magnify
Home Articles posted by Marko Milanovic

On Whether IHL Applies to Drone Strikes Outside ‘Areas of Active Hostilities’: A Response to Ryan Goodman

Published on October 5, 2017        Author: 

Over on Just Security, Ryan Goodman has an excellent post entitled Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community). In sum, Ryan argues that human rights activists have been too radical in their critique of US drone strike policy, as reflected in the Presidential Policy Guidance adopted during the Obama administration, and in the context of the Trump administration’s recent proposal to revise this standing policy and relax some of its requirements, especially with regard to the procedure for authorizing lethal strikes. In particular, Ryan argues that human rights activists have been portraying as clearly unlawful decisions which legally fall within the bounds of reasonable disagreement.

In that regard, Ryan argues – persuasively in my view – that the mere fact that a drone strike takes place outside an area of active hostilities under the PPG does not mean that the strike takes place outside armed conflict under IHL. The former, as Ryan correctly notes, is not even a legal term of art. I also agree with Ryan that some US positions that used to be regarded as novel or anomalous have become mainstream with time, in part through the acceptance of these positions by European and other states, by the ICRC and scholars – viz., for instance, the idea of ‘spillover’ NIACs (for more on the operation of this mainstreaming process see here; on spillover NIACs see here).

That said, Ryan in some respects significantly overstates his argument. Yes, states have accepted the idea that they can be engaged in an armed conflict with a terrorist group – but I would say that this really was never in doubt. What was in doubt is whether this NIAC can be global in scope, and this US position has not been mainstreamed – or at least I am unaware of any other state which agrees with it. What do I mean by this?

Read the rest of this entry…

 

So, Has This Ever Happened Before?

Published on September 19, 2017        Author: 

For the past week or so I’ve been enjoying the start of my sabbatical in New York, as a visiting professor at Columbia this semester. And for the past couple of days I’ve been enjoying – well, experiencing – the chaotic collapse of parts of the city during the UN General Assembly. And today I could enjoy – well, behold – the spectacle of the President of the United States threatening another UN member state with nuclear destruction at the podium of the General Assembly:

http://www.trbimg.com/img-59c133a3/turbine/la-na-trump-un-pictures-20170919/650/650x366

Photo credit LA Times: http://www.latimes.com/world/la-un-general-assembly-live-updates-world-awaits-president-trumps-first-assembly-20170918-htmlstory.html

If this is not twisted enough, now North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.

It is an outrage that some nations would not only trade with such a regime, but would arm, supply, and financially support a country that imperils the world with nuclear conflict. No nation on earth has an interest in seeing this band of criminals arm itself with nuclear weapons and missiles.

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

Note the nature of the threat – if the US is forced to defend itself or its allies, it will totally destroy North Korea (not – react to the extent necessary and proportionate; presumably even a preemptive self-defense theory would be on the table). Note also how the United Nations is a ‘they’ rather than a ‘we.’  Question for the readers: has this ever happened before? Shoes have been banged at that podium, of course, and sulfur has been smelt. Yet even at the height of the Cold War, has a head of state of a nuclear-weapons state used this kind of directly threatening language? Or is this simply old-fashioned nuclear deterrence inartfully expressed?

 

ICJ Advisory Opinion Request on the Chagos Islands

Published on June 24, 2017        Author: 

Yesterday the UN General Assembly voted, by 94 to 15 with 65 states abstaining, to issue a request for an advisory opinion from the International Court of Justice on the Chagos Islands. Readers will be familiar with the many legal disputes that have arisen from this leftover UK colonial possession in the Indian Ocean, ranging from the human tragedy of the Chagossians expelled en masse from the islands to make room for what is now a US military base of enormous size and importance, to the role that the Diego Garcia base played in the war on terror, to the applicability of human rights law to these issues, the designation of real or pretextual maritime protection areas, and the actual sovereignty dispute with Mauritius. Here’s a useful news item from the Guardian, and here is GA resolution itself, A/RES/71/292.  This is the operative part, i.e. the request that the Court will have to address:

(a)     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;

(b)     “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.

The precise drafting of these questions can be enormously consequential, as shown most recently and most clearly with the Kosovo advisory opinion – I would refer interested readers in that regard to the volume edited by Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion (OUP, 2015), particularly chapters 3, 6 and 7 which deal with various aspects of the ‘question question.’ At first glance, the drafting of the Chagos request is not only interesting, but also quite intelligent, especially regarding the (a) part.

Why? Well, one almost ritualistic aspect of these advisory opinions are the objections made to the jurisdiction of the Court and the propriety of its exercise by states who opposed the issuance of the AO request in the first place. These objections almost never work, but the good fight is nonetheless always fought. And there are cases, like the Kosovo one, in which a particular objection (there regarding the relationship between the UNSC and the UNGA) could find significantly more purchase than could otherwise be expected. In the Chagos case in particular, one could expect the UK to make the objection that the AO request is trying to circumvent the consent requirement for contentious ICJ jurisdiction, and is in effect litigating a bilateral dispute (see e.g. the Wall AO, para. 43-50). And in fact there clearly is a set of bilateral disputes on Chagos between Mauritius and the UK.

Note, however, the clever drafting of part (a) of the request: it doesn’t directly speak of whether Mauritius has sovereignty over the Islands, but asks whether the process of decolonization of Mauritius was lawfully completed because of the separation of the Chagos Islands from its territory. It also makes links to numerous GA resolutions, in order to reinforce the view that this is a multilateral issue, raising broader questions of principle which the GA has been dealing with for decades.

When it comes to part (b) of the request, what’s particularly notable is that it doesn’t simply ask what the consequences would be if the Court found that the UK acted unlawfully in part (a). Rather, the consequences are those arising from the UK’s continued administration of the Chagos Islands. This would allow the Court to deal with various questions that not directly related to sovereignty or any faults with the decolonization process, like the plight of the Chagossians. On the other hand, the drafting of part (b) is also such that it could allow the Court to ‘properly interpret’ it in such a way as to avoid some of the more controversial issues, as it in fact did in the Kosovo AO. We shall, of course, have to wait and see what happens – but watch this space.

 

Strasbourg Judgment on the Beslan Hostage Crisis

Published on April 13, 2017        Author: 

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

 

Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

Read the rest of this entry…

 

The Clearly Illegal US Missile Strike in Syria

Published on April 7, 2017        Author: 

Yesterday, the United States launched a missile strike against an airbase of the Syrian armed forces, in response to the recent chemical attack that the US claims was launched from this airbase. This is the first time that the US has directly used force against the Syrian regime. It is also the first time that its use of force in Syria is clearly illegal. Clearly, in the sense that I can’t imagine even a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter. (And arguably of US constitutional rules on the use of force – for which see Marty Lederman’s post on Just Security).

While the US use of force against ISIS on Syrian territory also implicates Article 2(4) of the Charter, the US at least has a reasonably plausible claim to collective and/or individual self-defense in that respect, even if this issue is hugely controversial. In this case, however, no self-defense claim can be made, since the Assad regime targeted its own population (assuming that the facts as alleged by the US are correct). Nor is the US publicly making such a claim. The official statement of the Pentagon quoted in Marty’s post states that ‘[t]he strike was intended to deter the regime from using chemical weapons again.’ Its purpose was therefore clearly retaliatory or deterrent, rather than defensive.

International law does not permit forcible reprisals that would breach Article 2(4), even if the purpose of the reprisal is to induce the other party to comply with its legal obligations. The US also has no Security Council authorization to do this act. Nor is the US claiming, or has ever espoused, a doctrine of humanitarian intervention (like the UK government does, for instance). And even if there was a customary humanitarian intervention exception from the prohibition on the use of force (and there isn’t), its requirements would clearly not be met in this instance. Hundreds of thousands of people have died in Syria even without the use of chemical weapons, and thousands of people will continue to die even if the Assad regime never uses such weapons again. There is, in other words, nothing legally or morally unique about the use of chemical weapons as opposed to other war crimes and crimes against humanity in Syria which did not (and will not) provoke an interventionist response.

In short, this is a situation in which the US government doesn’t have even a colourable argument that its conduct is lawful. It may, of course, decide to break the law (as it did), by thinking that the breach of the law is justified by higher moral considerations (‘illegal but legitimate,’ etc), and by thinking that under the circumstances it is unlikely to pay a high political cost for its breach. At a moral or political plane, this argument rests on an (at this time untestable) assumption that the strike will do more good than harm. But the Charter has nonetheless been broken, and at that with a rare clarity.

Filed under: EJIL Analysis, Syria, Use of Force
 

Leonard Cohen on Brexit

Published on March 31, 2017        Author: 

I’ve seen you change the water into wine
I’ve seen you change it back to water, too
I sit at your table every night
I try but I just don’t get high with you
I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine

Ah, they’re dancing in the street—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me

Read the rest of this entry…

Filed under: EJIL Analysis
 
Tags:

The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn’t

Published on March 13, 2017        Author: 

As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court’s strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.

In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court’s swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.

Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience ‘some realities’ behind the revision request. In so doing, he calls the President’s letter and a previous letter by the Registrar ‘shallow exercises that fail to explain the legal reasoning of their conclusions,’ and concludes that ‘History will not look kindly on the ICJ’s decision to reject the Application for Revision.’

Oh, please; history, humbug. History really won’t care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won’t be writing about. And while I myself normally wouldn’t write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.

Read the rest of this entry…

 

Updated Rules for Contribution to the Blog

Published on March 2, 2017        Author: 

We have recently updated our rules for contribution to the blog, which interested readers may find here. This includes guidelines for submitting posts for publication and for commenting on the blog, as well as our moderation policy. Anyone interested in contributing to the blog should consult these guidelines carefully.

Filed under: Editorials, EJIL
 
 Share on Facebook Share on Twitter
Comments Off on Updated Rules for Contribution to the Blog

The Curious Case of the Killing of Kim Jong-nam

Published on February 24, 2017        Author: 

The night is dark and full of terrors. But sometimes the terrors are just too damn funny. Consider the circumstances of the untimely demise of Kim Jong-nam, the elder half-brother of North Korean dictator Kim Jong-un, assassinated in Malaysia apparently at the orders of his imperial sibling.

  • He was not just poisoned (so very old-school), but was poisoned by VX, the most potent of all chemical warfare agents, which is 100 times more toxic than sarin; less than a drop on the skin can kill you. Being poisoned at the orders of your family is one thing; your family killing you with a weapon of mass destruction is another. (Remember, though, that time when Kim Jong-un had some officials executed by anti-aircraft guns. All around nice guy.)
  • The immediate executioners were two young women, one Vietnamese and one Indonesian; they claim to have been duped into doing this by North Korean agents and that they thought they were just pulling a prank on someone; Malaysian police reject this version of events.
  • The Vietnamese woman was a failed “Vietnam Idol” contestant in 2016; a panel of judges rejected her after she sang just one line: “I want to stop breathing gloriously so that the loving memory will not fade.” The Indonesian woman wore a t-shirt with an “LOL” sign while carrying out the assassination. ROFL.
  • The most likely method of delivering the VX was not the spray or liquid on the assassins’ hands, but a drop of the toxin on a cloth which was then touched against Kim’s skin.
  • The Malaysian special forces are guarding the morgue in which Kim Jong-nam’s body is being kept, after an attempted break-in, the purpose of which may have been to tamper in some way with the corpse.
  • North Korea refuses to accept that the person who was killed was Kim Jong-nam, while at the same time requesting the surrender of the body.
  • There is apparently such a thing as a North Korean Jurists Committee. And they made a real gem of a statement on the assassination which I commend to every, erm, jurist out there. Among other things, the statement claims that (1) Malaysia violated international law by carrying out an autopsy on a bearer of a DPRK diplomatic passport, who had ‘extraterritorial right according to the Vienna Convention;’ (2) that the autopsy was an ‘undisguised encroachment upon the sovereignty of the DPRK, a wanton human rights abuse and an act contrary to human ethics and morality’; and that (3) ‘DPRK will never allow any attempt to tarnish the image of the dignified power of independence and nuclear weapons state but make a thorough probe into the truth behind the case.’ So the violation of international law and human rights is not the person’s death but the investigation. Note also the oh-so-subtle reference to nuclear weapons. Creepy/scary, but still LMAO.

Both factually and legally Kim’s assassination resembles the 2006 killing by radioactive polonium of Alexander Litvinenko in London, ostensibly by Russian agents. This is in effect Litvinenko redux, except it additionally has that very special DPRK flavour of crazy. The legal issues are more or less the same. One possible violation of international law is the infringement on the sovereignty of the territorial state. Another is the violation of Kim’s right to life – the DPRK is in fact a party to the ICCPR (recall the denunciation issue some time ago), but Malaysia (and China) are not and cannot invoke the DPRK’s responsibility directly in that regard even if they wanted to, although they may rely on customary law. There’s also the issue of the ICCPR’s extraterritorial application to the killing of a person by a state agent; I have argued that such scenarios are covered by human rights treaties, assuming that there is proof of the DPRK’s involvement in the killing, which of course remains to be conclusively established.