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Home Archive for category "Human Rights"

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

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Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

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The Human Cost of Using Informers in Conflict and the Ambivalence of International Law

Published on October 17, 2019        Author: 

In early October, the Guardian reported that former members of the IRA and British Army commanders may face criminal charges arising from serious offences connected with the use of informers for the purpose of gathering intelligence during the conflict in Northern Ireland. As part of the police inquiry ‘Operation Kenova’, files have been sent to the Public Prosecution Service in Belfast providing evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” associated with the activities of alleged former head of internal security for the IRA and British army agent Freddie Scappaticci.

Scappaticci is said to be linked directly to some 18 murders of IRA members accused of being informers. The families of a number of those killed have made formal complaints to the Police Ombudsman of Northern Ireland claiming that his military intelligence handlers failed to prevent those killings. Even more than the trial of “Soldier F” for two murders arising from Bloody Sunday in 1972, such proceedings could shine an uncomfortable light on how the dirty war was waged by state authorities in Northern Ireland. It also prompts the question of how law addresses the practice of using informers during conflict. 

The use of informers within non-state armed groups by British military, police and security forces was a common practice during the conflict in Northern Ireland. It is estimated that the IRA executed around 85 individuals accused of being informers during the course of the Troubles. Such practices are not unprecedented, as the recruitment and deployment of informers has been a perennial feature of armed conflicts, not to mention the frequently brutal treatment that has usually been meted out to such collaborators. As has been the case with the Scappaticci affair, authorities have at times gone to great lengths to secure and retain the services of high-level informers, including by tolerating or acquiescing in their involvement in criminal activities.

In terms of the law applicable to the use of informers, very often there has been limited or no national legislation governing the use of so-called covert human intelligence sources. The Chief Constable of the Police Service of Northern Ireland George Hamilton has acknowledged that in the context of the Troubles, “[t]here were no rules. There was no regulatory framework for handling of informants at that time”. Given the regularity of the practice during situations of armed conflict, it is appropriate to consider how applicable international law might be addressed to the deployment of informers, as well as its consequences.

On its face, international law applicable to armed conflict, including both international humanitarian law and international human rights law, has little to say about the use of informers. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 2: The Hole in the Roof

Published on October 8, 2019        Author: 

Part 1 of this blog post addressed the current narratives concerning the implementation of ECtHR judgments. Part 2 below attempts to set out what the current state of implementation might really be.

Imagine you are told that there is a hole in the roof of your house. You go out to buy the materials to fix it, come home and begin work. However, half-way through the repairs you realise that the hole is far larger than you thought. It turns out that you do not have enough materials to mend it properly.

If we are not careful, this is what is going to happen with the challenge of non-implementation of ECtHR judgments and the response that is made towards it in the next era of the Convention system. The scale of the problem is being underestimated – so there is a serious danger that the response will be insufficient. The scale of non-implementation can be demonstrated by looking at the best metrics available to assess the issue.

Overall judgments vs. Leading judgments

The number of overall pending ECtHR judgments is mostly filled by repetitive cases. In order for these to be closed, justice has to be carried out for the individual applicant in the case. This usually involves the payment of compensation; or perhaps a retrial or proper investigation into the relevant events. Read the rest of this entry…

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The Implementation of Judgments of the European Court of Human Rights: Worse Than You Think – Part 1: Grade Inflation

Published on October 7, 2019        Author: 

Part 1 of this blog post will explore how the current narratives about the implementation of ECtHR judgments paint a misleading picture. In Part 2, a different set of statistics will be examined, in order to explore how well the implementation system is really functioning.

In some countries, exam results in schools and universities are improving every year. However, many doubt that this is because the students are actually doing better in their studies. The accusation is made that, though exam marks are improving, this is the result of tests being made easier, rather than the students becoming better educated. This “grade inflation” allows schools and universities to publish better results, but without the performance behind the results actually improving.

What applies to schools and universities can also apply to international institutions.

Over the last few years, the Council of Europe has advanced a consistent narrative about the state of implementation of judgments from the European Court of Human Rights. This narrative suggests that implementation is going very well indeed. Read the rest of this entry…

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

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Qatar’s Reservations to the ICCPR: Anything new under the VCLT Sun?

Published on September 19, 2019        Author: 

On 21 May 2018, Qatar become the third country in the Gulf region to ratify the International Covenant on Civil and Political Rights (ICCPR). This followed Kuwait in 1996 and Bahrain in 2006. Qatar’s ratification came with a long list of reservations and statements. That these reservations and statements have similarities to those of its two neighbors in the Gulf region may suggest that there was not much new in them. Yet, they are novel in two respects. First, they are the first ICCPR reservations and statements that can be assessed under the ‘Vienna plus regime’ adopted by the International Law Commission in 2011. There have been ICCPR ratifications post-2011, but none of these had reservations. Second, Qatar’s reservations have attracted objections from 21 states – the largest number to date. As such, the case of Qatar also provides an opportunity to consider the extent to which the objecting states cohere with the guidelines provided by the ILC.

Qatar’s reservations to the ICCPR

At the time it ratified the ICCPR Qatar entered two reservations. These are to Article 3 (equal rights of men and women to enjoy Covenant rights) and to Article 23 (4) (equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution).

The reservation to Article 3 indicates that the line of succession to the throne is governed by Article 8 of the Constitution of Qatar. The Constitution only permits male members of the royal family to be in the line of succession. Qatar justifies its reservation to Article 23(4) under a presumption of incompatibility with Islamic Sharia, which is the main source of legislation under the Qatari Constitution.

Qatar also entered five interpretive statements to the ICCPR. These concern the definition of inhuman and degrading punishment (Article 7), freedom to have or adopt a religion or belief (Article 18), the marriageable age for men and women (Article 23.2), the definition of trade unions (Article 22) and the protection of the rights of religious minorities (Article 27).

For the first three of these statements, Qatar indicated that its interpretations of Articles 7, 18 and 23 will be guided by Islamic Sharia and, in the case of any conflict, the Sharia will prevail. Concerning the definition of trade unions, Qatar stated that this will be interpreted with reference to its labour law and national legislation. Qatar further stated that the protection of the rights of persons from religious minorities under Article 27 will be respected to the extent that ‘they do not violate the rules of public order and public morals, the protection of public safe[t]y and public health, or the rights of and basic freedoms of others’. Read the rest of this entry…

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Statelessness is back (not that it ever went away…)

Published on September 12, 2019        Author: 

Citizenship deprivation and statelessness are very much back in fashion. States increasingly resort to such measures to deal with those returning from foreign wars, or as a sanction for those otherwise deemed undesirable and unwanted – it must certainly seem easier than living up to their obligations actually to combat terrorist activities or war crimes or crimes against humanity (see here).

States are also ‘cracking down’ on citizenship claims and on the rights of refugees and migrants rights in orchestrated, if often chaotic, policies and practices seemingly designed to cultivate discrimination and division in society, often in the hope of some electoral advantage. Former UK Home Secretary, Theresa May’s ‘really hostile environment’ had such objectives (see here), while India’s current focus on minorities conveniently identified by reference to religion (see here and here and here), is not so very far removed from Myanmar’s programme of violence and persecution against the Rohingya it claims to be stateless (see here).

To any government which, thanks to the idle musings of former UK Prime Minister Tony Blair (see here), argues that citizenship is a privilege, not a right, one may as easily answer the contrary, for many a government these days seems bent on trashing precisely those responsibilities which are its raison d’être.

On the international plane, however, the State does have responsibilities with regard to its citizens. Among others, the State must ensure that they do not violate human rights and that they do not harm other States, whether through cross-border pollution, transnational criminal activities, or even by reason of their having to seek asylum from persecution, conflict or the risk of other serious harm. What is more, these responsibilities also apply after the fact, obliging States to do what may be required, for example, through prosecution and punishment, to uphold the integrity and efficacy of internationally agreed measures – to punish torturers, or those who have engaged in internationally proscribed terrorist activities; in short, to recognize and accept responsibility for those who have been formed among us, no matter how wrong the path subsequently chosen.

When citizenship enters the picture, does international law have much to say? The ‘old’ view that everyone should have a nationality, and only one nationality, has long since had to yield to the realities of a globalised world. What’s more, it has so far proved impossible to get States formally to accept constraints on their sovereign competence in nationality matters, even though what a States does in relation to nationality is entitled to recognition by others only so far as it is consistent with international law. And international law does have something to say, recognizing the link between people and territory, between the individual and their own country, between the competence to expel and the duty to admit.

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