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Home Archive for category "Afghanistan" (Page 3)

High Court Rules that the UK Lacks IHL Detention Authority in Afghanistan

Published on May 3, 2014        Author: 

Yesterday the High Court of England and Wales, per Mr Justice Leggatt, delivered a comprehensive judgment in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), holding that the United Kingdom lacks detention authority under international humanitarian law/law of armed conflict with regard to individuals it captures in the course of the non-international armed conflict in Afghanistan, and that any detention of such individuals longer than 96 hours violates Article 5 ECHR, as well as relevant Afghan law. The judgment is on any account a heroic effort, with the single judge grappling with a host of complex, intertwined issues of international law and acquitting himself admirably in the process. Para. 6 contains a summary of the judgment for those who don’t want to read the whole thing.

Here are some of the highlights of the Court’s analysis:

(1) The ECHR applies extraterritorially to any person detained by the UK in Afghanistan.

(2) Derogations under Article 15 ECHR could also be used in an extraterritorial context.

(3) The detention of SM by UK forces in Afghanistan was attributable to the United Kingdom, and not to the UN .

(4) No conflict arose between relevant UNSC resolutions, which did not authorize SM’s continued detention, and Article 5 ECHR, and Article 103 of the Charter was inapplicable.

(5) SM’s detention was not authorized by IHL either, since IHL in NIACs contains no detention authority, and cannot prevail over Article 5 ECHR as lex specialis.

(6) SM’s detention violated Article 5 ECHR. While the detention up to 96 hours was Article 5-compliant, the 110 days that SM spent in UK detention were not.

The Court makes it clear that the position the UK government found itself in is largely its own doing (para. 417 ff). This is exactly right. The government’s own legal advisers informed it of the limited extant legal authority for prolonged detention. The UK government failed to enact its own domestic legislation on detention in Afghanistan, or to come to different arrangements with Afghan authorities. Similarly, the UK government chose not to derogate from the Convention, preferring instead to argue that the Convention does not apply. And now that this strategy has failed (and on several levels), much of what it has been doing is exposed as unlawful.

I imagine that the judgment will be appealed, and we shall we see what happens there. But whatever the appellate courts’ conclusions, I can only hope that their judges will show as much diligence and analytical precision as Mr Justice Leggatt.

Here are the highlights, with some commentary:

Read the rest of this entry…

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The Legal Framework of Future Military Operations: Inching Towards a More Strategic Approach?

Published on April 8, 2014        Author: 

In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’.

The very fact that the Defence Committee saw the need to launch an inquiry into the legal framework governing military operations is remarkable. It demonstrates just how much legal considerations are shaping the current strategic and tactical landscape. It also lays bare a substantial degree of unease about the role that rules of law and legal processes play in an area as politically sensitive as the deployment of the armed forces.

Bearing in mind the complexity, contested nature and sheer scope of the topic, those who followed the inquiry closely may be forgiven for awaiting the publication of the Committee’s report with a certain sense of trepidation. How would the Committee deal with the extraordinarily broad remit of the inquiry? And what might lie at the bottom of Pandora’s box? These concerns turned out to be misplaced. The Committee must be commended for producing a balanced and informed report, no doubt assisted by the breadth of the expert evidence available to it. Above all, it is refreshing to see that the Committee succeeded in avoiding some of the untested assumptions and high drama which have been evident in the debate about the legal regulation of the armed forces.

Two main themes emerge from the report. The first is that the legal framework governing military operations is complex. This point may not come as a revelation to legal experts working in the field, yet acknowledging this complexity has very significant policy implications. As I have suggested in greater detail elsewhere (‘Deployed Operations and the ECHR’), legal complexity is here to stay and cannot be resolved for good. If all that we can achieve is a better balance of the competing considerations, we must focus our efforts on reducing the adverse effects of legal uncertainty on the armed forces, rather than chasing unrealistic attempts to simplify the law. The Committee’s recommendation to enhance the armed forces’ understanding of the law by providing them with better legal training, manuals and advice would go some way towards this end.

The second theme which emerges from the report is a strong sense that the Government must act more proactively and look at the legal framework for future military operations from a more strategic angle. Read the rest of this entry…

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The UN Working Group on Arbitrary Detention: Obaidullah v United States and the Mainstream of International Law

Published on October 7, 2013        Author: 

Photo BjorgeEirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, Oxford.

The UN Working Group on Arbitrary Detention (WGAD) is the only body in the international human rights system with a specific mandate to receive and examine cases on arbitrary deprivation of liberty. In this capacity it has, since 1991, interpreted and enforced the international legal rules on deprivation of liberty as they have developed in domestic, regional and international jurisdictions. Its jurisprudence can be accessed via its search engine. Earlier this year one of the members of the WGAD, Professor Mads Andenas, presented before the UN Human Rights Council the report 2012 WGAD activities.

Obaidullah v United States

obaidullah-785x1024Potential applicants and counsel are becoming increasingly aware of the opinions which make up the WGAD’s body of jurisprudence. A recent illustrative example is the opinion handed down by the WGAD in Obaidullah v United States on the detention of Bertola Obaidullah at Guantánamo Bay (distributed on 3 June 2013; to be published in December). In its opinion in Obaidullah the UN Working Group on Arbitrary Detention found against the United States in relation to the arbitrary detention of Obaidullah (pictured above right, credit).

Obaidullah, a twenty-nine-year-old ethnic Pashtun Afghan citizen resident in the village of Milani, Khost province, had on 21 July 2002 been taken into custody during a raid on his family home. He was interned at a US military station and subsequently held for three months. In its opinion the WGAD made clear that ‘while imprisoned in Afghanistan, Mr. Obaidullah was not informed of the reasons for his detention. He was threatened, coerced into making false statements and tortured’ (at [4]). The WGAD said the following about Obaidullah’s later detention at Guantánamo Bay: ‘In October 2002, United States military forces transferred Mr. Obaidullah to the United States detention facility at Guantánamo Bay, Cuba, where he continued to be subjected to torture and inhuman treatment. More than ten years later, Mr. Obaidullah continues to be detained at Guantánamo Bay. He was not provided any reasons for his detention nor charged’ (at [5]).

The opinion of the Working Group concluded that: ‘The deprivation of liberty of Mr. Obaidullah is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and 9 and 14 of the International Covenant on Civil and Political Rights.’ (See the excellent blog post by Marine Farshian on La Revue des Droits de l’Homme.) Read the rest of this entry…

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The UK’s Use of Drones in Afghanistan and Its Definition of “Civilians”

Published on January 31, 2013        Author: 

Last week, Ben Emmerson QC, the UN Special Rapporteur on Counter-Terrorism and Human Rights announced that he was establishing a panel which will investigate allegations that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties. The panel is charged with making recommendations regarding the obligation of States to conduct independent and impartial investigations into such allegations with a view to securing accountability and reparations. Most of the attention regarding the use of drones for targeted killing has, been focused on the United’s States drone programme. This is understandable as the vast majority of drone operations for targeted killing have been carried out by the US. However, it is implicit in Ben Emmerson’s statement that he also intends to examine the use of drones by other countries, and particularly by Israel and by the United Kingdom (see report by the Guardian).  This is because he mentions the use of drones in the “State of Palestine” and also refers to co-operation he has received from the government of the UK.

It is not well known that the UK also uses drones or Unmanned Aerial Vehicles (UAVs) for targeted killing and there has been little analysis of casualties arising from UK drone strikes.  A recent report by the UK House of Commons Library provides an overview of the:

“The strengths and weaknesses of UAVs, the different types of UAVs in use by the UK Armed Forces in Afghanistan, rules of engagement and highlights some of the points raised by those concerned about their development and use.”

The report points out that:

“Reaper is the only armed remotely piloted aircraft system used by the UK. It is only deployed in Afghanistan. Defence Minister Andrew Robathan has confirmed the UK does not use armed UAVs against terrorist suspects outside Afghanistan. Defence Minister Philip Dunne has confirmed it has not been used in Pakistan or Somalia. The MOD has not made a decision as to whether to retain Reaper once combat operations end in Afghanistan. As of 1 November 2012, 297 Hellfire precision guided missiles and 52 laser guided bombs have been employed by Reaper since operations began in Afghanistan. Reaper deployed to Afghanistan in 2007 but only had the capability to deploy air-to-ground weapons since May 2008.” (p. 11)

Civilian Casualties from UK Drones

One of the criticisms of the US drone programme is the US claim that few or indeed no civilians are harmed by drone strikes. This is a claim that has been disputed by journalists and others (see for example, the Bureau of Investigative Journalism). The UK makes a similar claim in relation to its programme. Read the rest of this entry…

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Denmark Establishes a Commission of Inquiry into the Wars in Iraq and Afghanistan

Published on April 17, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The Danish Government has decided to appoint a Commission of Inquiry on the Danish involvement in the wars in Iraq and Afghanistan. The terms of agreement for the Commission were sent to the Danish Parliament on 11 April 2012 (available here, in Danish). According to the terms, which are still to be negotiated with the relevant Parliamentary Committee, the Commission has to examine both the legal basis for going to war as well as the conduct of Danish forces on the ground.

The Danish decision to participate in the  in the Iraq war was taken by the Danish Parliament in 2003, but there have long been accusations that information was withheld from Parliament; even that it was misled. The Commission is called upon to  to examine whether the information provided to Parliament was ‘accurate and complete’. It also has to consider the previous Government’s assessment on the legality and the procedure leading up to the decision of going to war. As such, it resembles the Dutch Committee of Inquiry, which was established in March 2009 and the British (Chilcot) enquiry launched in July that same year (discussed, here, here and here)

The Danish Government’s main legal argument for the legality of going to war was the so-called ‘revival argument’ (explained here). In 2010 this argument was dented by the Dutch Inquiry, which found that the relevant Security Council resolutions did not “constitute a mandate for… intervention in 2003” (see full report, in Dutch, here but with conclusions in English from p. 527. Note paras 18-20 of conclusions dealing with international law).

Read the rest of this entry…

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The Taliban’s New “Code of Conduct”, Compliance with the Laws of War and POW status

Published on August 31, 2009        Author: 

After an absence of a couple of weeks and a summer silence on this blog, we are back.  I’ve got a bit of catching up to do. I want to spend the next couple of days discussing some legal issues arising from recent media reports about the war in Afghanistan. Later this week, I will write about US targetting of drug traffickers in Afghanistan with links to the Taliban. Today I wish to address reports (see here, here and here) indicating that Taliban’s leaders have issued a handbook containing a code of conduct for its fighters. In particular, I am interested in how this issuance of such a “code of conduct” may affect the determination of prisoner of war status in international armed conflicts.

According to FoxNews:

The handbook – written in Pashto and obtained through U.S. military sources – is entitled “Afghanistan Islamic Emirate Rules and Regulations,” and it is addressed to the “Mujahideen Pashto,” or Taliban commanders. Written on May 9 in Kandahar, the birthplace of the Taliban, it characterizes the Taliban’s fight as a “jihad” that can be achieved only if “it is done according to the framework of the established rules and regulations.”

Apparently, part of the purpose of the code of conduct is to win hearts and mind. It is significant that this new code departs from an earlier 2006 code  and contains rules which are similar to rules that exist in international humanitarian law (IHL). For example,while the previous code had explicitly sanctioned  the killing of teachers who instruct contrary to Islamic principles, the new code attempts to reflect the prohibition of targetting civilians and civilian objects. While suicide attacks are not prohibited,

“Suicide attacks should be at high value and important targets because a brave son of Islam should not be used for low value and useless targets,” the code of conduct said. “In suicide attacks the killing of innocent people and damage to their property should be minimized.”

It also says “all mujahideen must do their best to avoid civilian deaths and injuries and damage to civilian property.” And it says that mujahideen “should refrain” from disfiguring of people, such as the severing of ears, nose and lips.

US and Afghan officials have argued that the document is hypocritical, since the majority of civilian deaths in Afghanistan are caused by the Taliban. They also argue that the document is mere propaganda. Its more difficult to see how the document could merely be propaganda as it appears not to have been publicised by the Taliban and had been issued for a few months before it was discovered by the media.

The issuance of the document by the Taliban has a number of implications under IHL. It is interesting to consider whether the issuance of the document would have made any difference to the status of Taliban fighters had it been issued at the time when there was an international armed conflict in Afghanistan (which is no longer the case). The Bush administration argued (see here) that Taliban fighters were not entitled to POW status under the Third Geneva Convention (1949) dealing with Prisoners of War (GCIII)  because the Taliban did not fulfill the conditions of Article 4(A)2 of GCII. Art. 4(A)2 deals with the conditions that irregular forces engaged in an international armed conflict must meet in order to be entitled to POW status. Although the Taliban were the regular armed forces, it is generally accepted that some of the conditions in Art. 4(A)2 also apply to regular forces, though this is not explicitly stated in GCIII. Read the rest of this entry…

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Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

Published on June 30, 2009        Author: 

Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence.

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. Read the rest of this entry…

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