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Home Archive for category "International Humanitarian Law" (Page 26)

The Korean War has Resumed !! (Or so we are told)

Published on July 22, 2009        Author: 

Readers may wonder how they missed such a momentous event as the resumption of the Korean War. Don’t go scurrying to the TV or start clicking on those news sites just yet! There has been no use of force on the Korean Penninsula. However, it has been claimed that, as a matter of law,the Korean War has resumed. The argument was made in the Wall Street Journal, earlier this month, by Gordon Chang, an American  lawyer who writes on Chinese and Korean issues. Chang’s argument is that North Korea’s announcement on 27 May this year that it will no longer be bound by the 1953 Armistice Agreement which ended the Korean War (1950-53) means that the armistice is ended and that “North Korea . . . has resumed the Korean War.”

He makes this argument in order to provide legal justification for the US to circumvent UN Security Council Resolution 1874 (adopted after North Korea’s nuclear test in May) and to take a more robust approach to inspecting North Korean vessels. Chang’s argument is a dangerous one since if it were correct, it would not only justify the acts suggested by Mr Chang but would justify a broader use of force against North Korea.  In some ways, the argument is reminiscent of the arguments used to justify the legality of the 2003 Iraq War. There has been a breach of an agreement and so a prior war is on again! The argument was wrong then (when applied to breach of a Security Council resolution) and one is wrong now (when applied to a declaration of termination of an armistice). Read the rest of this entry…

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Afghanistan accedes to Additional Protocols to Geneva Conventions: Will AP II govern the conflict in Afghanistan?

Published on June 30, 2009        Author: 

Last week (June 24) Afghanistan acceded to Additional Protocols I & II to the Geneva Conventions. These treaties continue to inch towards univeral participation as there are 169 States parties to AP I and 165 party to APII. The ratification by Afghanistan ruins, somewhat, the point I usually make in class when introducing the Geneva Conventions and its APs.  I point out that though the APs are among the most widely ratified treaties, the list of States not parties to them is practically a list of  countries that have been involved in major armed conflicts over the last 30 years. The Additional Protocols will enter into force 6 months after the deposit of the instrument of accession by Afghanistan, i.e at the end of December. This means that from that date, AP II (which applies to non-international armed conflicts) will apply to the conflict in Afghanistan (i) in so far the conflict takes place between the forces of the government of Afghanistan and insurgents; and (2) in so far as the Taleban and other insurgents “exercise such control over a part of [Afghanistan’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (Art. 1(1) APII)  This second condition is often seen as a weakness of APII and is a condition not required by Common Art. 3 of the GCs, which also applies to non-international armed conflicts. However, that condition appears to be fulfilled in the case of Afghanistan as reports indicate that between 50 to 72% of that country are controlled by the Taleban or have a Taleban presence.

Given that much, if not most of the fighting against the Taleban is undertaken not by the Afghan armed forces but by the NATO led International Security Assistance Force (ISAF), APII will not apply to much of the conflict in that country. This would indicate yet another weakness of APII (in additon to the fact that it provides only rudimentary provisions for the non-international conflicts it covers). If, as is common, the country in which the conflict takes place invites another country or countries to fight against rebels, APII will not govern the conflict between invited country and the rebels. Read the rest of this entry…

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Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities

Published on June 4, 2009        Author: 

On Tuesday (June 2), the ICRC published a document setting out its “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.”  The purpose of the document is to help clarify and to assist in the interpretation of a principle which is well accepted in international humanitarian law (IHL) but subject to much ambiguity. This is the principle that civilians are to be immune from direct attacks by the parties to an armed conflict unless the civilian takes a direct part in hostilities. The principle is codified in Article 51(3) of Additional Protocol I (1977) to the Geneva Conventions (1949): “Civilians shall enjoy the protection [from direct attack] . . ., unless and for such time as they take a direct part in hostilities.” The Israeli Supreme Court held in Targeted Killings Case (2005) that this provision in its entirety is a reflection of customary international law (para. 30).  The principle regarding immunity of civilians from attack except in cases of direct participation in hostilities is a key component of the principle of distinction – which requires belligerents to distinguish between civilians and combatants. The principle of distinction and notion of direct participation in hostilities addresses the most most fundamental question in wartime: who can be targeted in an armed conflict? Therefore an attempt to clarify these principles is of great importance and should help in clearing the fog of war?

Despite agreement on the principle that civilians who take a direct part in hostilities are subject to direct attack by the adversary, there has been much difficulty in applying it. Even the basic question of who is a civilian is one where answers have been unclear – particularly in non-international armed conflicts. There is little guidance on what the words “direct participation” mean and on when a person is to be considered as no longer taking a direct part in hostilities so that he again benefits from civilian immunity. It is clear that a civilian who takes up arms and uses it offensively will be taking a direct part in hostilities. It is also certain that the concept of direct participation extends beyond those who bear arms. But how far? Does it extend as far as those who provide logistical support for persons who bear arms or those who provide intelligence? These questions have assumed increased importance in recent years because of the changing nature of armed conflict, and in particular, the increasing involvement of civilians in armed conflict. These changes result partly from the increase in asymetric conflicts with non-State actors but also from the increased use of civilians (eg private contractors) even by States in the general war effort. As a result of these trend it is essential that these questions regarding when civilians may be targeted in war are clarified.

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ICRC on Direct Participation in Hostilities

Published on June 3, 2009        Author: 

The ICRC has just published its interpretative guidance on the notion of direct participation in hostilities. This is a product of many years’ work and several consultations with eminent experts – though of course many experts would not agree on all of the ICRC’s conclusions, which are purely the organization’s own. At any rate, since this is one of the most contentious questions of modern IHL, this study will surely be influential and much discussed. I might post some comments on it once I have had the time to read it.

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

Published on May 3, 2009        Author: 

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. Read the rest of this entry…

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US District Court Rules on Guantanamo Detention Standard

Published on April 25, 2009        Author: 

A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as ‘enemy combatants’), subsequent to the filing of the Obama administration’s brief that we have previously extensively discussed. Judge Walton’s opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I don’t think that his reasoning is free of all legal difficulties.

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ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Published on April 7, 2009        Author: 

Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar at New York University Law School.

The New York Review of Books has today posted in full the ICRC’s report (of February2007) to the CIA based on interviews with 14 “High Value Detainees”  (HVDs) who were “rendered” to CIA-run “blacksites” and held there for several  years, before finally being transferred to Guantanamo. The ICRC interviewed the HVDs one at a time as to their treatment, and provides quite a nauseating narrative of abuse, degradation and humiliation. Unsurprisingly, the ICRC concludes that the treatment met the legal definition of both enforced disappearance and torture. According to the Report’s Conclusion:

 All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of law during the time they spent in the CIA detention program. The totality of the circumstances of which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, incontravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention, which was itself a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regimes. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain, and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization.

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constitutes a torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment, constituted a gross breach of medicine ethics and, in some cases, amounted to participation in torture and/or cruel, inhumane, or degrading treatment.

One thing that struck me when reading the report was the similarities  between the nature and purpose of the techniques used by the Americans, and those used by the Egyptian and Syrian (and Iraqi) intelligence services. The latter are all much more “low-tech” but have the same aim: to crush the spirit and personality of the detainee by a devastating combination of physical and psychological mistreatment administered repeatedly over time. Indeed, some of the techniques are exactly the same: beatings, confinement in small spaces, enforced nudity, and deprivation of basic hygiene facilities. The idea is that even if detainee is saying anything (including fabricating information just to stop the pain), by breaking their will one will eventually hear from them everything that they might know, and thus obtain intelligence that can be used for further inquiries and interrogation.

None of this is about ticking bombs – indeed, the techniques presume a fairly prolonged regime of mistreatment. It is about crushing a human being’s sense of themselves as human.

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What’s in a Name: The GWOT, Redefinition Accomplished

Published on April 2, 2009        Author: 

These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

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The Obama Administration’s Interpretation of the Authority to Detain at Guantanamo: Some Areas of Progress

Published on March 18, 2009        Author: 

In his post below, Marko takes the view that the Obama administration position on the authority to detain in Guantanamo in internally contradictory and based on a misinterpretation of international humanitarian law. While I agree with Marko that some of the analysis offered by the Obama administration in its recent brief  is confused and confusing, I am of the view that the position taken by the current administration regarding the authority to detain is progressive.

As Marko and Deobrah Pearlstein at Opinio Juris have pointed out the substantive standard for detention adopted by the Obama Administration differs little from the standard adopted by the Bush administration. This notwithstanding, there are at least two points in the Obama Administration’s brief where the tone and use of international law is  different from and better than the position taken by the previous administration. I leave aside the fact that this administration claims its authority to detain from the 2001 Authorisation for the Use of Military Force statute (AUMF) rather than from Presidential power.

The dropping of the term “enemy combatant”

The first things the Obama administration should be lauded for is that no longer uses the term enemy combatant with respect to the decision to detain. The Bush administration had tied the authority to detain persons at Guantanamo to the detainee  being found to be an “enemy combatant” (see the July 2004 order establishing the Combatant Status Review Tribunal). However, IHL has never predicated detention power on whether the person is a combatant. IHL envisages and authorises the detention of enemy combatants (see the 1949 Geneva Convention (GC) III for POWs and 1949 GC IV authorising detention of civilians who are saboteurs or are otherwise unprivileged belligerents). However, IHL also envisages and authorises detention of a broader group of individuals than those who can be regarded as combatants. The Fourth Geneva Convention (GC IV) on the Protection of Civilians  is quite clear on this as it allows belligerents to detain (intern) alien nationals “if the Security of the Detaining Power makes it absolutely necessary” (Art. 42) or for “imperative reasons of security” (Art. 78). The first provision relates to protected persons with the territory of the party to an armed conflict and the latter relates to situations of occupation.  At this pointof the argument, it matters little whether these provisions apply on their own terms to Guantanamo. They are used here to support the claim that under IHL detention is not tied to enemy combatantcy. But if IHL allows detention of a broader group than enemy combatantcy, why is it a good thing that Obama administration no longer ties detention to whether a person is an enemy combatant?

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The Obama Administration’s Total Misinterpretation of IHL Regarding the Authority to Detain Suspected Terrorists

Published on March 14, 2009        Author: 

Yesterday the Obama administration filed a brief with the US District Court for the District of Columbia regarding its detention authority of persons previously classified by the Bush administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the legal basis of the detention of suspected terrorists.

The brief has already made headlines because the Obama administration decided to scrap the rightfully much maligned term ‘enemy combatant.’ The one other notable legal development is that the administration also rejected the Bush position that it had inherent constitutional authority to detain these persons, but based its authority solely in a statute, the 2001 Authorization for the Use of Military Force (AUMF).

The substantive standard for detention offered by the Obama administration, however, is almost identical to the one offered by the Bush administration:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

(Brief at 1)

As explained by Deborah, the only difference is that the Obama administration requires persons to have substantially supported Taliban or Al-Qaida, while for the Bush administration support alone sufficed. This change is obviously nothing more than cosmetic.

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