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R v Mohammed Gul: Are You a Terrorist if You Support the Syrian Insurgency?

Published on March 14, 2012        Author: 

Dr Kimberley N. Trapp is lecturer in law at Newnham College, University of Cambridge.

In its recent decision in Regina v Mohammed Gul[1], the Court of Appeal held that there is nothing in international law which requires the broad definition of terrorism under the Terrorism Act 2000, as amended,[2] to be read so as to exclude acts of war committed during an armed conflict.

Mohammed Gul, then a law student at Queen Mary, had posted videos on YouTube that “showed attacks by Al Qaeda, the Taliban and other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq and Afghanistan, [and] the use of IEDs against Coalition forces […].”[3]  He was prosecuted for supporting terrorism as defined under Section 1 of the Terrorism Act, found guilty and sentenced to 5 years in prison.  The principal issue considered by the CA was whether the trial judge’s response to jury questions had been correct in law.  After having retired, the jury asked whether “an explosives attack on Coalition forces in Iraq is a terrorist attack” within the meaning of the Terrorism Act 2000. The judge told them that it was, and the Court of Appeal has agreed.  In this post, I want to take serious issue with that conclusion.

The Court of Appeal started by accepting that there is a customary international crime of terrorism (at least in times of peace) on the basis of the decision by the late Judge Cassese in the Appeals Chamber of the Special Tribunal for Lebanon 2011 Interlocutory Decision on the Applicable Law.  Let’s leave that controversy to one side – much has already been said on the Special Tribunal’s decision already. The question the CA then asked is whether “international law has developed so that an attack by insurgents on military forces of a government is not terrorism” – or otherwise put whether international law excludes lawful acts of war (as governed by IHL) from the definition of terrorism.  The reason this question needed asking is that, at least prima facie, “the definition [of terrorism] in Section 1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists.”[4]  The CA therefore needed to know whether there was any international law reason why the Act should be interpreted more narrowly.

The CA focused on customary international law as the source of a potential military exclusion from the definition of terrorism. It examined what it referred to as state practice (some of it in the form of treaty practice of the OIC and OAU, plus the criminal codes of Canada and Australia) and concluded – despite the fact that three out of the four sources examined exclude military conduct from the definition of terrorism – that the “necessary widespread and general state practice or the necessary opinio juris to that effect has not yet been established.” It is hard to see how the CA could have concluded otherwise given the limited practice canvassed.

But it is unclear how the CA jumped from its conclusion that customary international law doesn’t exclude acts of war from the definition of terrorism (accepting for argument’s sake that custom does indeed define terrorism as an international crime) to its conclusion that “there is nothing in international law which would exempt those engaged in attacks on the military during the course of an insurgency from the definition of terrorism.”  Perhaps the CA might have considered other sources of international law? Perhaps a treaty to which the UK is a party?  The Terrorist Bombing Convention is clearly applicable to the facts of the case and speaks directly to the issue of whether the bombing of military targets by insurgent groups in Iraq and Afghanistan amount to an act of terrorism under international law.

Read the rest of this entry…

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Venice Academy of Human Rights 2012

Published on March 13, 2012        Author: 

Venice Academy of Human Rights

The Venice Academy of Human Rights will take place from 9-18 July 2012. The theme of this year’s Academy is “The Limits of Human Rights” (http://www.eiuc.org/veniceacademy/).

Online registration is open until 1 May 2012.

Faculty of the Venice Academy 2012
Professor Philip Alston, NYU
Professor Seyla Benhabib, Yale
Assistant High Commissioner Erika Feller, UNHCR
Professor Martti Koskenniemi, Helsinki
Professor Friedrich Kratochwil, CEU/EUI
Professor Bruno Simma, Ann Arbor/Munich
Professor Henry Steiner, Harvard

Key Facts
Participants: Academics, practitioners and PhD/JSD students
Type of courses: Lectures, seminars and optional workshops
Number of hours: 21 hours of compulsory courses (plenum), 16 hours of elective and optional courses (smaller groups)
Location: Monastery of San Nicolò, Venice – Lido, Italy
Fees: 500 €

The Venice Academy of Human Rights is a center of excellence for human rights education, research and debate. It forms part of the European Inter-University Centre for Human Rights and Democratisation (EIUC). The Academy offers interdisciplinary thematic programmes open to academics, practitioners and doctoral students with an advanced knowledge of human rights.

A maximum of 55 participants is selected each year.

Participants attend morning lectures, afternoon seminars and workshops and can exchange views, ideas and arguments with leading international scholars and other experts. This includes the opportunity to present and discuss their own “work in progress” such as drafts of articles, chapters of doctoral theses, books and other projects.

At the end of the program, participants receive a Certificate of Attendance issued by the Venice Academy of Human Rights.

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Call for Papers: The ICC at 10

Published on March 13, 2012        Author: 

In 2012, the International Criminal Court (ICC) will celebrate the ten-year anniversary of its entry into force. The Grotius Centre is holding a conference to coincide with this anniversary. It will bring together scholars from a variety of disciplines and practitioners from within the broader international law community to reflect on the ICC as an institution, its jurisprudence, the impact of its activities and to critically assess future possibilities for the Court.

The conference organizers are currently seeking submissions for panel discussants. Interested participants should send a draft title and abstract of their proposal (500 words), written in English, together with a CV to pcj {at} cdh.leidenuniv(.)nl. Proposals are due no later than Monday, April 16, 2012. Submissions should be related to one of the conference themes, and should indicate under which theme their proposal is to be considered. Accepted submissions may be considered for publication in a volume with a leading international publisher.

More information about the conference is available here.

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Legality of Drone Strikes in Pakistan to be Tested in English Courts?

Published on March 13, 2012        Author: 

Yesterday, lawyers acting for the son of a man killed by a US drone in Pakistan issued legal proceedings in the English High Court against the UK Foreign Secretary claiming that the UK is acting unlawfully in providing assistance to the US drones program (see here and here). The allegation is that the General Communications Headquarters (“GCHQ”), a UK intelligence agencies under the control of the Foreign Secretary, provides information to the CIA on the whereabouts of alleged militants. According to the lawyers acting for the claimant:

“The legal challenge states that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.
As CIA and GCHQ employees, are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.
GCHQ employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic criminal law as secondary parties to murder and that any policy which involves passing locational intelligence to the CIA for use in drone strikes in Pakistan is unlawful.
Evidence suggests that drone strikes in Pakistan are being carried out in violation of international humanitarian law, because the individuals who are being targeted are not directly participating in hostilities and/or because the force used is neither necessary nor proportionate.
This suggests that there is also a significant risk that GCHQ officers may be guilty of conduct ancillary to crimes against humanity and/or war crimes, both of which are statutory offences under the International Criminal Court Act 2001″

To the extent that the claim raises issues of British complicity with violations of international law by the US, this case will be similar to those cases in which it is alleged that UK officials are complicit in torture committed by foreign States (see previous posts herehere and here). Claims that drone strikes amount to crimes against humanity seem a bit far fetched. Whether or not the drone strikes violate international humanitarian law and amount war crimes will depend on some of the issues raised in my post of last month on targeting practices employed in drones strikes in Pakistan.  Readers will no doubt spot the contradiction in the present claim. It is said that not only is there no international armed conflict in Pakistan, there is actually no armed conflict of any sort. Nonetheless it is claimed that the drone strikes are carried out in violation of international humanitarian law and that there is a significant risk of UK personnel being guilty of war crimes. Without an armed conflict, IHL does not apply and there can be no war crimes!

The first part of the claim seems to take a completely different approach to the claims made at the end. The suggestion there is that even if the drone strikes are not themselves contrary to international law, the involvement of CIA and GCHQ personnel in those strikes is unlawful because those persons do not have combatants immunity under international law. First of all, it should be pointed out that absence of combatants immunity for acts in war  does not mean that a person who does those acts is acting in violation of international law (as long as the acts don’t violate IHL). Read the rest of this entry…

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Judging Judges: A Statistical Exercise

Published on March 12, 2012        Author: 

Andrea Bianchi’s excellent, thoughtful post on the perceptions of certainty in response to the ICJ’s Germany v. Italy judgment provokes many questions. What, exactly, created the certainty both within the Court and outside it as to how the Court would decide the case? Is it the determinacy of the law, as the positivists among us would argue? Or is it the structural biases of the Court as an institution and of its individual judges that we were out of experience simply able to assess and predict, as would be the view of the more critically minded? But I was particularly struck by Professor Bianchi’s praise of Judge Cancado Trindade, who found himself in the smallest of minorities, dissenting alone on the jus cogens not overriding immunity point:

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he [sits] and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

One could take issue with some of Bianchi’s points. Today’s ICJ is perhaps not as devoid of human rights-minded judges as it once was. And while challenging orthodoxy is a good thing, a judge who allows himself to become isolated within his court is perhaps not pursuing the wisest or the most effective course of action, even assuming the general validity of his own worldview. But I am really interested here in a broader and more fundamental point: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? If legal argument generally and judging specifically is an exercise in persuasion, what is the audience that the judge should seek to persuade and in what manner? Is the judge to be the harbinger of utopia, writing for those who “want to believe in the redeeming force of human rights and universal justice for a better world,” or a realistic, pragmatic apologist of the world as it stands today? Your mileage, I imagine, may vary.

These broader questions aside, perhaps it would be useful – or at least interesting – to evaluate the performance so far of Judge Cancado Trindade, now sitting on the ICJ for some three years. I wish to do so through a rather trivial statistical exercise, and leave it up to the readers to draw their own conclusions, if any. The table below was compiled by an excellent LL.M student of mine at Nottingham, Tilman Dralle, to whom I’m grateful for his assistance. The table is I think fairly self-explanatory:

  Read the rest of this entry…

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Citizenship and the Holder Speech on Targeted Killings

Published on March 8, 2012        Author: 

A couple of days ago the US Attorney General, Eric Holder, gave a major speech on the legal parameters of the US targeted killing policy (text of the speech; analysis by Bobby Chesney onLawfare and Deborah Pearlstein on Opinio Juris). Nothing terribly new here as a matter of international law, bearing in mind the previous speeches by Harold Koh and John Brennan. Targeted killings are still being justified via self-defense coupled with the unwilling or unable standard as a matter of the jus ad bellum, and as part of an armed conflict as a matter of the jus in bello. The analysis is still very rudimentary and avoids many complex issues, but that’s what one can expect from a speech as a opposed to a detailed legal memo. The applicability of human rights law is still denied or not addressed; ad bellum and in bello issues at times still conflated.

What is new in the speech is the standard that the Obama administration thinks applies to the killing of US nationals (e.g. Anwar Al-Awlaki) outside US territory under US constitutional law, specifically the due process clause of the Fifth Amendment:

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Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility

Published on March 2, 2012        Author: 

Francesco Messineo referred below to the incident in which Italian marines, embarked aboard an oil tanker to protect it, appear to have killed two Indian fishermen mistaking them for pirates.

There has been a lively debate about how best to manage armed security for vessels transiting the high-risk piracy area off Somalia. The two options usually advocated are: embarking military forces to act as a Vessel Protection Detachment (VPD); and private armed security guards (PASGs). The usual issues for discussion are questions of jurisdiction, immunity and state responsibility.

What follows is a preliminary sketch of the issues as I see them.

Vessel Protection Detachments

In any such fatal shooting episode the first question is which State has jurisdiction: Italy or India? The answer is, of course, both States do.

As Francesco pointed out, if this episode occurred on the high seas (as it appears to have done), it is governed by the Lotus Case. In Lotus the PCIJ found, unremarkably and by analogy with crimes that cross land borders, that an offence commenced on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B. A treaty law exception was later created for the masters of vessels in respect of crimes resulting from collision and incidents of navigation. In such cases a master can only be prosecuted by his state of nationality or license-issuing authority (UNCLOS, Art. 97). Otherwise the general principle stands. In this sense the principle of the “exclusive jurisdiction” on the flag State can mislead those unfamiliar with the law of the sea. It is not an absolute prohibition on concurrent jurisdiction.

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

I have surveyed the relevant State practice elsewhere. I will confine myself to observing that that comparable cases are usually resolved in favour of State immunity, but often not swiftly. The issue is complicated by the fact that the modern law is dominated by Status of Forces Agreements – treaties concluded in advance which (broadly) settle the questions of immunity for forces stationed abroad from local criminal jurisdiction. This is a situation where no such treaty applies so the applicable law is customary international law, and the relevant cases tend to be old. Nonetheless, my reading of them suggests State immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions (in the narrow sense of carrying out an authorised act in an unauthorised manner). Immunity is unlikely to be upheld where a State agent has abused their authority out of malice or for personal gain (though in such cases State responsibility will still apply e.g. Mallen). Otherwise, especially in cases of genuine mistake, immunity should generally be upheld.

Obviously, the State remains responsible for the official acts of its agents irrespective of the determination regarding immunity. The question therefore arises as to whether Italy is obliged to compensate the victims or their families. Read the rest of this entry…

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JICJ Special Issue on Aggression

Published on February 29, 2012        Author: 

Our friends at the Journal of International  Criminal Justice have let us know that their first issue of this year – the Journal’s tenth anniversary, sadly in the absence of Nino Cassese – is now out. The special issue is dedicated to aggression after Kampala, and was edited by Claus Kress and Philippa Webb. All of the articles are available on the Oxford Journals website.

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UN Human Rights Council Brings to an End the First Cycle for Universal Periodic Review

Published on February 27, 2012        Author: 

Today marks the beginning of the 19th session of the Human Rights Council, scheduled to run from February 27 to March 23, 2012. This session will also mark the official end of the first cycle of the Universal Periodic Review mechanism, which has seen all 193 member states of the UN undergo a review of their human rights record, creating a baseline for future reviews. The unofficial end of “UPR” (as it is known) happened in October 2011, but with the adoption of the last remaining reports at the 19th session, the international community is officially at a point where we can look back on the first run-through of this new mechanism and discuss changes for the second.

Universal periodic review was one of the proposals made in the lead-up to the World Summit of 2005, with the outcome of the World Summit confirming the creation of a standing Human Rights Council out of the ashes of the old part-time Commission on Human Rights (A/RES/60/1). The idea of the Council serving as a “chamber of peer review” to evaluate the fulfilment by all states of all their human rights obligations was a proposal backed by then UN Secretary-General Kofi Annan. Annan expanded on the idea in an explanatory note published in May 2005 (A/59/2005/Add.1) as an addendum to his “In Larger Freedom” report of March 2005 (A/59/2005). These reports helped focus the discussions taking place between states as they prepared for the World Summit of September 2005, although it was not until March 2006 when the UN General Assembly adopted a resolution specifically on the “Human Rights Council” (as the resolution is entitled), which confirmed that the Council would undertake a universal periodic review (as the mechanism had become known) (A/RES/60/251).

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Head of State Immunity is a Part of State Immunity: A Response to Jens Iverson

Published on February 27, 2012        Author: 

In a post here a couple of weeks ago Jens Iverson argues that “Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute.” He argues that although Article 98(1) of the ICC Statute instructs the Court not to proceed with “a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”, this provision does not apply to Head of State immunity. In his view, this is so because head of state immunity is not the same thing as either state immunity or diplomatic immunity. Jens’ basic point is that Art. 98 only covers the immunity of the State (and diplomatic immunity) and that the immunity of heads of States is something different from this. It is true that there are particular rules that apply to the immunity of the head of State and it is also correct that the scope of the immunity of the head of State (and indeed of other State officials) is different from the scope of the immunity of the State itself. However, it is incorrect to say that head of State is not an aspect of State immunity. In my view, it is also incorrect to suggest that the reference to State immunity in Article 98(1) does not include the immunity of the head of State or other state officials.

The immunity of the head of State (or other State officials) is granted not for the personal benefit of the head of State but is for the benefit of the State. This is why that immunity can be waived by the State. The immunity is one which belongs to the State, it is the right of the State, which is why the State is entitled to insist on compliance with the international law rules. When a State insists, in a diplomatic claim or in judicial proceedings before an international tribunal, that there has been a violation of the immunity of the head of State (or other State official), the State does not have to exhaust domestic remedies. This is because the State is seeking to enforce its own rights. This is because the State is seeking to enforce its own rights. No one suggested that the DR Congo should have first brought proceedings in Belgium before initiating the Arrest Warrant Case dealing with the immunity of its Foreign Minister. This is because the State was seeking to enforce its own rights. The immunity belongs to the State.

As Sangeeta Shah and I explain in an EJIL article, part of the reason for international law granting immunity to State officials from the jurisdiction of other States is because the State is a corporate body which must act through natural persons. To grant immunity to the State without providing for some immunity to State officials would completely defeat the immunity of the State itself. So, State immunity includes the immunity of its officials for acts performed in the course of their functions. This is immunity ratione materiae. Head of State immunity is immunity ratione personae but this variant of immunity is also conferred for the benefit of the State rather than that of the individual. In the Arrest Warrant Case, the ICJ stated with respect to the immunity ratione personae of the Foreign Minister:

“In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.” (para. 53)

The same is true of the head of State. His or her immunity is also for the benefit of the State and is in that sense merely a part of the immunity of the State. When Art. 98(1) refers to the obligations of a State with regard to State immunity of a person it must be taken as referring to all those immunities which to individuals as a result of their connection with a State. Thus it not only includes the immunity of all State officials ratione materiae (to the extent that they apply), consular immunity, immunity of special missions and all those immunities which apply ratione persone, including the immunity of the head of State.

If Jens position  – that head of State immunity is not part of State immunity – were correct, then we would be in the anomalous position that other State officials with immunity ratione personae could benefit from Article 98 but the Head of State could not. This would be a manifestly absurd result. Though of course if one takes the view of the ICC Pre-Trial Chamber in the Bashir Case (see comment here) no one benefits from Art. 98 and the drafters wasted their time in including it in the Statute. Another manifestly absurd position.

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