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Home Articles posted by Helen McDermott (Page 3)

New EJIL:Live! Interview with Deborah Whitehall on A Rival History of Self-Determination

Published on November 11, 2016        Author: 

In the latest episode of EJIL: Live!, the Associate Editor of the European Journal of International Law, Dr. Guy Fiti Sinclair, speaks with Dr. Deborah Whitehall, Lecturer at Monash University Faculty of Law, about her article titled “A Rival History of Self-Determination”, which appears in EJIL, Volume 27, Issue 3. The article examines Rosa Luxemburg’s views on self-determination. Dr. Whitehall talks about how Luxemburg’s background and biography influenced her views, how those views differed from the orthodox liberal (Wilsonian) and Leninist positions, and what studying Luxemburg can illuminate for international lawyers today.

We welcome comments and reactions to EJIL: Live!

 
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Book Discussion: Introducing Daragh Murray’s Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

book-dmThe blog is happy to announce that this week we will be hosting a discussion on Daragh Murray’s new book with Hart, Human Rights Obligations of Non-State Armed Groups. Daragh is a lecturer at the University of Essex School of Law and Director of the Human Rights Centre Clinic. He will start the discussion tomorrow morning by outlining the main arguments of his book. Comments by Jonathan Horowitz, Cordula Droege, and Marco Sassoli will follow over the course of the week, while Daragh will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.

 
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Joint Series on International Law and Armed Conflict: Janina Dill on Assessing Proportionality

Published on October 11, 2016        Author: 

The final installment of our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict, ‘Assessing Proportionality: An Unreasonable Demand on the Reasonable Commander?’- by Janina Dill (London School of Economics) is now available on Intercross.

Here’s a snippet:

jdill-182Proportionality in International Humanitarian Law (IHL) demands that the attacker weighs incommensurate values: the concrete and direct military advantage anticipated to arise from an attack against the expected incidental harm to civilians and damage to civilian objects. It is common place that for that reason (amongst others) it is difficult to applyArticle 51(5)b of the First Additional Protocol to the Geneva Conventions and the corresponding principle of customary law to real world cases (here, here, here, here, here). The legal rule seemingly bends to endorse diametrically opposed interpretations of the same attacks; salient examples include some Israeli air strikes in the 2014 campaign in Gaza (hereand here). References to proportionality in the court of public opinion therefore often fan the flames of discord rather than adjudicate between diverging views. In the court of law, specifically in the chambers of the International Criminal Tribunal for the former Yugoslavia, proportionality has largely failed to add to the justiciability of unlawful attacks.

At the same time, proportionality – and indeed the task of comparing seemingly incommensurate values – are not unusual in law. What then is the problem with the principle of proportionality in IHL?

Proportionality according to the reasonable observer

A common approach to assessing an agent’s judgment of excessiveness is to look at it from the point of view of a “reasonable observer”. However, an empirical investigation of attitudes towards collateral damage yields anything but a concretization of what proportionate incidental harm looks like. When asked to put themselves in the place of a commander partaking in a mission to clear an Afghan village of Taliban fighters, 27% of British respondents and 20% of American participants in a survey I conducted in 2015 said they would not accept any foreseen civilian deaths as a side-effect of an attack meant to kill a group of Taliban fighters. At the same time, 17% of British and 21% of American respondents said they would accept however many casualties the attack would cause. 44% and 41% of the populations respectively hence rejected the very premise of proportionality in war: the prospect of a military advantage warrants a positive, but limited number of unintended, yet foreseen civilian casualties.

Read the full post over on Intercross. 

 
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Joint Series on International Law and Armed Conflict: Rachel VanLandingham on the Procedural Regulation of Detention in Armed Conflict

Published on October 6, 2016        Author: 

The fourth post in our joint blog series arising from the 2016 Transatlantic Workshop on International,’The Procedural Regulation of Detention in Armed Conflict’- by Rachel E. VanLandingham (Southwestern Law School, Los Angeles) is now available on Lawfare.

Here’s a snippet:

vanDuring our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.

While detention is internationally recognized as “a necessary, lawful and legitimate”component of military operations, there remain serious legal gaps regarding how detention should be conducted in the most common type of war, those between states and non-state armed groups. While the Geneva Conventions provide robust, detailed rules regarding how and when to detain both civilians and combatants during international armed conflict (IAC), there is no equivalent for NIACs. It is in states’ best interest to remedy this gap, both to avoid repeating past gross abuses and pragmatically, because such procedures are directly linked to operational success.

The issues most relevant to procedural regulation of NIAC detention fall roughly into three categories: the legal authority to detain; standards of (reasons for) detention; and notification plus review mechanisms.

Read the rest over on Lawfare.

 
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Joint Series on International Law and Armed Conflict: Chris Jenks on Coalition Operations & the Obligation to Investigate IHL Violations

Published on September 28, 2016        Author: 

The third post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Coalition Operations and the Obligation to Investigate IHL Violations’- by Chris Jenks (SMU Dedman School of Law) is now available on Intercross.

Here’s a taste: 

chris-jenksThis post suggests that while the components of the obligation to investigate reasonably suspected international humanitarian law violations are, in most respects, well settled, their application in and to multinational coalition operations is under developed.  Thus far, that result seems to reflect not so much a lack of satisfactory answers on accountability in coalition operations but rather avoidance in asking the questions and acknowledging an inherent tension.

Obligation to Investigate

A number of IHL instruments imply an obligation to investigate alleged violations. Each of the 1949 Geneva Conventions, taken together, require High Contracting Parties to enact legislation to provide effective penal sanctions for those persons committing or ordering to be committed a grave breach; to search for those who commit a grave breach; and to take measures necessary to suppress all acts contrary to the Conventions other than grave breaches. Additional Protocol I to the 1949 Conventions requires military commanders of High Contracting Parties, “with respect to members of the armed forces under their command and other persons under their control, to suppress and where necessary to report to competent authorities breaches….” Finally, the “unquestionable customary norm” from Rule 158 of the Customary International Law Study’s that “States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”

Read the full post over on Intercross.

 
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Joint Series on International Law and Armed Conflict: Monica Hakimi on Fair Trial Guarantees in Armed Conflict

Published on September 23, 2016        Author: 

The second post in our joint blog series arising from the 2016 Transatlantic Workshop on International, ‘Fair Trial Guarantees in Armed Conflict’- by Monica Hakimi (Michigan Law) is now available on Lawfare.

Here’s a taste:

hakimiThe fair trial protections that apply in non-international armed conflicts (NIACs) have received much less attention in recent years than have the protections on targeting and security detention. No doubt, this is because the basic contours of a fair criminal trial are generally not in dispute. Still, they raise a number of interesting questions. Here, I describe the current legal landscape and identify some issues that warrant further study.

A. The Regulatory Framework

The relevant treaty law can be laid out succinctly. The four Geneva Conventions, the two Additional Protocols, and human rights law all require that criminal trials be fair. The specific language and requirements of each instrument vary, but the key parameters are similar. (The relevant provisions are GCI art. 49; GCII, art. 50; GCIII arts. 84, 86, 99, 102–08; GCIV arts. 5, 64, 66–75, 117; common art. 3; API art. 75; APII art. 6; and ICCPR art. 14.)  In short, a court must: (1) be independent, (2) be impartial, and (3) afford defendants basic guarantees. A court is independent if it has the ability to conduct its business without undue external interference. It is impartial if its decisions rest on the evidence before it, without any predisposition toward one side or the other.

Common Article 3 does not list specific guarantees for criminal defendants in NIACs; it simply requires that defendants be afforded “all the judicial guarantees which are recognized as indispensable by civilized people.” Other treaty provisions identify what these guarantees might be. The provisions that apply in international conflicts, Additional Protocol II (which governs a subset of NIACs), and human rights law all require: (a) a presumption of innocence, (b) prompt notification of the offenses, (c) charges based on individual responsibility and offenses prescribed in law, (d) means to present a defense, (e) presence at trial, (f) a right against self-incrimination, and (g) notification of remedies. Three other guarantees are listed in the treaty provisions for international conflicts and in human rights law—but not in the provisions that specifically govern NIACs: (h) trial without undue delay, (i) open proceedings, and (j) no double jeopardy.

Read the full post over on Lawfare.

 
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New Issue of EJIL (Vol. 27 (2016) No. 1) Published

Published on April 26, 2016        Author: 

The latest issue of the European Journal of International Law (Vol. 27, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Charles Leben’s Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe. Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 
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New Issue of EJIL (Vol. 27 (2016) No. 1) – Out Next Week

Published on April 21, 2016        Author: 

The latest issue of the European Journal of International Law will be published next week. Over the next few days, we will have a series of posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

The EJIL Foreword; 10 Good Reads; Vital Statistics; EJIL’s Assistant Editors; With Gratitude – Shirley Wayne; In this Issue

The EJIL Foreword

Robert Howse, The World Trade Organization 20 Years On:  Global Governance by Judiciary

Articles

Charles Leben, Hebrew Sources in the Doctrine of the Law of Nature and Nations in Early Modern Europe

Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals

Yoshiko Naiki, Trade and Bioenergy: Explaining and Assessing the Regime Complex for Sustainable Bioenergy

Timothy Meyer, Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

Roaming Charges

Michael Klode, The Halls of Justice. At the African Court on Human and People’s Rights in Arusha, Tanzania Read the rest of this entry…

 
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New EJIL:Live! Joseph Weiler and Yishai Beer Discuss the Implications and Risks Involved in Revitalizing the Concept of Military Necessity

Published on March 23, 2016        Author: 

The latest EJIL: Live! episode features the Editor-in-Chief of the EJIL, Professor Joseph Weiler, speaking with Professor Yishai Beer, from the Radzyner School of Law in Israel, about his provocative and controversial article, “Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity”, which appears in EJIL, Volume 26, Issue 4. Professor Beer argues that there is an artificial tension between military necessity and humanity in the law of armed conflict. Military professionalism, he maintains, can act as a constraint on the brutal use of force and can better help to achieve the objectives of humanitarian law. The conversation explores the implications and risks involved in Professor Beer’s proposal to revitalize the concept of military necessity.

The EJIL: Talk! blog welcomes comments and reactions to EJIL: Live!