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Home Archive for category "International Humanitarian Law" (Page 2)

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

Published on June 10, 2019        Author: 

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: 

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: 

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: 

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: 

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

Published on April 16, 2019        Author: 

This post will examine the legal situation before the attack on Khashoggi had materialized. The main obligation of Saudi Arabia in that regard is the same as the one during the attack itself, the negative obligation to refrain from arbitrary deprivations of life, and I will therefore address it in the next post in the series. Here, however, I will look at the positive obligation to protect Khashoggi’s right to life on the part of the United States and Turkey.

The duty to protect life

Three basic questions need to be answered with regard to the positive obligation to protect an individual. First, at what point does it arise, i.e. what is its scope of application. Second, once that threshold is crossed, what is the standard of conduct expected of the protecting state. Third, whether on the facts the state acted accordingly, with due diligence, taking all reasonable steps it could have been expected to take. Human rights bodies have extensively dealt with these questions in their case law, e.g. in the Osman jurisprudence of the ECtHR and recently by the Human Rights Committee in its General Comment 36. The threshold and the standard of conduct issues both require that a balance be struck between, on the one hand, the need for states to act affirmatively to protect the life of individuals from third parties, and, on the other hand, the need to avoid imposing unrealistic and excessive burdens on states.

Threshold inquiry: foreseeability of the threat

On the facts of Khashoggi’s killing, therefore, the first question is whether either the United States or Turkey knew, or ought to have known, of a real and immediate risk to Khashoggi’s life at the hands of the government of Saudi Arabia. Was, in other words, the threat to Khashoggi’s life reasonably foreseeable to either state? The threshold standard does not require actual knowledge or certainty of such a threat; it is an assessment of risk. This assessment will necessarily be contextual, and will always depend on (1) the information the state actually had in its possession at the relevant time and (2) information that it did not possess but could have obtained as a reasonable follow-up from the information it did actually already have.

The issue, therefore, is what the United States and Turkey knew about the Saudi threat against Khashoggi’s life, and when they obtained such information. Obviously, any appraisal of what these governments actually knew can at this moment only be tentative and incomplete, in the absence of some kind of investigatory process, whether internal or external, in that regard. That said, as far as we are able to understand this today, what did the two governments actually know?

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

Published on April 16, 2019        Author: 

On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. He was visiting the consulate to obtain a certificate of divorce from his former wife, so that he could proceed to marry his Turkish fiancée, Hatice Cengiz, who was waiting for him in a car outside the consulate. According to media reports relying on the findings of the governments of Turkey and the United States, Khashoggi was killed by Saudi agents and his body was then dismembered with a bone saw; his remains are yet to be found.

It has now been six months since Khashoggi’s killing. Saudi Arabia is conducting a secret trial of 11 individuals accused of his murder; the trial is widely regarded as an attempt to whitewash the involvement in the killing of the highest levels of the Saudi government. The UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched an investigation into Kashoggi’s death as part of her mandate; as of the time of writing, she has published a set of preliminary observations and plans to submit a final report to the UN Human Rights Council in June. Her report, based inter alia on a field visit to Turkey, concluded (paras. 10 and 7) that the evidence ‘demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents,’ a ‘grave violation’ of the human right to life.

Some legal issues that arise in that regard are trivial, even if they are politically extremely controversial. For example, it is legally irrelevant whether, in fact, the Saudi crown prince Mohammed bin Salman ordered Khashoggi’s death or not. Per the customary rule codified in Article 7 of the ILC Articles on State Responsibility, Saudi Arabia incurs state responsibility for an internationally wrongful act committed by its organs acting in their official capacity, such as intelligence and state security officials, even if that act was committed ultra vires. Whether the crown prince’s underlings exceeded his orders or failed to inform him of the supposedly unauthorized operation – which involved a team of 15 agents, including a forensics expert specializing in rapid dissections, and two private jets – simply does not affect the attribution of, and hence responsibility for, the operation to Saudi Arabia.

It is similarly unquestionable, as Steve Ratner explained on Lawfare, that the Saudi operation against Khashoggi was a violation of Turkey’s sovereignty and of its rights under diplomatic and consular law. But while condemning Saudi Arabia for these violations would be both right and without difficulty, for international law to care only about the violations of the rights of the state in which he was killed would also profoundly fail to legally capture our sense of moral outrage over Khashoggi’s death. In addition to any criminal responsibility that may exist under either Turkish or Saudi domestic law, the most serious violation of international law at stake here is that of Khashoggi’s human right to life, and an attempt – ultimately unsuccessful due to the operation’s public exposure – to forcibly disappear him. This violation is compounded by that of the freedom of expression, since the reason for Khashoggi’s killing was his speech critical of the Saudi regime, and that of the prohibition of cruel, inhuman and degrading treatment regarding Khashoggi’s next of kin, due to the manner of his killing and the desecration and disappearance of his corpse.

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Humanitarian Assistance and Security Council Sanctions: Different Approaches to International Humanitarian Law

Published on April 11, 2019        Author: 

Under the sanctions regimes established by its resolutions adopted under Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) can currently impose sanctions on those who obstruct the delivery of humanitarian assistance in eight non-international armed conflict situations. This imposition of sanctions stems from the UNSC’s responsibility to maintain peace, security, and stability. Yet, its approach to humanitarian law (IHL) in these eight regimes has been inconsistent. In most of its current sanction regimes, the UNSC arguably has moved beyond the IHL applicable to humanitarian assistance, with the consequence that it can now sanction obstructions, which are broader than those which would constitute a violation of IHL. This post examines what this means for sanctions investigators and for the enhanced protection of civilians. 

Different Approaches of the UNSC with Respect to Imposing Sanctions on Obstructions to Humanitarian Assistance

The UNSC imposes sanctions in order to respond to threats to peace, security and stability. In the eight sanctions regimes discussed in this post, impediments to peace, security and stability explicitly or implicitly include obstructions to the delivery and distribution of humanitarian assistance and access obstructions.

Yet, the UNSC takes two different approaches when it imposes sanctions on obstructions to humanitarian assistance. In the first approach,  which is taken with respect to Libya and Sudan, there is no stand-alone criterion (the basis for listing by the UNSC or for being sanctioned) on humanitarian assistance, and humanitarian assistance and access obstructions may be considered under other listing criteria relating to violations of human rights or IHL. In these cases, Read the rest of this entry…

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Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 

On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

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Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 

Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

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