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Home International Humanitarian Law Archive for category "Targeted Killings"

OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

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

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

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

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The Salisbury Attack: Don’t Forget Human Rights

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

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

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

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

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

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An International Use of Force in Salisbury?

Published on March 14, 2018        Author: 
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In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

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Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

Published on January 3, 2018        Author: 
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A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.

To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?

Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies. Read the rest of this entry…

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

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

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

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

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The International Legal Framework Regulating Armed Drones

Published on March 25, 2017        Author: 
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Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, Read the rest of this entry…

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What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

Published on January 12, 2017        Author: 
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Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

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Taking Stock of the Law on Targeting, Part II

Published on December 15, 2016        Author: 
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On Monday, I used the recently released U.S. report on military operations to assess the law on targeting. I argued that the dominant mode for analyzing these operations — asking whether international humanitarian law (IHL), international human rights law (IHRL), or a combination of both regimes governs — is problematic. The targeting rules in each regime are context-dependent, so the rules that have been developed for one context would not necessarily require the same thing if they were extended to a different context. Focusing so heavily on the regime choice is not only unhelpful but can be counterproductive. It reinforces the idea that the regime choice is ultimately what determines the codes of conduct. And so, it makes it harder to develop the law for situations that fit neatly into neither regime. Today, I’ll use U.S. targeting policies to amplify on my argument.

U.S. Position on Targeted Killings

The U.S. position is significant precisely because it pushes past the stale IHL-versus-IHRL debate. The United States does not treat the regime choice as particularly relevant to question of which targeting rules apply.

The U.S. legal claim seems to be that, although IHRL might apply to certain cross-border targeting operations, IHL defines or supersedes what IHRL would require; IHRL does not have independent force. Yet for years now, the United States has made clear that it does not intend to exploit, in all contexts in which it says IHL applies, the expansive authorities that are usually associated with IHL. The United States claims that, outside designated areas of active hostilities, it generally will use force only when someone “poses ‘a continuing, imminent threat to U.S. persons’” and “only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” (See p. 25 of the U.S. report.) Read the rest of this entry…

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Taking Stock of the Law on Targeting, Part I

Published on December 12, 2016        Author: 
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Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.

One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.

Identifying the Legal Framework

The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate. Read the rest of this entry…

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UK to Derogate from the ECHR in Armed Conflict

Published on October 5, 2016        Author: 
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At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.

Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.

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