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Wilmshurst (ed): International Law and the Classification of Conflicts

Published on August 20, 2012        Author: 

I am delighted to report that Oxford University Press have recently published International Law and the Classification of Conflicts which is edited by Elizabeth Wilmshurst and which I contributed a chapter to.

This book comprises contributions by leading experts in the field of international humanitarian law on the subject of the categorisation or classification of armed conflict. It is divided into two sections: the first aims to provide the reader with a sound understanding of the legal questions surrounding the classification of hostilities and its consequences; the second includes ten case studies that examine practice in respect of classification.

Understanding how classification operates in theory and practice is a precursor to identifying the relevant rules that govern parties to hostilities. With changing forms of armed conflict which may involve multi-national operations, transnational armed groups and organized criminal gangs, the need for clarity of the law is all-important. The case studies selected for analysis are Northern Ireland, DRC, Colombia, Afghanistan (from 2001), Gaza, South Ossetia, Iraq (from 2003), Lebanon (2006), the so-called war against Al-Qaeda, and future trends. The studies explore the legal consequences of classification particularly in respect of the use of force, detention in armed conflict, and the relationship between human rights law and international humanitarian law. The practice identified in the case studies allows the final chapter to draw conclusions as to the state of the law on classification.

My own chapter, “Classification of Armed Conflicts: Relevant Legal Concepts“, provides an overview of how and why international law classifies situations of violence for the purpose of application of international humanitarian law. The chapter examines the distinction between international and non-international armed conflicts as well as the distinction between armed conflicts and situations of violence that do not qualify as armed conflicts. The chapter examines the history of the distinction between the two categories of armed conflict, the consequences of the distinction and whether the distinction still has validity. The chapter discusses the meaning of the concepts of ‘international armed conflict’ and ‘non-international armed conflict’, including the legal standards by which such qualifications are to be made. Particular attention is paid to foreign intervention in non-international armed conflicts, extraterritorial hostilities by one State against a non-state armed group and conflicts in which multinational forces are engaged. I quoted extensively from that chapter in one of my previous posts on extraterritorial conflicts with non-State groups.

Unlike many edited books where authors write in isolation with little interaction among them, the process of writing this book involved genuine and repeated exchange of ideas. Read the rest of this entry…

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The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

Read the rest of this entry…

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Breaking: Ecuador Grants Asylum to Julian Assange

Published on August 16, 2012        Author: 

BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.

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Enter at Your Own Risk

Published on August 16, 2012        Author: 

Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.

The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:

[I]f—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.

The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.

Read the rest of this entry…

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Swiss Court Finds No Immunity for the Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity

Published on August 15, 2012        Author: 

Gabriella Citroni is Senior Researcher in International Law and Lecturer in International Human Rights Law at the University of Milano-Bicocca. Although she is Senior Legal Adviser for TRIAL, a Switzerland based NGO that filed the criminal complaint in the case discussed below, she has not been involved in this case.

On 25 July 2012 the Swiss Federal Criminal Court issued a decision (which is available, in French, here) whereby it denied the existence of immunity ratione materiae for a former Algerian Minister of Defence accused of war crimes. This decision revives the ongoing debate on the sensitive issue of immunity of State officials from foreign criminal jurisdiction and opens up for new perspectives for the application of the principle of universal jurisdiction. It also deals with other relevant matters related to the struggle against impunity.

On 19 October 2011, TRIAL, a non-governmental organization active in the field of human rights headquartered in Switzerland filed a criminal complaint against Mr. Khaled Nezzar, accusing him of war crimes committed during the Algerian civil war (1992-2000). On 19 and 20 October 2011, two individuals of Algerian origin enjoying the status of refugees in Switzerland (one of whom acquired Swiss nationality), also filed criminal complaints against Mr. Nezzar, alleging that they were subjected to torture in 1993.

Mr. Khaled Nezzar, a former general, was Chief of the Algerian Army in 1988, later promoted to Chief of Staff and subsequently appointed as Minister of Defence. During the same period he also was a member of the “High Council of State” (Haut Comité d’Etat, hereinafter “HCE”), which was a collegial body established on 14 January 1992 to replace the President. The HCE functioned until January 1994 and during this period it was entrusted with “all the powers attributed by the Constitution to the President of the Republic”.

When the criminal complaints were filed, Mr. Nezzar was staying in a hotel in Switzland while in transit through that country. Read the rest of this entry…

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Oil exploration around the Falklands (Malvinas)

Published on August 13, 2012        Author: 

In June, I looked at the longstanding sovereignty dispute over the Falklands Islands (Malvinas) on the occasion of the 30-year anniversary of the 1982 war. I revisit this topic today to examine the question of investor protection in areas where sovereignty is disputed, taking the Falklands (Malvinas) as an example. The promise of an oil boom in the South Atlantic has prompted several companies listed in London, including Falkland Oil and GasBorders and Southern PetroleumRockhopper, Desire Petroleum and Argos Resources, to survey the area. They obtained exploration licenses from the Falklands administration in 2011, which drew strong criticism from Argentina. Shareholders in these inherently risky ventures may wonder whether they have any legal protections should the sovereignty dispute intensify.

The sovereignty dispute adds an additional layer of uncertainty for the companies engaged in exploratory drilling and their shareholders, aside from the uncertainty on how much oil, if any, will ultimately be discovered. The listing prospectuses of the companies concerned all mention the pending sovereignty dispute as a risk factor, but likely underplayed its importance. For example, the Falkland Oil and Gas Prospectus contains the following disclaimer:

There may be other unforeseen matters such as disputes over borders. Investors will be  aware that the Falkland Islands were, in 1982, the subject of hostilities between the  United Kingdom and Argentina.

The Argentine Government has not relinquished all its claims in relation to the Falkland Islands. However, the position of the UK and Falkland Islands Governments is that the   United Kingdom has no doubt about its sovereignty over the Falkland Islands, South   Georgia and the South Sandwich Islands and the surrounding maritime areas. Her Majesty’s Government  remains fully committed to the offshore prospecting policy pursued by the Falkland Islands Government, as laid out in the Offshore Petroleum (Licensing) Regulations 2000. This policy is entirely consistent with Her Majesty’s sovereign rights over the Falkland Islands.

Do investments in the territorial sea of the Falklands (Malvinas) fall under the territorial scope of application of the UK’s BIT (or, for that matter, under the scope of Argentina’s BITs)? Read the rest of this entry…

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Amanda Perreau-Saussine RIP

Published on August 7, 2012        Author: 

Amanda Perreau-Saussine Ezcurra

Our colleague Amanda Perreau-Saussine, lecturer at the University of Cambridge, passed away last week. Even though she was one of the kindest and gentlest persons one could ever hope to meet, she was dealt a cruel hand by life, with her first husband Emile dying tragically a few years ago due to medical incompetence, only for her to get cancer a short time later. The funeral will take place in Cambridge on Friday; more details and a tribute from the Cambridge Faculty of Law can be found here. Our thoughts are with her friends and family.

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Filed under: EJIL Reports
 

Dublin, Karlsruhe and Luxembourg in dialogue

Published on August 6, 2012        Author: 

While financial markets have focused on Karlsruhe where the second challenge to the Eurozone rescue efforts in a year is currently pending, the Irish Supreme Court held on July 31 that Irish ratification of the Treaty establishing the European Stability Mechanism and the Fiscal Treaty was compatible with the Irish constitution.  The court referred two questions to the Court of Justice under the latter’s accelerated preliminary reference procedure due to the exceptional urgency of the case. Notwithstanding, the Supreme Court declined to enjoin the Irish ratification process while the case is pending before the Court of Justice. The Irish government ratified both treaties on August 1.

In contrast, the German Bundesverfassungsgericht bidded its time on a similar challenge to German ESM ratification. Ireland is on the frontline of the Eurozone crisis. The Economist, in departure from the deference it typically pays to court proceedings, called the German Constitutional Court ‘ scandalously slow’ . Ireland is one of three Eurozone countries with an EU-IMF financing package in place. Most of the support is provided by the European Financial Stability Facility that the ESM is designed to replace once it starts operating. The need to decide this significant case as a matter of urgency was evident to the Irish Supreme Court. It put seven judges on the appeal, super-fast-tracked the hearing, and reserved four days for the hearing.

Read the rest of this entry…

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More Human Rights Reforms Under Discussion

Published on August 4, 2012        Author: 

Readers interested in reform within the international human rights system, including the reform of the UN human rights treaty monitoring system previously discussed here, may be interested in yesterday’s announcement by the Inter-American Commission on Human Rights (IACHR), adding a regional dimension to discussions.

The IACHR serves as the focal point for human rights within what is touted as “the world’s oldest regional organization” – the Organization of American States (OAS). The OAS is a pan-American regional organization akin to the Council of Europe, supported by 35 states in the Western Hemisphere, and headquartered in Washington DC. The IACHR was created in 1959, and formally established in 1960, with a mandate to promote and protect human rights throughout the region. It is one of two organs of the inter-American human rights regime, the other being the Inter-American Court of Human Rights based in San José, Costa Rica. With functions similar to the UN treaty-monitoring bodies, and the old European Commission on Human Rights, the IACHR monitors the situation of human rights in the various OAS states, conducts on-site visits, handles individual complaints, and hosts several thematic rapporteurs. The Commission also brings cases to the Court, as was done in the old European human rights system prior to Protocol 11.

But all is not rosy at the IACHR, with a current docket of 8500 individual complaints currently pending before the seven-member part-time body. Financial resources have not kept up with the volume of complaints, and each commissioner also serves as a thematic rapporteur, with consequent duties and workload. Events within the Americas also add to the workload. In 2002, for example, the IACHR received 3783 complaints as a result of the banking measures adopted in Argentina, and further petitions were received in 2009 following the coup d’état in Honduras.

The IACHR has agreed to embark on an in-depth examination of its procedures and mechanisms. To this end it has, as of 3 August 2012, published its methodology document for what it calls its “2012 process of reform of its Rules of Procedure and of its institutional policies and practices” (with the Rules of Procedure last undergoing significant reform back in 2009). It is expected that consultation documents regarding the individual complaint procedure, precautionary measures, the monitoring function, and the promotion function, will be published on or before 25 August 2012, to be followed by a one-month period for comments from all users of the inter-American system. By the end of September, we should see an IACHR report to the OAS Permanent Council on possible reforms to the Rules, policies and practices of the IACHR, and in October, the IACHR promises to convene two hearings on strengthening measures to give key actors an opportunity for dialogue.

The webpage for the “Process for Strengthening the IACHR” can be found here.

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ECHR leaves Northern Rock shareholders out in the cold

Published on August 3, 2012        Author: 

On August 1, the European Court of Human Rights (ECtHR) dashed hopes of Northern Rock shareholders to obtain compensation from the UK for the collapse and nationalization of British bank Northern Rock. The Fourth Section of the ECtHR unanimously dismissed the case Dennis Grainger and others v. UK (Application No. 34940/10) as manifestly ill-founded and inadmissible. The decision has broader ramifications. It suggests that member countries of the European Convention of Human Rights (ECHR) have a wide margin of appreciation in setting macro-economic policy in general and in the resolution of banking and financial crises in particular. The ECtHR decision suggests that creditors and other interested parties will face an uphill struggle in challenging measures taken in the context of financial crisis resolution before the ECtHR and in obtaining compensation. It is an important decision at the intersection of international finance and human rights. Investors holding the debt of Eurozone governments will take note.

The court fully endorsed the holding and approach of the English courts. Like the English domestic courts, it found that the assumptions that  the valuer of Northern Rock shares was required to make pursuant to the Banking (Special Provisions) Act 2008 s.5 (4) did not violate the rights of shareholders under Article 1 of the First Additional Protocol.

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