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Home Archive for category "International Humanitarian Law"

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 
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Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

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The Limits of the Law: Putting Reparations into Practice

Published on July 2, 2019        Author: , , and
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Reparations have recently been the hot topic from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible victims’ harm. Private law notions of restitution heavily imbue the concept. Indeed, the seminal case of Chorzów Factory by the Permanent Court of Justice laid the foundations for reparation in international law which ‘must, as far, as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’

In the past three decades we have seen an increase in reparation programmes from the German Compensation Scheme for Forced Labour, the UN Claims Commission, domestic reparation programmes such as Peru to jurisprudential strides of the Inter-American Court of Human Rights and the initial steps by the International Criminal Court. 2020 itself will mark fifteen years since the UN adoption of the Basic Principles for the Right to Remedy and Reparations for Gross Violations of Human Rights and Serious Breaches of International Humanitarian Law that sets the broad international standards for victims and states.

Despite these developments most victims of such violations do not receive reparations. Read the rest of this entry…

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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 
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In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

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Callamard Report on the Murder of Jamal Khashoggi: Part I

Published on June 25, 2019        Author: 
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Last week the UN Special Rapporteur on extrajudicial executions, Agnes Callamard, submitted to the Human Rights Council her long-awaited final report on the investigation she conducted on the murder of Jamal Khashoggi. In this post I’ll offer a few thoughts on some of the legal and factual findings of this report, which is the result of the only independent inquiry to-date into Khashoggi’s assassination in the Saudi consulate in Istanbul in October last year. Readers may recall that I’ve recently written extensively on the blog on the international legal aspects of Khashoggi’s murder, based on my forthcoming article in the Human Rights Law Review.

The Callamard report is extensive, detailed and rich in its legal and factual analysis. Indeed it is far too extensive to be summarized and discussed in a blog post, which I will not attempt to do. Rather, this two-part post will focus on a selection of the report’s most novel factual and legal findings; the first part will examine the former, and the second, to be published tomorrow, will look at the report’s legal analysis.

The report itself is comprised of two documents. First, the formal report to the Human Rights Council, submitted for its 41st regular session starting this week – UN Doc. A/HRC/41/36. Second, a one-hundred page annex to that report, which contains the Special Rapporteur’s detailed factual and legal findings with regard to the murder of Jamal Khashoggi – UN Doc. A/HRC/41/CRP.1. The former document by and large summarizes the contents of the latter, while emphasizing some important points of principle, e.g. regarding the duty to warn (on which more tomorrow). I will hereinafter thus only refer to the annex, i.e. whenever I cite a paragraph of the report, I mean to refer to the longer document, A/HRC/41/CRP.1.

Again, I will not cover the report exhaustively. The media coverage of the report, including succinct summaries of its main findings, has been extensive (e.g. here and here; see also this VoA interview with Ms Callamard). In a nutshell, the Special Rapporteur found that Saudi Arabia bears state responsibility for the extrajudicial killing of Mr Khashoggi, in violation of his human right to life, and that it has similarly violated its positive obligation to effectively investigate his killing. She has inter alia called on the UN Secretary-General, the Human Rights Council, and the Security Council, to establish an independent international criminal investigation into Khashoggi’s murder, and has specifically found that credible evidence existed for the potential responsibility of the Saudi Crown Prince, Mohammed bin Salman, and his principal henchman, Saud al-Qahtani.

As one could expect, Saudi Arabia has already rejected the report, alleging that it is biased, contains ‘nothing new,’ repeats allegations already made in the media, and is based on ‘false accusations confirmed as stemming from Callamard’s preconceived ideas and positions towards the kingdom.’ In reality, however, there are quite a few new significant factual findings in the report, which have been made with a commendable degree of care and rigour – all the more commendable in light of the very limited resources that the Special Rapporteur had at her disposal. In fact, the report expressly tries not to rely on media reporting, whenever possible, and acknowledges possible sources of bias when appropriate (see paras. 36-37, 42-47). The Special Rapporteur established as proven or credible only those facts that she herself could independently substantiate. And, of course, she applied in great detail the applicable rules of international law to the facts that she has established. As we will see, most of her legal findings are (at least in my view) unassailable, while others are somewhat more tenuous.

What, then, of the report’s novel factual findings?

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The Legal Status and Characterisation of Maritime Militia Vessels

Published on June 18, 2019        Author: 
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A recent report has described how Royal Australian Navy helicopter pilots were targeted with lasers during a night flight in the South China Sea. The lasers were allegedly directed from Chinese fishing vessels – the primary cadre from which the so-called Chinese ‘maritime militia’ is drawn. Further, the incident occurred – according to another report – shortly after a US admiral warned that the paramilitary force could be treated as ‘combatants’. 

What is the Chinese maritime militia? As described below it is a hybrid body (or bodies), but in essence it is a civilian reserve force (often of fisherman) capable of being called upon to conduct military or governmental activities. A number of recent official reports (eg, US, and Japan), have specifically commented upon the rise in China’s employment of this force multiplier in the South and East China Sea regions. At a certain level such a force may be benign, called upon to assist in search and rescue efforts. The concern, however, is that militia vessels are also being used to further Chinese strategic claims in disputed waters by – for example – harassing the fishermen of other states – including by sinking their vessels, as is reported to have occurred with a Philippines fishing vessel just a few days ago. In another episode, Chinese fishing vessels formed a cordon around Chinese oil exploration vessels operating off Vietnam.

The concept of a ‘maritime militia’ is relatively recent, but not without historical parallel. There has long been (and remains) well settled law around the practices of privateering, use of merchant vessels as auxiliaries to naval forces, and conversion of merchant vessels into warships. In this post, however, I will briefly outline two status and characterisation challenges ahead – or rather, already with us – presented by the increased use of maritime militia by China in the current geo-political and legal context: The status and characterisation of militia vessels under the United Nations Convention on the Law of the Sea (UNCLOS) and the customary law of the sea; and their status under the Law of Naval Warfare (LoNW). Read the rest of this entry…

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More on the Duty to Warn Persons Threatened by Foreign Intelligence Services

Published on June 10, 2019        Author: 
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I recently wrote on the blog about the obligation of states, arising from their duty to protect the right to life under human rights law, to warn individuals subject to their jurisdiction of any real and immediate risk to their life, bodily integrity, or liberty and security of person, posed by foreign intelligence services. That duty arises if the state knows, or ought to know, of such a threat, i.e. if the threat is reasonably foreseeable to it. I’ve argued in that regard how it cannot be conclusively established, but may be so established after further factual inqury, that the United States or Turkey had enough relevant information in their possession to trigger their protective obligation with regard to Jamal Khashoggi and the threat posed to his life by agents of Saudi Arabia. If that obligation was triggered, however, the duty to warn Khashoggi arose, whereas no such warning was given to him before his assassination in the Saudi consulate in Istanbul.

As I have explained in my previous post, and in more detail in my full paper, the duty to warn does not impose unreasonable burdens on states engaged in intelligence-gathering activities. First, it is subject to a jurisdictional threshold, which may be looser, per the Human Rights Committee’s new functional approach to the extraterritorial application of the right to life, or stricter, per the more traditional spatial or personal conceptions of jurisdiction. Opinions will clearly differ in this regard as to which approach should prevail. The key point here, however, is that a state lacking the capacity to fulfil the duty to warn will never be expected to have to do so. Second, the duty will only be engaged if a specific unlawful threat to the life of an individual was reasonably foreseeable to the state. Third, the duty to warn is one of due diligence, and the state can take a number of relevant considerations into account in deciding on how to fulfil it. It might, for example, choose to convey the substance of the threat in a way that will avoid any risk of compromising intelligence-gathering sources and methods. It might choose to do so through an intermediary, such as a relevant agency of a partner state. In the vast majority of conceivable circumstances the state will be able to convey a warning without compromising its essential interests in any meaningful way. Granted, the state will have to devote some resources towards actually complying with the obligation. But such an expectation is not unreasonable, especially bearing in mind that this rather modest burden will usually fall on the wealthiest, most powerful states in possession of an extensive foreign intelligence apparatus, whose ultimate purpose should after all be the safeguarding of human life.

Importantly, in the past month or so, the CIA and partner security services have actually warned three associaties of Khashoggi of a Saudi threat against them, demonstrating that the duty to warn does not, in fact, impose unreasonable burdens on state authorities and that it can effectively be complied with.

First, after obtaining information about a specific threat from the CIA, the Norwegian security services warned a prominent Arab pro-democracy activist and vocal critic of the Saudi crown prince, who has been granted asylum and is living in Norway. As the Guardian reports:

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Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 
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In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part V: Conclusion

Published on April 18, 2019        Author: 
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The murder of Jamal Khashoggi is in many respects a truly extraordinary case. But it is by no means unique – authoritarian states assassinate journalists and political dissidents with some frequency. The use of consular premises as the scene of the killing is, of course, one special feature of this affair. And while diplomatic and consular privileges and immunities are abused all the time, this is not normally done in so spectacular a fashion.

What makes Khashoggi’s killing so fascinating from the standpoint of an international legal analysis is the interplay between the human right to life and the rules of diplomatic and consular law. However, as I have explained, most of the possible norm conflicts between immunities and the right to life could have been avoided in Khashoggi’s case. This is primarily because Khashoggi was killed on the premises of a consulate and not those of a diplomatic mission, and because consular privileges and immunities are significantly weaker than diplomatic ones.

It is therefore unclear why Turkey acted as if international law laid such obstacles in front of it, when in doing so it actually exposed itself to legal liability under IHRL for failing to effectively investigate Khashoggi’s death. There are several possible explanations. First, Turkey could have genuinely misunderstood the legal position, failing to appreciate the attenuated nature of consular immunities. The confusion of consular privileges and immunities with the more expansive diplomatic versions has certainly been pervasive in the coverage of the Khashoggi affair. In fact, in a speech in parliament President Erdogan lamented the fact that the ‘Vienna Convention’ – he did not specify which – inhibited the investigation through the ‘diplomatic immunity’ it provided for, commenting that it may need to be reviewed or revised.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part IV: After the Attack

Published on April 17, 2019        Author: 
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Prior posts in this series examined the legal situation before and during the attack on Khashoggi; this one examines its aftermath. After Khashoggi’s death, the substantive negative and positive obligations were extinguished, but the positive procedural obligation to investigate his death was triggered for both Saudi Arabia and Turkey. Khashoggi was subject to the jurisdiction of both states at the moment of his death. Like the substantive positive obligation to protect life, the procedural obligation to investigate is also one of due diligence, i.e. it does not require the state to do the impossible, but only what could reasonably be expected of it in the circumstances. In other words, it is inherently flexible. Investigations into allegations of violation of the right to life must always be independent, impartial, prompt, thorough, effective, credible and transparent, and in the event that a violation is found, full reparation must be provided.

It is manifest that Saudi Arabia is in violation of its procedural obligation to investigate Khashoggi’s death, on multiple grounds. Its agents covered up the evidence of the murder and actively obstructed Turkish efforts to investigate it. Its own internal investigation has lacked any transparency. It is obvious that Saudi law enforcement authorities have no real independence from the executive, the conduct of which they are supposed to be investigating, particularly with regard to the question of whether the crown prince ordered Khashoggi’s killing or knew that the operation would take place. It is equally obvious that the outcome of the Saudi trial of 11 unnamed individuals charged with Khashoggi’s death, which is shrouded in secrecy, is going to be determined by whatever the Saudi royals want the judges to say rather than by any kind of genuine pursuit for the truth.

In short, there is simply no doubt that Saudi Arabia is in violation of the procedural limb of the right to life. The position of Turkey is, of course, very different. As a general matter Turkish authorities have demonstrated willingness to effectively investigate Khashoggi’s death, and indeed much of what we know of his killing is directly the product of their investigative efforts. Had Turkey wanted to be complicit in the Saudi cover-up of the murder, it easily could have been, but it chose differently.

That said, the work of the Turkish investigators has also been subject to considerations of high politics. In particular, it has been limited and will be limited by whatever goals President Erdogan – no huge champion of the freedom of the press or human rights more generally – wishes to achieve in his management of the Khashoggi affair. And there are a number of specific decisions made by Turkish authorities that are at the very least arguably inconsistent with Turkey’s obligation under the ECHR and the ICCPR to effectively investigate Khashoggi’s death: (1) allowing the members of the Saudi hit-team to leave Turkey; (2) allowing the Saudi consul-general to leave Turkey; (3) delaying the search of the premises of the consulate; (4) delaying the search of the residence of the consul-general; (5) possible issues with searches of the consulate’s vehicles.

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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part III: During the Attack

Published on April 17, 2019        Author: 
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The previous post in the series looked at the situation that preceded the attack on Khashoggi by Saudi agents; in this one we move to the time of the attack itself. Saudi Arabia’s violation of its obligation not to deprive individuals arbitrarily of their life under Article 5 of the Arab Charter and customary IHRL is manifest, in the sense that Saudi Arabia could not offer any kind of justification for Khashoggi’s killing that could be regarded as even potentially legitimate from the standpoint of the right to life. What is not obvious, however, is whether the Charter and the relevant customary rule even applied to Khashoggi, i.e. that they protected him while he was located outside Saudi territory.

Extraterritoriality

This is again a question of extraterritorial application, but this time of the negative obligation to refrain from using lethal force without justification. And this is a question that is in no way unique to the Khashoggi killing. We have confronted it repeatedly in the past couple of decades, whether in the context of the use of lethal force in armed conflict or in plain or not-so-plain state-sponsored assassinations. From drone strikes in the war on terror, to the killing of Osama bin Laden in Pakistan by US special forces, to the assassination of Alexander Litvinenko and the attempted assassination of Sergei and Yulia Skripal by Russian secret agents, to the killing of Kim Jong-nam in Malaysia on the orders of his half-brother, the North Korean dictator Kim Jong-un – all of these cases raise the fundamental threshold question of whether the target of the use of force is protected by human rights law at all. As a general matter, powerful states have been reluctant to accept that human rights treaties would apply to kinetic uses of force outside their territory, especially in areas not within their control, because they tend to see IHRL as an excessive constraint on their freedom of action.

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