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Should the Geneva Conventions Apply to the “War on Terror”

Published on September 5, 2011        Author: 

Last week I took part in a BBC radio programme (“Iconoclasts”) debating whether the Geneva Conventions should apply to the war against terrorism. The programme (which can be heard by clicking here) addressed three issues:

- Do the Geneva Conventions apply to ‘the war on terror’?
- What is the difference between ‘tough interrogation’ and torture?
- If the Geneva Conventions needs updating or replacing, what should the new rules be?

The Iconoclast in the programme was Charlie Wolf, an American radio presenter and commentator based in the UK. He was formerly communications director of Republicans Abroad UK. In the programme, he took a similar position to that  first taken by the Bush Administration after September 11, i.e. that the”war on terror” was not within the contemplation of the drafters of the Geneva Convention and that the terrorists did not deserve the protections of the Geneva Convention as they did not respect them. These issues were addressed by the US Supreme Court in 2006, in Hamdan v. Rumsfeld when it ruled that at least one provision of the Geneva Conventions, namely Common Article 3, applies to the US conflict with Al Qaeda. After that case, the Bush Administration changed its position and argued that it was engaged in a non-international armed conflict with Al Qaeda to which the rules of international humanitarian law applicable in non-international conflicts applied.  Of course, there is a broader question as to whether it can be properly argued that there is a global war on terror or even a global war with Al Qaeda which qualifies as an armed conflict under international law.

My co-panelists in the programme, in addition to Charlie Wolf, were Richard Norton-Taylor, the Guardian Newspaper’s Security Editor and Robert Barnidge Jr who teaches international law at the University of Reading in the UK.

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Francis Lieber Prize: Call for Submissions

Published on September 5, 2011        Author: 

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the authors of publications which the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays)  are eligible for consideration, as the prize is awarded to the best submission in each of these two categories.

Criteria:         Any work in the English language published during 2011 or whose publication is imminent at the time of submission may be nominated for this prize.  The re-submission of works which have already been considered for this prize is not allowed.  Entries may address such topics as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance.  Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit:       Competitors must be 35 years old or younger at the time of submission. They need not be members of the American Society of International Law.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Should a multi-authored submission win the competition, the cash component of the prize shall be divided, pro rata, between the authors.  Submissions from outside the United States are welcome.

Submission:     Submissions, including a letter or message of nomination, must be received by 16 January 2012.  Three copies of books must be submitted.  The electronic submission of articles is encouraged.  Authors may submit their own work.  Any work not already published must be accompanied by documentation indicating that it has been accepted for publication.  All submissions must include contact data (e‑mail, fax, phone, address).  The Prize Committee will acknowledge receipt of the submission by e‑mail.

Printed submissions must be sent to: Professor Iain Scobbie, Department of Law, School of Oriental and African Studies, Thornhaugh Street, Russell Square, London,   WC1H 0XG, United Kingdom

Electronic submissions must be sent to: is17{at}soas.ac.uk

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prizes consist of $500, a certificate of recognition, and a year’s membership of the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in March 2012.

In 2011, the winners were:

Tom Ruys, of the Catholic University of Leuven, for his monograph “Armed attack and Article 51 of the UN Charter” (Cambridge UP: 2010)

Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research, Harvard University, for her article “The dark sides of convergence: a pro-civilian critique of the extraterritorial application of human rights law in armed conflict”, 86 International Law Studies (US Naval War College) 349 (2010).

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Palmer Committee Report on the Mavi Marmara Incident

Published on September 2, 2011        Author: 

Yesterday the report of the UN Palmer Committee on the Mavi Marmara incident was leaded to the New York Times - the whole thing is available here. We hope to have more commentary on the report in the coming days; on the whole, it seems more favourable to Israel than the earlier Human Rights Council report. For now, however, I want to make two quick comments, and refer readers for background to Douglas Guilfoyle’s excellent recent piece in the British Yearbook.

First, although a very important finding in the report – a finding that Israel appreciates – is that the blockade of Gaza was legal as a matter of international law, that finding is based on a prior one that Israel most certainly will not like. Namely, as readers will recall, we discussed both on this blog and extensively in these two posts by Kevin Heller at OJ and the comments thereto that Israel’s blockade runs into a fundamental difficulty – that a maritime blockade, which involves the interdiction of the shipping on third states on the high seas, can only be effected in an IAC; it traditionally took place only in wars, and it necessarily involves a relinquishment by third states of their rights to the belligerents.

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How to Qualify the Armed Conflict in Libya?

Published on September 1, 2011        Author: 

A colleague and I are currently working on an article on the qualification or classification of armed conflicts in modern IHL. The ongoing developments in Libya bring out a specific difficulty in the process of qualification which we see as problems of state representation. An excerpt from the draft is provided below, and it is very much work in progress; footnotes are omitted, while comments are welcome. For some relevant links, see yesterday’s post by Iain, this post on recognition by Dapo, and this post of mine on what exactly internationalizes a non-international armed conflict, i.e. turns a NIAC into an IAC.

* * *

It may be easy to say that IACs are fought between states and statehood may be uncontested in a given case, but who gets to represent the state may turn out to be a very difficult issue. Not only is this question important for the initial qualification of a conflict, but it may also prove to be crucial for its requalification or transition from one type to another.

Consider, first, the invasion of Afghanistan by US-led coalition forces in 2001. The first representational difficulty we encounter in qualifying the conflict is that the Taliban regime was not recognized as the lawful government of Afghanistan by the states that launched the invasion or by the international community generally. That difficulty is however reasonably easy to deal with. It is precisely because historically the recognition of states and governments was a way to avoid the application of the law of war that the position in modern IHL is that it is de facto government and not recognition that matters. While they never controlled all of Afghanistan, at the time the Taliban were in effective power in most of the country, including the capital Kabul, and they had established institutions of government. Accordingly, there was an IAC between the US and other coalition states on one side and the state of Afghanistan, represented de facto by the Taliban regime, on the other, while there was also a NIAC running in parallel between the Taliban and the forces of the Northern Alliance.

But then the Taliban were defeated; their institutional rule over Afghanistan could not survive the joint coalition-Northern Alliance assault. Today we of course know that the defeat of the Taliban was far from complete, but it is still true to say that they lost the territorial control of the kind that denotes a government rather than simply an armed group. That vacuum was filled through a long transitional process, lasting from the end of 2001 up until 2003, which was approved by the UN Security Council and ultimately resulted in the establishment of a new Afghan government. The new government not only consented to the presence of international forces in Afghanistan, but together with the international forces continued to fight the growing Taliban insurgency. The question thus is whether and at what point the conflict transitioned from a mixed IAC/NIAC to a NIAC pure and simple, i.e. at what point the Taliban lost the capacity to represent the state of Afghanistan, and accordingly lost belligerent rights vis-à-vis third states intervening in Afghanistan.

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Operationalising the Law of Armed Conflict for Dissident Forces in Libya.

Published on August 31, 2011        Author: 

As the conflict in Libya appears to be drawing to a close, more allegations are surfacing that war crimes have been committed, and fears have been expressed that reprisals may occur.  The allegations made against the Qadhafi forces of torture and wilful killing (see here and here) are grave, but a Human Rights Watch report that alleges that Libyan dissident forces have unjustifiably damaged property, beaten individuals, and looted hospitals, homes and shops, is also disconcerting.

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability. Read the rest of this entry…

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Al-Skeini and Al-Jedda in Strasbourg

Published on August 29, 2011        Author: 

I’ve posted on SSRN an article which will be published in the EJIL next year on Al-Skeini and Al-Jedda before the European Court of Human Rights. The pre-print draft will be available on SSRN until the article comes out in the Journal. The abstract is below, and comments are welcome, as always.

The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.

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When (Not) to Write a Book Review?

Published on August 24, 2011        Author: 

Consider the following hypo:

Let’s say I accept the request from a journal to review a particular book. I know the author, I might consider him a friend, but he is hardly an intimate (I would say there is/should be an absolute ban at least on reviewing books by one’s close personal friends and one’s departmental colleagues; this hypothetical person is neither). Having read the book, however, I think it’s positively awful, with few if any redeeming qualities. If I write the review, be polite but honest and say what I mean it is likely that I will lose or offend a friend. If I blunt my remarks and write something anodyne, I will have kept the friend but I will have failed my professional duty to give the audience my full and honest opinion.

Would it then be ethical for me to tell the journal that I’ve decided not to write the review at all, and renege on my previous commitment? In other words, is it right to have a policy whereby I refuse point-blank to write a review when there is a real conflict of interest, but at the same time write reviews, but only (honest) positive/mildly critical reviews, for people who I’m on friendly terms with? Or should I simply have a policy not to write reviews at all for books by people who I’m friends with – a commitment which obviously gets harder as one’s circle of colleagues expands?

Comments by readers most welcome.

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President Obama Creates US Atrocities Prevention Board

Published on August 22, 2011        Author: 

Earlier this month, US President Barrack Obama directed the National Security Advisor to create an Atrocities Prevention Board which will be tasked with co-ordinating the US government’s policies on the prevention of mass atrocities and genocide. In addition, the President also launced a US interagency review which will, inter alia, develop the membership, mandate and structure of the Atrocities Prevention Board but which will also identify:

steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to:  conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.

In a Presidential Study Directive on Mass Atrocities, issued on 4 August, the President stated that:

Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.

Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods.  America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide.  Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed.  By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing.  The actions that can be taken are many    they range from economic to diplomatic interventions, and from non combat military actions to outright intervention.  But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide.  This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

The work of this Review and Board will be of great interest to those academics working on prevention of genocide and other international crimes. In recent years, there has been renewed focus on the question of prevention of mass atrocity. Indeed, the Oxford Institute for Ethics, Law and Armed Conflict (of which I am Co-Director) is engaged in a project on “Prevention and Responsibility to Protect” which is looking at these very questions. The project is led by my colleague, Prof. Jennifer Welsh.

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The Iranian Response to the UK Riots

Published on August 20, 2011        Author: 

Earlier this week, Bill Schabas had a very interesting post considering whether the recent riots in the UK amounted to crimes against humanity. He reflects on the Rome Statute’s requirement for a “State or organizational policy”, on how complementarity would apply when persons are prosecuted for ordinary domestic crimes and on the gravity threshold applied by the ICC prosecutor. It is well worth a read.

Also worth a read is the response of the Iranian President Mahmoud Ahmadinejad to the riots in the UK. This response was published in the Guardian over a week ago. Here are some extracts.

Having already offered to send an expert team to investigate human rights abuses amid the riots, the Iranian regime has gone one step further and called on the UN security council to intervene over the British government’s handling of the unrest rocking the country.

Speaking to reporters after a cabinet meeting on Wednesday, Iran’s president, Mahmoud Ahmadinejad, condemned the British government for its “violent suppression” of the protesters and called for an end to what he described as the “killing and brutal beating” of “the opposition” angry with the government’s financial policies.

“The real opposition are the people who are beaten up and killed on the streets of London, those whose voices are not heard by anyone,” Iran’s Irna state news agency quoted Ahmadinejad as saying.

The foreign ministry, went so far as to issue a statement advising against any unnecessary travel to the UK.

On Tuesday night, conservative websites sympathetic to the Islamic regime called on the Iranian government to offer refuge in its embassy in London to “UK protesters in need of protection”.

In the aftermath of Iran’s disputed presidential election in 2009, some European embassies in Tehran opened their doors to opposition protesters.

Iranian officials infuriated by the UK’s condemnation of Iran’s human rights violations in recent years, have found a unique opportunity with recent events to get back at the British government by criticising the police force for “exercising violence”.

… Ahmadinejad criticised the UN security council for remaining silent over the riots in Britain. “What else should happen for the security council to react and condemn one of its own members?”

He accused the UK authorities of portraying its opposition as a group of “looters, rioters and drug dealers”, adding: “Does Britain have this extent of drug dealers? If this is the case, they should be tried and UN should build walls surrounding their country.”

… He asked Britain to listen to the demands of its people and criticised human rights organisations for remaining silent over the violence used against British protesters.

Wonderful isn’t it?

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Greek Rescue – Act II

Published on August 12, 2011        Author: 

Michael Waibel is a British Academy Postdoctoral Fellow at the University of Cambridge.

After losing a disastrous war to the Ottoman Empire in 1898, Greece was unable to service its existing debt or to pay an indemnity. The major European powers, alongside private bondholders pushed for the establishment of an international commission of financial control. Greece reluctantly agreed. The commission, consisting of representatives appointed by Austria-Hungary, Italy, Germany, France, Russia, and Britain asserted direct control over the main sources of Greek public revenue to ensure their debt was serviced. They also imposed other limits on Greek fiscal autonomy such as control over public borrowing and the money supply.

Fast-forward 113 years. Greece is at the epicentre of yet another sovereign debt crisis. On May 2010, Eurozone governments and the International Monetary Fund, in Act I of the newest Greek debt crisis, devised a 110 billion € ad hoc assistance package to prevent a possible default by Greece, but it failed convince financial markets. By covering the Greek wound with one insufficient plaster after another for the past 18 months, the Eurozone doctors have allowed the contagion to spread to major Eurozone economies, such as Spain and Italy. Policymakers have been fighting a rearguard action to get ahead of an increasingly systemic debt crisis that threatens Europe’s decade-old single currency itself.

On 21 July 2011, in Act II of the Greek Debt crisis, the European Council proposed emergency measures to shore up financial stability in the Euro area. These measures include additional financing of more than 100 billion € for Greece, lengthening of maturities and reduction in interest rates to about 3.5 percent on existing programmes for Greece, Ireland and Portugal, plus technical assistance on measures to increase competitiveness and structural reforms designed to boost economic growth.

Eurozone leaders also called upon the private sector to contribute, on a voluntary and exceptional basis, to restoring Greek debt sustainability by swapping Greek bonds maturing between 2012 and 2020. Given the implicit threat of a Greek default, it is doubtful whether the exchange is free from elements of coercion – an important factor for the rating agencies assessing the country’s creditworthiness and for whether credit default swaps, essentially insurance against sovereign defaults, will be triggered. If they are, large payment obligations by banks, insurance companies and others could be an additional channel for contagion.

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