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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.

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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.

Read the rest of this entry…

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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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Filed under: EJIL Analysis, Iran
 

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.

Read the rest of this entry…

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Darryl Robinson on Self-Referrals: Is the International Criminal Court Really a Court of Last Resort?

Published on August 10, 2011        Author: 

The Journal of International Criminal Justice has recently published a very interesting article by Darryl Robinson titled “The Controversy over Territorial State Referrals and Reflections on ICL Discourse“. In the article, Darryl takes issue with those who criticise the practice by which the ICC Prosecutor has accepted referrals by States of situations occuring within that State. The first three situations before the ICC (the Democratic Rep. of Congo, Uganda and the Central African Republic) came to the Court in this way.  In particular Darryl disputes the account (for example by Bill Schabas) which suggests that this practice is an unforeseen invention developed after the Rome Statute came into force and perhaps even an undesirable perversion of Rome Statute. An undesirable perversion in that it allows States to manipulate the Court, wrongly focusses attention on non-State actors (rather than State agents) and allows States to foist on the ICC their obligations to prosecute international crimes. The abstract of his article is as follows:

“This article examines some of the prominent critiques concerning territorial state referrals to the ICC (also known as ‘self-referrals’), in order to test and refine the arguments. Despite wide acceptance of the drafting history claim that such referrals were not contemplated in the negotiation of the Statute, the records expressly show the opposite. Critiques about the potential for political manipulation are significant, but reflect a tension inherent to all international criminal justice efforts, regardless of trigger mechanism. The concern about ‘selective externalization’ of prosecutions is compelling; however, the legal and normative implications are more subtle and multi-faceted than is commonly assumed. The article also ventures some preliminary observations about international criminal law (ICL) discourse in general. One observation is that although discourse focuses on points of disagreement, the interpretive community also implicitly absorbs assumptions that limit and shape legal debate. For example, the widespread but incorrect assumption that territorial state referrals were ‘not contemplated’ by the drafters has eclipsed the actual drafting history, and has framed the present legal debate concerning the supposed ‘innovation’. A related observation concerns the prospect of assuming a single vision or model of the Court and allowing that model to dictate interpretation. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models of the Court may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.”

Darryl is a Canadian academic who has been intimately involved in the creation of the ICC, first as a Legal Officer in the Canadian Department of Foreign Affairs where he took part in the negotiations of the Rome Statute , and then as adviser to the ICC Prosecutor. He is also a friend of EJIL:Talk! and dia a great job blogging for us a the ICC Review Conference in Kampala in the summer of 2010 (see here). Given his background, Darryl is in as good a position to know, as anyone, whether self referrals were contemplated during the drafting of the Statute. I must say that I find his account to be compelling. Read the rest of this entry…

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UK Secret Overseas Torture Policy Leaked

Published on August 5, 2011        Author: 

Yesterday the Guardian published a top secret policy in place for the UK intelligence service since 2002 in several versions, dealing with their obtaining intelligence from detainees in the custody of foreign services who may be subject to mistreatment. The document is entitled ‘Agency Policy on Liason with Overseas Security and Intelligence Services in Relation to Detainees Who May Be Subject to Mistreatment,’ and is available with a few redactions here. The policy is sure to be prove controversial; as readers are aware, an inquiry is underway in the UK regarding complicity of UK services in overseas torture, while a judicial review case has recently been brought before the High Court (see Dapo’s recent post). The policy has been replacedy a more anodyne and public version in 2010 by the new coalition government.

Note that there is at least one more prior policy that is yet to be disclosed, which covered circumstances in which UK agents were ‘directly involved’ in the questioning of a detainee in the custody of a foreign intelligence service (see para. 2 of this policy). That other document may prove to be at least as interesting.

One may find a number of things morally objectionable upon reading the policy – and it’s precisely these parts of the document that caught the eyes of the press, e.g. the explicit reference to negative publicity for the UK as a factor in a balancing exercise in deciding whether or not to give permission for UK agents to provide information to the overseas agency even when there is a risk of mistreatment. But what I found striking about the old policy was how legalistic it was, i.e. how legal advice was used to put limits (or not) on UK participation in overseas interrogation. The new 2010 policy is very different – it seemingly quite deliberately omits any substantial legal discussion.

What is even more striking is how the policy concludes that human rights law as such does not apply to the issues at hand, although it then proceeds to import some human rights standards in the rules it sets out. Crucially, as Dapo pointed out in his earlier post and as I mentioned in a post from a couple of years ago, the key question here is the extraterritorial application of human rights treaties. Do, say, detainees in Pakistani custody questioned by a Pakistani intelligence officer who are being fed questions or information by UK agents have rights vis-a-vis the UK under the human rights treaties to which it is a party, or is it only Pakistan which has obligations in this situation?

In para. 21, the policy answers that question in the negative:

Under section 6 of the Human Rights Act 1998 it is unlawful for a public authority to commit torture , or to inflict inhuman or degrading treatment, as this would be incompatible with a Convention right [Article 3 ECHR]. However, in order for the Act to apply to a detainee held overseas, the UK would need to have “effective control” of the area in which the detainee is located, as the primary jurisdiction of the Act is territorial. The Act is therefore unlikely to apply in situations covered by this policy.

 

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The International Tribunal for the Law of the Sea Gets Busier

Published on August 2, 2011        Author: 

Last summer, I wrote a piece on this blog noting that the International Tribunal for the Law of the Sea (ITLOS), which had been underutilised for some years, was finally getting some substative cases to decide. Although ITLOS had decided a number of cases dealing with provisional release of vessels, and had handled requests for provisional measures in cases where the merits had been submitted to an arbitral tribunal, ITLOS had only decided one case on the merits before 2010. But in a 6 month period before the summer of 2010, 2 cases were submitted to ITLOS: one a maritime delimitation case between Bangladesh and Myanmar  and the other a request for an advisory opinion. Not a lot of activity but nonethess signifcant. Nearly one year on, the Court has had two further cases submitted to it!! Last month, Panama and Guinea Bissau agreed to submit a dispute to ITLOS relating to the detention of a vessel (see press release). In November last year, Saint Vincent and the Grenadines initiated a case against Spain at ITLOS also relating to detention of a vessel. Neither of these cases are provisional release cases (see here). That means four new cases in just over 18 months!

It is worth taking a moment to reflect on this new found confidence in ITLOS. In two of the new cases (the Bangladesh/Myanmar and the Panama/Guinea Bissau cases), the parties have agreed to refer to ITLOS, disputes which ordinarily were within the jurisdiction of arbitral tribunals under the dispute settlement system of the United Nations Convention on the Law of the Sea. In other words, rather than going to an arbitral tribunal with compulsory jurisdiction over the dispute, the parties have instead agreed to go to ITLOS.  This raises questions as to whyStates might choose a standing court over an arbitral tribunal and why the new found confidence in ITLOS (since the ICJ would also have been an option for these States). One might argue that there are a number of advantages of arbitration over judicial proceedings. For example, the parties have more influence over the composition of the tribunal, the tribunal will be much smaller - usually 5 arbitrators - than ITLOS which has 21 judges. Both these points perhaps make ITLOS’ decisions less predictable for parties. But are there advantages to resorting to ITLOS (or other standing judicial bodies) over arbitration? Clearly these four State think so.  I can think of two possible advantages. Decisions of judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of arbitral tribunals. While this may be true of the ICJ, I wonder about ITLOS. Also, developing countries may get financial assistance for using ITLOS. Are there other advantages?  Also, are there advantages of using ITLOS over the ICJ? I would be interested in readers’ comments on these issues.

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