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Home Archive for category "Armed Conflict"

The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?: A Reply

Published on March 27, 2017        Author: 

 

This post is written as a reply to the interesting contribution made by Elvina Pothelet on the topic of forced displacement in Syria. In her article, Elvina examined the legal foundation for the claim that the evacuation of Eastern Aleppo amounts to the war crime of forced displacement. I would like to build on this work, but distinguish my arguments in two respects. First, by also approaching the case from the perspective of a charge of crimes against humanity, under Article 7(1)(d) and second, by arguing that contrary to Elvina’s interpretation, the ‘ordering’ requirement found in Article 8 (2)(e)(viii) should in fact be interpreted more liberally, in light of three counter arguments.

Forced Displacement as a Crime Against Humanity – Article 7(1)(d)

As with any assessment of this nature, it is undertaken on the basis of information freely available. With those responsible for displacing, in my view being the Syrian regime officials for their actions in Eastern Aleppo, not those who brokered or signed the evacuation agreement. With this in mind, I shall outline how the elements of Article 7(1)(d) are satisfied.

Contextual Elements

With respect to the contextual elements, the campaign launched by Syrian forces to retake Eastern Aleppo was an organised state policy. A legitimate question however, can be raised as to whether the civilian population was the primary object of the attack, (Kunarac Appeals Judgment para 91) or merely an “incidental victim of the attack’’, (Bemba Confirmation of Charges para 76). Given the means and methods used in Aleppo, (Kunarac Appeals Chamber Judgment para 91)  which are alleged to include “killing people, including women and children, on the spot in their homes and on the street,” there is at least a reasonable basis to believe that the civilian population were the object of the attack. Read the rest of this entry…

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The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?

Published on March 14, 2017        Author: 

On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”) released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.

The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission’s claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.

The evacuation agreement

The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo. Read the rest of this entry…

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Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

Published on March 10, 2017        Author: 

 

A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning. Read the rest of this entry…

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The Use of Cluster Munitions by Saudi Arabia in Yemen and the Responsibility of the United Kingdom

Published on March 7, 2017        Author: 

In December 2016, after repeated denials, Ahmed Asiri, a spokesman for the Saudi-led coalition fighting in Yemen, said: ‘It has become apparent that there was limited use by the coalition of the UK-manufactured BL755 cluster munition in Yemen’. This admission opened up questions about the United Kingdom’s potential responsibility for the use of cluster munitions by the Kingdom of Saudi Arabia. Britain’s Defence Secretary Michael Fallon informed the Commons that the munitions used by Saudi Arabia had been delivered in the 1980s, well in advance of the entry into force for the United Kingdom of the Convention on Cluster Munitions (‘the Convention’) on 1 November 2010. The treaty was implemented through the Cluster Munitions (Prohibitions) Act 2010 (‘the Act’).

 A judicial review of the granting of export licences to Saudi Arabia is currently taking place in the English High Court, following an application by the Campaign Against the Arms Trade (see here). The application focuses on export licences for weapons in general, and follows allegations of violations of international humanitarian law by Saudi Arabia, including, but not limited, its use of cluster munitions.

In this post, I focus on the specific responsibility of the UK arising under the Convention on Cluster Munitions for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel.

The post addresses three issues: first, whether issuing export licences for aircraft to Saudi Arabia can be construed as a breach of Article 1(c) of the Convention; second, whether the exception on interoperability in Article 21 of the Convention covers the acts by the UK in respect to the use of cluster munitions by Saudi Arabia; and third, whether the UK’s responsibility could also arise also under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘the 2001 Articles’). Read the rest of this entry…

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Turkish Military Intervention in Mosul: A Legal and Political Perspective

Published on January 27, 2017        Author: 

In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

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Practitioners’ Guide to Human Rights Law in Armed Conflict

Published on January 15, 2017        Author: 

The questions whether, when and how international human rights law applies to the activities of armed forces during armed conflict have been the subject of much discussion and litigation in the past couple of decades. It is now clear “that the protection offered by human rights conventions does not cease in case of armed conflict . . .” (International Court of Justice, Advisory Opinion on the Israeli Wall in Palestine (2004), para. 106).

However, what has been less clear is when those protections apply, especially when the state concerned is acting outside its territory, and how human rights law is to be applied in armed conflict. With regard to the latter question, one of the key issues is the relationship between human rights law, as it applies in conflict, and international humanitarian law as the law specifically designed for application in conflict. In the literature, and even in the case law, most attention has focussed on the when question (the question of applicability of human rights law) rather than the how question (the method and mode of application of human rights law). However, given that it is undoubtedly the case that there are circumstances when human rights law applies in armed conflict, even extraterritorially, the focus on the former set of questions, has led to an unfortunate lack of guidance as to how to apply (and to think about the application) of human rights law in situations of conflict.

Towards the end of last year, Oxford University Press published the Practitioners’ Guide to Human Rights in Law Armed Conflict (Murray, Akande, Garraway, Hampson, Lubell & Wilmhurst), a book that arises out of a project carried out by Chatham House under the leadership of Elizabeth Wilmhurst. The aim of this book is to provide guidance not only on when human rights law applies in situations of conflict, but, more importantly, on how it is to be applied.  As the Introduction to the book sets out, “The book is concerned primarily with giving guidance to the armed forces for the conduct and preparation of military operations.” (p. 2) However, it should be of assistance to all those who have to think about the application of human rights law in conflict – government officials, lawyers appearing before courts, members of non-governmental organizations and judges.

The book is divided into two parts. The first part (Chapters 1-4) provides an overview of human rights law, when it applies extraterritorially (ch. 3) and its relationship to the law of armed conflict (ch. 4). The second part (Chapters 5-17) provides detailed guidance on how human rights law applies to a range of issues that arise in armed conflict, eg the conduct of hostilities and targeting (ch. 5); weapons (ch. 7); prisoners of war and internment (ch. 8); occupation (ch. 10); and cyber operations (ch. 15). Read the rest of this entry…

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Identifying the Language of Peace: Developing the Practical and Theoretical Framework of Peace-Making

After a year which saw an unprecedented number of people displaced by violent conflict, and peace processes suffering setback after setback, from the repeated ceasefire violations reported in Yemen to the difficult process of bridging differences in Syria, faith in peace-making appears to be at its lowest. But when faced with the devastating impact of conflicts around the world, there can be no question of the need to redouble the efforts directed at achieving negotiated peace; as illustrated by the case of Colombia, peace is attainable even in the most entrenched of conflicts. In most cases, redoubling efforts requires going back to the drawing board, reframing issues and suggesting different approaches in order to create novel solutions to seemingly intractable problems. In such cases, the ability to draw on the practice of previous agreements drafted in similar situations may prove invaluable to the process; but without a consolidated and issue-based digest of such previous practice, this means having to spend days combing through possibly hundreds of documents (often on very short notice) each time, while there is still a chance of missing at least some of the relevant results.

Furthermore, identifying the range of options utilised in previous practice is only the first step; the negotiating parties must then consider whether these approaches comply with, or appear to depart from, international law. This in itself can be a cause of great controversy within peace-making processes: for instance, is it legal for peace agreements to grant blanket amnesties, including to (suspected) war criminals? Such controversies, as well as the ever-growing attention to concepts such as lex pacificatoria and jus post bellum, highlight the need to clarify the underlying relationship between peace and international law in specific areas.

It is in response to these concerns that the Language of Peace research tool – launched at the UN Secretariat in New York on Tuesday, 6 December 2016 – was developed, allowing instant search capability across the provisions of around 1,000 peace agreements, categorized according to the issues they address, from negotiating agendas through human rights to power-sharing arrangements. This post identifies two areas in which Language of Peace seeks to contribute to the development of international peace-making. Read the rest of this entry…

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The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access

Published on December 16, 2016        Author: 

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.

It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.

Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.

It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot. Read the rest of this entry…

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Joint Discussion on The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Just Security Posts

Published on December 16, 2016        Author: 

The second and third posts in our joint blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict are now available on Just Security. The blog posts are as follows:

Read the full posts over on Just Security.

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