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Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and
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This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
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Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

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Turkish Military Intervention in Mosul: A Legal and Political Perspective

Published on January 27, 2017        Author: 
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In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 
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This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

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The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 
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Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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Al-Saadoon and the Duty to Investigate

Published on September 16, 2016        Author: 
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On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. Read the rest of this entry…

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A Rejoinder to John Bellinger on the Chilcot Report

Published on July 13, 2016        Author: 
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Over on Lawfare, John Bellinger has an interesting post on the Iraq Inquiry which is well worth a read, responding partly to Oona Hathaway’s recent post on Just Security. However, there are a couple of points in Bellinger’s post that I think are highly problematic and would like to address here.

First of all, Bellinger notes that the Inquiry did not expressly criticize the UK (and the US) legal argument for intervening in Iraq, and draws from that the following conclusion:

Even if the Chilcot committee did not want to substitute its own legal conclusions for Goldsmith’s, if the Goldsmith view is as “widely repudiated” as Oona believes, surely the committee (which had former ICJ President Rosalyn Higgins as its legal adviser) would have noted this fact and provided the counter-arguments.  That the committee does not criticize the substance of Goldsmith’s legal conclusions tends to indicate that the committee did not find them “manifestly implausible.”

I don’t think this inference is correct, i.e. that from Chilcot’s silence we can infer anything about the commissioners’ views on the legality of the war. Chilcot expressly said that the legality of the war was outside the Inquiry’s mandate. This would include any judgments about the plausibility (as opposed to correctness) of any particular argument. And he moreover noted that the war was not one of last resort AND that in the Inquiry’s view the UK (and implicitly the US) undermined the authority of the Security Council.  Since the UK/US argument was based on implied Security Council authorization, the Inquiry’s finding is if anything directly contrary to the overall thrust of that argument, at the very least politically so.

Second, Bellinger notes (correctly) that, as a matter of principle, the 678/687 revival argument was not new, i.e. it was used before to justify several bombing campaigns in Iraq. But that the revival argument was not new has little bearing on whether it is plausible or correct, the political optics aside. It was always highly controversial, and received a lot of criticism in the legal literature even when it was used on a vastly smaller scale than the full invasion and regime change of 2003.

Nor does the fact that the government lawyers of five states (US, UK, Australia, Poland, Spain) endorsed that argument inherently make it plausible. I suppose a lot depends on the exact criterion by which we judge plausibility. I am reminded in that regard of a panel discussion on the Ukraine crisis that I chaired at last year’s ESIL conference in Oslo. There were a couple of hundred people in the room, and at one point I asked for a show of hands on how many of the international lawyers in that room thought that that Russia’s intervention in Ukraine was lawful – only one person did so. I then asked the same question about the US intervention in Iraq, and again only one person did so (it was not the same guy!). That is obviously just an unscientific data point, but it still aligns with my anecdotal impression that 99% of international lawyers outside the US (and even there the percentage is not much smaller) think that the Iraq war violated the UN Charter. That (some of) the government lawyers of five states thought otherwise doesn’t change much, I think, about the judgment that the profession as a whole has passed on the Iraq war, which I admit is also inevitably influenced by the unmitigated disaster it eventually turned out to be.

Thirdly, and most importantly, I think Bellinger doesn’t take into account that even among these five states there were significant differences in how they actually approached the revival argument. In particular, even the UK, the US closest ally, per the advice of Lord Goldsmith, considered that the US version of the revival argument was legally wrong. Just as a reminder, under both versions of the revival argument the authority to use force under SC res 678 was suspended but not extinguished by 687, and could be revived by a material breach of the conditions imposed on Iraq by 678 and subsequent resolutions. However, under the US version of this argument it was for individual states (i.e. the United States, i.e. President George W. Bush) to decide whether Iraq was in material breach, but under the UK version that judgment had to be made collectively, by the Security Council. This is why, under its legal view, the US had no need of resolution 1441, but on the UK view that resolution was indispensable, i.e. without it the 678 authority could not be revived.  This is also why, in his 7 March formal legal advice , at para. 9, Lord Goldsmith noted that he ‘was not aware of any other state which supports [the US] view.’

Finally, this is also why, as Dapo and I argued in our submission to the Iraq Inquiry, which was joined by many other scholars, Lord Goldsmith’s last-hour change of heart about the interpretation of 1441 could not be justified by discussions with US interlocutors and by reference to US ‘red lines’ that US negotiators could not possibly have conceded, since the US red lines were predicated upon the US version of the revival argument and not the UK one. In other words, the US may well have succeeded in upholding its red lines, but this would not automatically have meant that the UK succeeded in getting from 1441 what it needed to get to invade Iraq. (Notwithstanding the point of principle Richard Gardiner and Michael Wood have made before on whether UNSC resolutions can be interpreted by reference to what some of the negotiators privately thought they had or had not achieved).

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UK Iraq Inquiry Report

Published on July 6, 2016        Author: 
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In the past couple of hours, the Chilcot inquiry on the Iraq war delivered its long-awaited report, which can be accessed here. It is highly critical of virtually every aspect of UK policy that led to the Iraq war and its unfortunate aftermath – indeed, much more critical than many have expected. When it comes to the legal aspects, the inquiry’s mandate did not include an assessment of the legality of the use of force, but the inquiry nonetheless concluded that “the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort” and that:

The judgements about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified.

Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate.

The government failed to achieve its stated objectives.

The inquiry also found that:

Mr Blair and Mr Straw blamed France for the “impasse” in the UN and claimed that the UK Government was acting on behalf of the international community “to uphold the authority of the Security Council”.

In the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.

Second, the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court.

We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.

A 170-page chapter of the report on the provision of legal advice is here; further commentary from Joshua Rozenberg here.

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Extra-Territorial Claims in the “Spider’s Web” of the Law? UK Supreme Court Judgment in Ministry of Defence v Iraqi Civilians

Published on May 25, 2016        Author: 
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Over the past decade, the direction of travel of jurisprudence by English courts has significantly departed from an earlier position that considered the acts of the UK government in the exercise of foreign relations to be a non-justiciable area, and shifted towards scrutiny of the impact of UK foreign policy decisions on individuals (see Al Rawi v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289; the Binyam Mohamed case, and more recently the discussion of crown act of state doctrine in Serdar Mohammed v Secretary of State for Defence). After all, as stated by Lord Sumption back in an address at the London School of Economics in 2012, “the acts of the executive are by definition justiciable in its own courts”. The most significant factor for such a shift, as Lord Sumption noted, was the enactment into English Law of the European Convention on Human Rights (“ECHR”).

Despite this shift in the judicial attitude with regard to review of acts of the executive in foreign affairs, jurisdictional issues (ratione temporis) and time bars are proving to be hurdles in the path of claimants bringing claims with regard to acts engaged in by the UK government extraterritorially. The recent Supreme Court decision in Keyu and others v Secretary of State for Foreign and Commonwealth Affairs  [2015] UKSC 69 (“the Batang Kali massacre case” on which see this previous post) dealt with a temporal jurisdictional obstacle. The Supreme Court’s 12 May 2016 decision in Ministry of Defence (Respondent) v Iraqi Civilians (Appellant) [2016] UKSC 25 (“The Iraqi civilians case”) is another example of a hurdle faced by claimants, this time in the guise of a time bar.

While the Batang Kali massacre case was concerned with the Supreme Court’s interpretation of public international law rules, (quite centrally, with the duties Article 2 ECHR imposes on the UK in the context of inquiries), the decision in the Iraqi civilians case concerned English private international law, and turned on a point of interpretation of The Foreign Limitation Periods Act 1984.

In the Iraqi civilians case, the Supreme Court gave judgment in relation to 14 lead claimants (in claims by over 600 Iraqi citizens), who had alleged unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009.

The Supreme Court held, applying Iraqi limitation law, that the claims of the Iraqi civilians in England were time-barred. It dismissed the appeal. This post addresses the central holding of this case. Read the rest of this entry…

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The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary)

Published on April 8, 2016        Author: 
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The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.

In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”

So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”

Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.

Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”

It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Read the rest of this entry…

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