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Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 

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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

Read the rest of this entry…

 

The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part II

Published on November 7, 2013        Author: 

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In this second of two posts I intend to continue the analysis of the extraterritorial seizure of individuals under international law, with a particular focus upon the recent arrest, detention and now trial of the al-Qaida leader al-Liby by the United States, who was wanted in connection with the bombings of the US embassies in Kenya and Tanzania in 1998. In the previous post I addressed the prescriptive jurisdiction of the US over these offences and, noting that its enforcement was territorially limited, looked at two possibilities as to how enforcement may occur; the consent of the Libyan authorities and in self-defence. While the existence of the former would have justified the entering of Libyan territory, question marks still existed in connection with al-Liby’s human rights in such operations. This issue will be addressed in this post. By contrast, while it is at least possible that extraterritorial seizures could be justified as self-defence, the US has thus far failed to demonstrate that the Libyan authorities were unable or unwilling to apprehend and hand-over al-Liby to the US, instead basing the operation broadly upon the ‘laws of war’.  As such, whether this branch of the law permits such operations will be addressed first.

Arrest and detention as part of an armed conflict

Assuming here for the sake of argument that the US is in a state of war/armed conflict with al-Qaida, and similarly assuming for the sake of argument that given the absence of two state parties this is a non-international armed conflict per the ambiguous Hamdan judgment, the law of armed conflict says very little about powers of detention in such conflicts, as opposed to the rather extensive provision it makes for the issue (particularly in GCIII) in armed conflicts of an international nature.

It could be argued that there is a power of extrajudicial detention in non-international armed conflicts under customary international law. Indeed, this appears to be the view of the US and certain other states. Yet, the rules that do exist in the law of non-international armed conflicts governing detention are concerned with the general treatment and trial of individuals after they have been detained, as opposed to providing prior grounds for detention and thus ensuring that any deprivation of liberty is not of an arbitrary nature. Instead, such issues are left to the domestic law of the state where the non-international armed conflict is taking place and/or international human rights law. In this respect, regardless of whether the claim of the US in regards to its armed conflict with al-Qaida is well-founded or not, given the extraterritorial nature of the arrest and detention of al-Liby questions are raised as to whether, and if so how, international human rights law provides a form of regulation to the actions of the US. Read the rest of this entry…

 

The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

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Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…