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Al-Saadoon and the Duty to Investigate

Published on September 16, 2016        Author: 

On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. Read the rest of this entry…

 
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English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Published on September 14, 2016        Author: 

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

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Announcements: Symposium on the Sovereignty Dispute over the Falklands (Malvinas); CfS CILJ Volume 6; Arab Legal Forum – Challenging UN Sanctions ‎Before Domestic Courts

Published on September 11, 2016        Author: 

1. Symposium on the Sovereignty Dispute over the Falklands (Malvinas). This Symposium will be held at the Stayokay Hotel, Maastricht, on 7 October 2016. For further information and registration please see here. The Symposium is open to students and public at large.

2. Call for Submissions: CILJ Volume 6. The Editorial Board of the Cambridge International Law Journal (CILJ) is pleased to invite submissions for its sixth volume. The CILJ is a double-blind, peer-reviewed journal run by members of the postgraduate community at the Cambridge University Law Faculty. The CILJ is the successor journal to the Cambridge Journal of International and Comparative Law and is now published by Edward Elgar Publishing. The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law and EU law. All submissions are subject to double-blind peer review by our Editorial Board. In addition, all long articles are sent to our Academic Review Board, which consists of distinguished international law scholars and practitioners. The deadline for submissions is 28 October 2016 at 11.59 p.m. Further details can be found here

3. Arab Legal Forum Event on Challenging UN Sanctions ‎Before Domestic Courts. On Thursday 6 October 2016 at 6.30 pm the Arab Legal Forum is holding a panel discussion titled “Challenging United Nations Economic Sanctions before Domestic Courts” at the offices of Freshfields Bruckhaus Deringer, London. Panelists will include Judge Kimberley Prost (former UN ombudsperson for Al Qaeda Sanctions), Maya Lester QC (Brick Court Chambers) and Antonios Tzanakapoulos (Oxford). The panel will discuss the recent decision of the European Court of Human Rights in Al Dulimi and Montana Inc vs. Switzerland and its implications. Information on the event and registration can be found here.

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European Union 2: A Revolutionary Response to a British Coup d’état

Published on September 8, 2016        Author: 

The antipathy towards the European Union reflected in the British Referendum of 23 June 2016 is shared by many people across the whole of Europe. As Jürgen Habermas has said: “the British vote also reflects some of the general state of crisis in the EU and its member states”. (Die Zeit, July 12, 2016.)

An unexpected moment of further European disintegration offers a unique opportunity to make the unloved EU into what it could be. The citizens of Europe should force the governments of Europe to make possible a European Union 2, an enterprise that a majority of British people might support, even if they were still not able to love it.

We are living through a time of exceptional disorder and danger throughout the world. A very bad time is a good time to plan a better future. In the dark days of the Second World War, governments were already planning new social security systems, new education systems, new public health systems, a new world financial system, and a United Nations to replace the League of Nations.

There are realistic principles underlying a project of European Union. It can be a close partnership of independent nations pursuing their unique and precious destinies, but seeking also the huge gains that come from acting together to serve a common interest. Their national interest contains also the common interest that they share.

Such a partnership is a sharing of the power of 500 million people. We have a common interest in responding effectively to a world that threatens our survival and prosperity, politically and economically and culturally, and even our physical survival.

But we also share a special responsibility to help to make the present chaotic and dangerous world into a better world. It is something that Europe owes to the world, a world that is very much the world that Europe made, for better and for worse. Read the rest of this entry…

Filed under: EJIL Analysis, European Union
 

Missing the Mark: Reprieve, ‘Kill Lists’ and Human Rights Advocacy

Published on September 6, 2016        Author: 

Deception, lies, murder, conspiracy. This is the stuff of crime novels. It is also the story spun in a report published earlier this year by Reprieve, a human rights charity active in the UK and the US. In its report, entitled ‘Britain’s Kill List’, Reprieve claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project:

On September 7th, 2015, Prime Minister David Cameron came to Parliament and announced a “new departure” for Britain, a policy of killing individuals the Security Services and the military do not like, people placed on a list of individuals who the UK (acting along with the US and others) have identified and systematically plan to kill. The mere admission that there is a Kill List certainly should, indeed, have been a “departure” for a country that prides itself on decency. Unfortunately, it was not a “new departure” at all, as we had been doing it secretly for more than a decade.

Reprieve alleges that the British Government has been complicit in preparing and executing a ‘kill list’ for years, that such a ‘kill list’ is incompatible with the rule of law and that the Prime Minister has deceived the public about Britain’s involvement in this ‘disturbing’ practice. These are serious allegations, which merit a response, even a belated one. All the more so, since on closer inspection they reveal an astonishing appetite for sensationalism and disregard for accuracy.

Who is deceiving Parliament and the public?

On 7 September 2015, former Prime Minister David Cameron announced to the House of Commons that the Royal Air Force carried out a drone strike on 21 August 2015 inside Syria against Reyaad Khan, a British national and member of ISIL. The strike killed Khan and two other members of ISIL. By declaring that the operation was a ‘new departure’ for Britain, Reprieve claims that the Prime Minister has deceived Parliament and the people (pp. 5 and 7), given that this was not the first occasion the UK has acted upon a ‘kill list’. Indeed, much of Reprieve’s report is preoccupied with demonstrating that the UK has contributed to a ‘kill list’ well before the Prime Minister made his announcement to Parliament. Read the rest of this entry…

 

Announcements: Vacancy at University of Southern Denmark; CfS UCL Journal of Law and Jurisprudence; CfP Manchester International Law Centre; Customary IHL Research Fellow Vacancy

Published on September 4, 2016        Author: 

1. Centre for War Studies at University of Southern Denmark Vacancy for Assistant Professor. The Centre for War Studies (CWS) at the University of Southern Denmark in Odense is currently advertising a post for Assistant Professor with starting date 1 November 2016 or soon thereafter. CWS is an interdisciplinary research centre rooted in the Departments of Political Science, Law and Cultural Studies. The successful applicant will be skilled at organizing policy and public outreach activities, including workshops, partner networks and various communication platforms. The teaching load will include contributions to the interdisciplinary master degree in “International Security and Law”. The successful candidate can be trained either in international law or international relations, but should research issues of relevance to both communities. This position has been created to advance both interdisciplinary research collaboration and outreach, and if after three years the initiative proves successful, the Departments of Political Science and Law will fund a tenured position, budgets allowing. For more information and the application form see the official job advert. The deadline for applications is 15 September 2016.

2. UCL Journal of Law and Jurisprudence Call for Submissions: Volume 6, Issue 1 (March 2017). The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2017. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 4 November 2016. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website. For any queries, please e-mail the academic editors. Read the rest of this entry…

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