all states are obliged under customary international law to refrain from arresting Al-Bashir by virtue of his immunities ratione personae (South Africa was also allegedly obliged to do so as a result of other international law obligations, but these need not be discussed for present purposes). State parties have waived their officials’ immunities insofar as these otherwise ‘bar the Court from exercising its jurisdiction over such a person’ (article 27(2)), but the RS cannot bind non-party states. Thus, although this has at times been questioned, article 98(1) seems applicable: Read the rest of this entry…

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The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

Published on December 5, 2016        Author: 

On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).

A Legal Bombshell

The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).

Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…

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