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Home Archive for category "EJIL Analysis" (Page 2)

A Frontstop Approach to the Backstop Conundrum

Published on January 29, 2019        Author: 
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The EU, understandably, wants to preserve the integrity of its customs and regulatory territory. The UK and Ireland wish to preserve, post Brexit, the integrity of the Good Friday agreement which implies an open border between the Union and a non-Member State. Herein is born the famous “Backstop” conundrum – the solution ‘de jour’ being the UK remaining in a Customs Union with the EU. 

Like many Europeans I find the thought of the Union without the UK distressing and a no-deal exit even more so. But one should not therefore obfuscate the terms of the ongoing debate. 

A Customs Union, we all know, comes with a price – notably the inability of the UK to conclude independent trade agreements – a price not all Brexiteers are willing to accept, at least not as a permanent arrangement or at least not as something forced upon them deus ex machina. It is also unlikely that the Union would allow the UK to have more than a consultative voice in future EU trade agreements which, of course, would bind such a Customs Union. Another unpalatable dish.  

But all this, we are told, will disappear when Final Status negotiations between the EU and the UK will conclude.  

The notion that final status talks will bring an end to a Customs Union Backstop  obscures one very uncomfortable catch 22 truth. The need for the Backstop will disappear if, and only if, the final status talks result in the UK remaining, one way or another, de jure or de facto,  in an EU Customs Union applying the Common External Tariff!

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Joint Symposium: Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements

Published on January 28, 2019        Author: 
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This is the first post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment. This piece is cross-posted on Just Security.

At the end of 2018 the International Law Programme at Chatham House published a report analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on incidental harm.  The rule of proportionality as formulated in Article 51 of Additional Protocol I of 1977 (AP I) requires belligerents to refrain from attacks ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

The report addresses three sets of questions: first, the criteria of causation and foreseeability, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm is excessive in relation to the anticipated military advantage; second, the types of incidental harm to be considered in proportionality assessments; and, third, a number of legal questions raised by the implementation of the rule in practice.

After putting the rule of proportionality into context, this blog post presents four of the points that the report seeks to clarify.  These are: the causation of the incidental harm and whether it is foreseeable; ‘knock-on’ or ‘reverberating’ harm; the types of injury to civilians to be considered; and the notion of ‘excessive’ incidental harm. Read the rest of this entry…

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Introducing Joint Symposium on Chatham House’s “Proportionality in the Conduct of Hostilities” Report

Published on January 28, 2019        Author: 
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Editor note: This piece is cross-posted on Just Security.

In December 2018, the International Law Programme at Chatham House published a report, “Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment,” analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on expected incidental harm to civilians and civilian objects.   

Chatham House prepared the report following a series of expert consultations, including participation from military and government lawyers, representatives of humanitarian organizations, and academics.  It also draws from review of IHL treaty texts, case law, and, to the extent practicable, military doctrine.

The report addresses three sets of questions about the rule of proportionality:  First, the report examines what it means for the harm to be caused by the attack and the concept of foreseeability of harm, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm to civilians and civilian objects is excessive in relation to the anticipated military advantage.  Second, it analyses types of incidental harm to be considered in proportionality assessments.  Third, it explores vexing legal issues that arise in implementation of the rule in practice (such as the type of information commanders should assess in “after attack” battle damage assessments).

In collaboration with Chatham House, EJIL:Talk! and Just Security have invited leading international humanitarian law experts to contribute to a joint online symposium on key issues addressed in the report. Starting this afternoon, we will host the following series:

(1) Emanuela Gillard, Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements (EJIL: Talk! and Just Security)

(2) Adil Haque, Proportionality and Doubt (Just Security)

(3) Lawrence Hill-Cawthorne, The Chatham House Paper on Proportionality in the Conduct of Hostilities (EJIL: Talk!)

(4) Geoff Corn, Calibrating the Compass of Proportionality (Just Security)

 

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Joint Blog Series on International Law and Armed Conflict: Urban Warfare: The Obligations of Defenders

Published on January 26, 2019        Author: 
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The fifth post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, ‘Urban Warfare: The Obligations of Defenders’, by Aurel Sari available now over on Lawfare.

Here’s a taster from Aurel’s post: 

Should Rules be More Differentiated? Few rules of the law of armed conflict address the position of defenders in express terms and even fewer impose specific obligations upon them. But this should not be seen as a gap in the law. The distinction between defenders and attackers does not sit well with the general tenor of the law of armed conflict. In fact, many of its rules, such as the duty to take precautions under Article 57 of Additional Protocol I, are context-dependent and thus perfectly capable of imposing differentiated demands on defenders and attackers in line with their specific circumstances. Although not directly addressed to defenders, Article 58 of Additional Protocol I complements these general rules in the context of urban warfare by imposing an obligation on the parties to take precautionary measures to protect civilians and civilian objects under their control, as well as to avoid locating military objectives within or near densely populated areas.

The precautionary duties imposed by Article 58 are broad. Essentially, they demand whatever action is necessary to protect civilians and civilian objects against the dangers arising from military operations. […]

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Joint Blog Series on International Law and Armed Conflict: Medical Care in Armed Conflict

Published on January 25, 2019        Author: 
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The fourth post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, ‘Medical Care in Armed Conflict’, by Marco Sassoli is available now over on the Humanitarian Law & Policy blog (Part I and Part II). 

Here’s a snippet from Marco’s post: 

What constitutes acts harmful to the enemy by medical personnel is controversial. Most consider that the term is wider than that of direct participation in hostilities (see e.g., here at 411, here and here at 329). This is correct for medical units and transports for whom the concept is specifically used in the treaties. The phrase includes not only overt hostilities, but also sheltering able-bodied combatants or fighters.

In my view, however, persons lose their special protection only if they directly participate in hostilities. It is true that the above-mentioned examples of acts harmful to the enemy do not constitute direct participation in hostilities. However, this stems simply from the fact that the expression ‘acts harmful to the enemy’ was elaborated for medical units and establishments, while ‘direct participation in hostilities’ refers to persons. A hospital can obviously not directly participate in hostilities, but it can be used to commit acts harmful to the enemy if it shelters able-bodied combatants. Although I must admit that this interpretation remains subject to controversy, my opinion is that this same logic does not apply to medical personnel. That is, if medical personnel were to shelter an able-bodied combatant, this action should not be considered as an act harmful to the enemy entailing a loss of protection. Admittedly, my interpretation will raise controversy. For instance, driving an ammunition truck from a port to a place where the ammunition will be stocked does not constitute direct participation in hostilities (see here at 56), while most would argue that, if committed by medical personnel, it would be an act harmful to the enemy. However, this conclusion has only a limited practical impact, because regardless of who is driving the truck, the truck is may be targeted, as a legitimate military objective. And, the status of the driver is unlikely to outweigh the military advantage in making the proportionality assessment.

Read the rest of Marco’s post over on the Humanitarian Law & Policy blog (Part I and Part II).  Read the rest of this entry…

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The China-Japan and Venezuela-Guyana Maritime Disputes: how the law on undelimited maritime areas addresses unilateral hydrocarbon activities

Published on January 25, 2019        Author: 
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In December 2018, two incidents brought to the fore the importance of the rules addressing activities in undelimited maritime areas.  The first incident occurred between China and Japan in the East China Sea, and the second took place between Venezuela and Guyana in the Atlantic Ocean. Whereas the establishment of maritime boundaries is the optimum choice when it comes to the creation of a stable and secure environment for the conduct of maritime activities, the UN Law of the Sea Convention 1982 (‘LOSC’ or ‘the Convention’) provides for the regulation of operations even in the absence of maritime delimitation. With a view to avoiding tension, Articles 74(3) and 83(3) LOSC impose two obligations upon states having overlapping entitlements/claims in a given undelimited maritime area. This post scrutinises the behaviour of the parties involved in the aforementioned disputes through the lens of the LOSC.

The factual background

On the 3rd of December 2018, Japan protested China’s deployment of a jack-up rig and the drilling of boreholes near the provisional median line between the two states in the East China Sea. In response, the Chinese Ministry of Foreign Affairs stated that China was carrying out hydrocarbon activities in waters falling within its jurisdiction and that it does not recognise the provisional median line with Japan.

It is worth mentioning that China has been engaged in hydrocarbon activities in the area since 2003 (a deal on the establishment of a joint development zone reached in 2008 has not been implemented). Furthermore, it is recalled that in 2014 China performed unilateral oil and gas ventures in an undelimited maritime area within 200M of the coasts of Vietnam, triggering the latter’s vehement reaction. China had attempted to justify its activities back then by invoking its claims according to the ‘9-dash line’, a claim which was put in doubt by the Award of the Arbitral Tribunal in the South China Sea (Philippines v China) case (2016). Read the rest of this entry…

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Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and
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This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

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Holding States to Account for Gender-Based Violence: The Inter-American Court of Human Rights’ decisions in López Soto vs Venezuela and Women Victims of Sexual Torture in Atenco vs Mexico

Published on January 21, 2019        Author: 
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In two recent decisions, the Inter-American Court of Human Rights (IACtHR) has affirmed the existing binding obligations of States to address gender-based violence against women by State and non-State actors. The López Soto vs Venezuela decision (published in November 2018) is the IACtHR’s first ruling on State responsibility for acts of sexual torture and sexual slavery by a private actor and its first case for gender-based violence against Venezuela. The Women Victims of Sexual Torture in Atenco vs Mexico decision (published in December 2018) sets out the State obligations in cases of sexual torture by state security forces. Both rulings build on the IACtHR’s prior gender jurisprudence and set important new precedents by providing detailed content to the duties of due diligence and by explaining the circumstances in which States can be held liable for breaching them.

The López Soto vs Venezuela case examines the circumstances in which acts of gender-based violence by private actors can be attributed to the State. In 2001, a well-connected private individual kidnapped Linda Loaiza López Soto, then 18 years old, in Caracas, Venezuela, holding her hostage for over three months. During her captivity, she was brutally tortured, raped and humiliated. In her February 2018 testimony before the IACtHR, she provided a harrowing account of the sadistic abuse she endured, the multiple surgeries she underwent for her injuries following her rescue, and the lasting impact of these injuries. López Soto brought her case before the IACtHR after domestic authorities failed to duly investigate and prosecute the crimes, convicting her abductor of lesser charges.

The Court focused its analysis on two contentious issues: (1) whether the conduct of a private actor could be attributed to Venezuela; and (2) whether this conduct amounted to torture and sexual slavery under international law, as argued by the plaintiff. Read the rest of this entry…

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Joint Blog Series on International Law and Armed Conflict: Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners

Published on January 19, 2019        Author: 
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The third post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, “Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners” by Tilman Rodenhäuser (ICRC) is available now over on Lawfare.

Here’s a taster of Tilman’s post:

Faithful application of the principle of non-refoulement can mean that it is not possible to lawfully transfer a person to another authority—for instance when the recipient authority is notorious for torturing or otherwise ill-treating detainees, or for executing them without fair trial. Practically, this means that the international forces are stuck with the detainee during extraterritorial operations. Short-term solutions in such situations include keeping a detainee in accordance with applicable procedural safeguards, finding an alternative authority to which transfers are lawful, or releasing the detainee. For longer-term solutions, states should work more systematically with partners to ensure humane treatment of detainees, including through assisting in developing necessary rules and procedures, training partner forces, or jointly managing certain detention facilities.

In light of the various legal and operational challenges that extraterritorial detention may entail, it could seem tempting to avoid taking prisoners at all, for instance by conducting “partnered operations” in which only local partners take detainees.

Read the rest of Tilman’s post over on Lawfare.

Other posts in the series:

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Acquittals by the International Criminal Court

Published on January 18, 2019        Author: 
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Earlier this week, a Trial Chamber of the International Criminal Court acquitted Laurent Gbago, former President of Côte d’Ivoire, and his right-hand man, Charles Blé Goudé. (In what follows, I will refer only to Gbagbo). By a majority of two to one, the judges held that there was insufficient evidence to place Gbagbo on his defense. The Prosecutor has indicated that she will appeal this decision.

Critics of the ICC claim that this track record constitutes an indictment of the Court. They point, in comparison, to the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.  

I would suggest, however, that the comparison is not a fair one. In the case of the UN tribunals, each court was given a specific mandate that extended over a defined territory – the states that comprised the former Yugoslavia in the case of the first and Rwanda in the second. They were supported by resolutions of the Security Council that were legally binding on all members of the United Nations. They had the full and active support of the United States that brought its political and economic muscle to back that support. On the other side, the ICC has jurisdiction over war crimes perpetrated in 123 States or committed anywhere by a person who is a national of one of those 123 States. On this ground alone the differences become manifest.

That mistakes have been made by organs of the ICC cannot be doubted. However, it is always easy to criticise in hindsight. Some proceedings have taken too long. Some of the judges have been less than prompt in issuing their decisions. Criticism of, as well as praise for, the ICC has come both from civil society and from governments.

In June 2018, there was a massive outpouring of criticism at the decision of a majority of the ICC Appeals Chamber acquitting the former Vice-President of the Central African Republic, Jean-Pierre Bemba. 

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