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Home Archive for category "International Humanitarian Law"

The Legality of the UK / Saudi Arabia Arms Trade: A Case Study

Published on July 20, 2017        Author:  and

On 10 July 2017 the UK High Court delivered its open judgment in a high-profile challenge to the UK arms exports to Saudi Arabia, brought by the Campaign Against Arms Trade. A separate closed judgment was delivered based on the confidential evidence. As readers will be aware, the case involves various domestic and international law considerations.

The primary question was whether the Secretary of State for International Trade (the Government) was legally obliged to suspend extant and cease granting new export licences to the Kingdom of Saudi Arabia. Such an obligation would stem from the requirement to deny such licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.

This condition is contained in Criterion 2 of the Common Rules Governing the Control of Exports of Military Technology and Equipment (European Council Common Position 2008/944/CFSP, December 2008). The Government adopted much of the Common Position as Guidance under s.9 of the Export Control Act 2002 and it accordingly represents the policy that will be applied when considering the grant of export licences. The Consolidated Criteria are thus intended to ensure the UK’s compliance with the UN Arms Trade Treaty (ATT), and the text of Criterion 2 links to its Article 7.

This blog post sets out initial thoughts on the open judgment, specifically focusing on its approach to ‘serious violation’ and ‘clear risk’, before examining the deference granted to the executive and its implications for the fulfilment of the ATT’s overarching purpose. Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the unwillingness of UK courts to become embroiled in the merits of certain government action. Read the rest of this entry…

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Creating International Frameworks for Data Protection: The ICRC/Brussels Privacy Hub Handbook on Data Protection in Humanitarian Action

Published on July 13, 2017        Author:  and

Introduction

The collection and processing of personally-identifiable data is central to the work of both international organisations working in the humanitarian sector (IHOs) and non-governmental organisations (NGOs) in protecting and delivering essential aid to hundreds of millions of vulnerable individuals. With the increased adoption of new technologies in recent years, and the increased complexity of data flows and the growth in the number of stakeholders involved in the processing, there has been an increasing need for data protection guidelines that IHOs and NGOs can apply in their work. This was highlighted first in the 2013 report by Privacy International entitled: “Aiding Surveillance”, and was also recognised by the International Conference of Privacy and Data Protection Commissioners in its Resolution on Privacy and International Humanitarian Action adopted in Amsterdam in 2015 (Amsterdam Resolution).

This need has led to publication of the new Handbook on Data Protection in Humanitarian Action prepared jointly by the Data Protection Office of the International Committee of the Red Cross (ICRC) and the Brussels Privacy Hub, a research institute of the Vrije Universiteit Brussel (VUB) in Brussels. It has been drafted in consultation with stakeholders from the global data protection and international humanitarian communities, including IHOs and humanitarian practitioners, data protection authorities, academics, NGOs, and experts on relevant topics. The drafting committee for the Handbook also included the Swiss Data Protection Authority; the Office of the European Data Protection Supervisor (EDPS); the French-speaking Association of Data Protection Authorities (AFAPDP); the UN High Commissioner for Refugees (UNHCR); the International Organisation for Migration (IOM); and the International Federation of Red Cross and Red Crescent Societies (IFRC).

Content of the Handbook

The Handbook addresses questions of common concern in the application of data protection in international humanitarian action, and is addressed to staff of IHOs and NGOs who are involved in the processing of personal data, particularly those in charge of advising on and applying data protection standards. It is hoped that it may also prove useful to other parties, such as data protection authorities, private companies, and others involved in international humanitarian action. Read the rest of this entry…

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The NotPetya Cyber Operation as a Case Study of International Law

Published on July 11, 2017        Author:  and

The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’.  By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.

Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’

Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State.  We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis. Read the rest of this entry…

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40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

Published on June 8, 2017        Author: 

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Read the rest of this entry…

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EJIL Talk! Book Discussion: Djemila Carron’s Response

Published on June 2, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).

Animus belligerendi

I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled. Read the rest of this entry…

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EJIL Talk! Book Discussion: The Act that Triggers an International Armed Conflict

Published on June 1, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

While giving an interpretation of Article 2 common to the Geneva Conventions, in order to define the notion of international armed conflict, Djemila Carron touches upon a profusion of subsequent questions. This is one of the interests of this book. This is also what makes this present contribution challenging. Indeed, reading Djemila Carron’s reflection on the act that triggers an international armed conflict makes one, me at least, want to write a ten page contribution on each specific topic. And this is not only because of the proximity between the subject analyzed in her book and my own area of interest in research in international humanitarian law. In my view, in addition to the overall depth and quality of Djemila Carron’s rationale, there are two reasons that explain that feeling when reading her book. First, the prism through which she has decided to deliver the results of her research, that is an analysis under the Vienna Convention on the Law of Treaties, and second the choice that she has made to answer six (plus one) specific questions in order to reach her own conclusions. Not only does a rigorous interpretation that follows the methodology of the Vienna Convention offer a new perspective for the exercise of classification of conflicts, but it also gives a broad overview which is enriched, at the same time, with numerous and often thought-provoking details. In parallel, the structure of the work, built around specific questions, gives the opportunity to open a dialogue. An opportunity that I seize in the following lines.

In the present contribution I have arbitrarily, but purposely, chosen to focus on two of the many issues that the author explores in order to analyze the act triggering an international armed conflict, namely the capture as an act that may trigger an international armed conflict and the necessity, or not, of identifying an animus belligerendi in order to classify a situation as international armed conflict. Within the structure of the book, the first is a sub-question of Question II regarding the nature of the triggering act and the second is a Question in such, namely Question VI regarding the necessity of an animus belligerendi. This choice has been made on purpose, since these two topics are among those with which I have dealt in my own research, but through a different prism, that is the temporal scope of applicability of international humanitarian law. Read the rest of this entry…

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EJIL Talk! Book Discussion: Some Considerations on Intervention Against Non-state Actors in Foreign Territory

Published on May 31, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Dr. Djemila Carron has penned a significant book devoted to international armed conflicts. The great merit of Djemila Carron is to have exclusively focused on the notion of international armed conflict while nowadays most of the publications tend to examine mainly the concept of non-international armed conflict. In the recent years, legal literature has paid little attention to international armed conflicts. Dr. Carron rectifies this trend and brings back to the forefront of the legal discussion the notion of international armed conflict. This is all the more important as contemporary belligerency shows that, more and more, current situations are characterized by the intervention of third states, multinational forces or coalition of states in pre-existing armed conflicts. This inevitably raises questions about their characterization for the purposes of IHL.

Many issues covered by Djemila Carron’s book could have been the subject of legal discussions but within the framework of this brief post (which cannot do justice to the numerous legal issues raised in the book), I would like to focus on one particular aspect of the analysis conducted in this deep and thorough research: transnational armed conflicts against non-state armed groups and their potential classification as international armed conflicts.

To sum it up in a few sentences, Djemila Carron establishes first a presumption according to which the unconsented-to armed intervention of a state in the territory of another constitutes an international armed conflict but qualifies this presumption as rebuttable. She then argues that the presumption can be rebutted in three distinct circumstances, one of them being when resort to armed force by the intervening state is exclusively carried against a non-state organized armed group in the territory of another State. In such scenario, and in the absence of direct confrontation between the armed forces of the intervening State and those of the territorial State, the situation would only qualify as a non-international armed conflict according to Djemila Carron even when the territorial State has not consented to the third State’s military intervention. In this regard, Djemila Carron’s position echoes those recently put forward by Terry Gill, Kenneth Watkin and Sean Watts. Read the rest of this entry…

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EJIL Talk! Book Discussion: L’acte déclencheur d’un conflit armé international – Introductory Post

Published on May 30, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

During the night of Thursday April 6 and Friday April 7 2017, the United States carried out airstrikes on a Syrian military base that had allegedly been used by the Syrian authorities to launch a chemical attack against its own population. As those airstrikes were, to the best of my knowledge, the first ones conducted by the United States that directly and deliberately targeted Syrian positions in Syria, the question that arose for many scholars, humanitarian actors and members of the military was the following: are the United States and Syria in an international armed conflict (IAC)? Or were they already engaged in such a conflict since the United States had been using force on the territory of Syria against the Islamic State since 2014? If there was no previous IAC between the United States and Syria on April 6, did those attacks add an IAC to the preexisting non-international armed conflict (NIAC) between the United States and the Islamic State? Did they transform (‘internationalize’) this preexisting NIAC into a IAC? Or should the attacks of April 6 and 7 fall outside the scope of international humanitarian law (IHL)?

Answering these questions, and more generally classifying hostilities, is crucial in international law. Indeed, rules applicable to an IAC – including the Geneva Conventions (GC), the first Additional Protocol (AP I), other treaties and provisions of international (and national) law and rules of customary law – create a legal framework significantly different from the one applicable in a NIAC or in the absence of a conflict. L’acte déclencheur d’un conflit armé international explores what act or acts might trigger an IAC. It uses Article 2 common to the GC as its starting point since this provision states that each of the four GC:

“shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.

The notion of IAC being the main entry point for the application of the core treaties of IHL, and the concept of NIAC being closely linked to the one of IAC, means that understanding the triggering act of such a conflict is a preliminary question to almost any application of IHL. Read the rest of this entry…

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Book Discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international”.

Published on May 30, 2017        Author: 

The blog is happy to announce that over the next few days we will host a discussion on Djemila Carron’s book, “L’acte déclencheur d’un conflit armé international“. 

Djemila Carron is a lecturer at the Law Clinic on the rights of vulnerable people at the University of Geneva. She will kick off the discussion this afternoon with an introductory post about her book. Comments by Julia Grignon (Professor of the Faculty of Law at Laval University (Quebec)) and Dr. Tristan Ferraro (Senior Legal Advisor at the ICRC (HQ Geneva)) will follow. Djemila will then bring the discussion to a close with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

Published on May 2, 2017        Author: 

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  Read the rest of this entry…

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