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Home Human Rights Archive for category "Right to Life"

The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
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Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

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The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
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On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

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An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
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Kemal, a journalist and a national of the state of Azovia, is living in the state of Tiberia. One day he goes to the Azovian consulate in Kostantiniyye, a major Tiberian city, in order to obtain a divorce certificate, which he needs to marry his current fiancee. Kemal never emerges from the consulate. A few days later, Tiberian authorities publicly claim that Kemal was murdered by Azovian agents while he was in the consulate. The Azovian government denies these allegations. Assuming that the facts asserted by Tiberia are true, answer the following questions (in doing so, bear in mind that Azovia and Tiberia are both parties to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations; Tiberia is additionally a party to the International Covenant on Civil and Political Rights, which Azovia is not):

(1) Is Azovia responsible for an internationally wrongful act or acts, and if so, which one?

(2) If Tiberia had obtained reliable intelligence that Kemal was about to be murdered in the Azovian consulate in Kostantiniyye, would it have been (i) obliged to or (ii) permitted under international law to forcibly enter the premises of the consulate in order to save Kemal’s life?

(3) Would your answer to question (2) be any different if Kemal was murdered/about to be murdered in the Azovian embassy to Tiberia, rather than in its consulate?

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OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

Published on April 13, 2018        Author: 
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The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

UPDATE: See also this letter from the UK National Security Advisor to the NATO Secretary-General, providing some previously classified intelligence about the Skripal poisoning.

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Two Times Too Many: Botswana and the Death Penalty

Published on March 30, 2018        Author: 
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Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.) Read the rest of this entry…

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The Salisbury Attack: Don’t Forget Human Rights

Published on March 15, 2018        Author: 
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It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

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On Whether IHL Applies to Drone Strikes Outside ‘Areas of Active Hostilities’: A Response to Ryan Goodman

Published on October 5, 2017        Author: 
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Over on Just Security, Ryan Goodman has an excellent post entitled Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community). In sum, Ryan argues that human rights activists have been too radical in their critique of US drone strike policy, as reflected in the Presidential Policy Guidance adopted during the Obama administration, and in the context of the Trump administration’s recent proposal to revise this standing policy and relax some of its requirements, especially with regard to the procedure for authorizing lethal strikes. In particular, Ryan argues that human rights activists have been portraying as clearly unlawful decisions which legally fall within the bounds of reasonable disagreement.

In that regard, Ryan argues – persuasively in my view – that the mere fact that a drone strike takes place outside an area of active hostilities under the PPG does not mean that the strike takes place outside armed conflict under IHL. The former, as Ryan correctly notes, is not even a legal term of art. I also agree with Ryan that some US positions that used to be regarded as novel or anomalous have become mainstream with time, in part through the acceptance of these positions by European and other states, by the ICRC and scholars – viz., for instance, the idea of ‘spillover’ NIACs (for more on the operation of this mainstreaming process see here; on spillover NIACs see here).

That said, Ryan in some respects significantly overstates his argument. Yes, states have accepted the idea that they can be engaged in an armed conflict with a terrorist group – but I would say that this really was never in doubt. What was in doubt is whether this NIAC can be global in scope, and this US position has not been mainstreamed – or at least I am unaware of any other state which agrees with it. What do I mean by this?

Read the rest of this entry…

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Charlie Gard: An Ethical Analysis of a Legal non-Problem

Published on August 9, 2017        Author: 
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For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday. Read the rest of this entry…

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The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 
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This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

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Forcible “euthanasia”: the ECtHR´s Charlie Gard Decision

Published on July 14, 2017        Author: 
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When – first in the Netherlands, and later in other countries such as Belgium and Luxembourg – laws were adopted to legalize euthanasia, the selling argument was that this was a decisive step forward in order to ensure everyone’s self-determination. The ECtHR’s recent decision in the case of Gard and Others v. the United Kingdom reveals quite a different reality.

The decision is lengthy and contains a lot of medical terminology, but the underlying facts are simple: a child suffers from a medical condition that the treating doctors qualify as terminal, and for which no recognized treatment exists. Not only for argument’s sake, but also because we really have no reason to believe otherwise, let us assume that that assessment is correct and has been made by experts lege artis. Yet the child’s parents place their desperate last hope in an experimental treatment, which has so far never been tested on human beings (and, to believe what is noted in the ECtHR Decision, not even on animals). That treatment would have to be carried out, either in the UK or the US, by a leading researcher and expert on this kind of therapy, who has declared his willingness to administer it even though he qualifies the chances of success as “theoretical” and, on another occasion, as “unlikely”.

Read the rest of this entry…

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