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Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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The ‘Command Responsibility’ Controversy in Colombia

Published on March 15, 2017        Author: 

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Read the rest of this entry…

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Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

Published on March 10, 2017        Author: 

 

A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning. 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: 

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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Author’s Response: Human Rights Obligations of Non-State Armed Groups

Published on November 7, 2016        Author: 

First of all, I would like to extend my sincere thanks to Jonathan Horowitz, Cordula Droege, and Marco Sassoli for taking the time to read my book and to engage with its arguments. All three discussants raised a number of interesting questions and although I cannot address them all here due to space limitations, they raised a number of issues that I will continue to think through and develop further. For the purposes of this post I have chosen to focus on four overarching topics: the challenge to State sovereignty posed by the regulation of armed group activity; the question of how human rights law obligations can be applied to non-State armed groups; the consideration of armed groups not party to a non-international armed conflict; and the question of compliance.

Before proceeding, however, I would like to flag a few issues. Although I argue that human rights law obligations can, and should, be applied to armed groups in certain situations, the State remains the original duty bearer. The fact that the State’s obligations are the starting point act as a safeguard to ensure that the State cannot rely upon the application of human rights obligations to armed groups to circumvent its own responsibilities (see the ‘respect, protect, fulfil’ framework discussed in the introductory post). I should also note that I regard the application of human rights obligations to armed groups as necessary but not ideal. In normal situations the State remains the appropriate guarantor of human rights. It is only in exceptional circumstances that efforts should be made to ensure that human rights are protected to the extent possible by extending obligations to armed groups. Finally, Sassoli makes an interesting point regarding the gradated context-dependent application of customary international human rights law. This appears sensible, and is in keeping with the approach to treaty law presented in the book; it requires further consideration. Read the rest of this entry…

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Two Fascinating Questions: Are all subjects of a legal order bound by the same customary law and can armed groups exist in the absence of armed conflict? Book Discussion

Published on November 4, 2016        Author: 

Armed groups are not very popular entities in today’s world, especially among states which invariably label them as terrorist. That such groups are bound by international humanitarian law (IHL) of non-international armed conflicts is clearly prescribed by Article 3 common to the Geneva Conventions, but this remains difficult for States to digest. Having obligations under the IHL of NIACs does not solve all the problems associated with such groups, because its rules are rudimentary, do not deal with how a territory must be administered and do not even apply to those acts of administration (e.g. in the areas of justice or detention) lacking any nexus to the armed conflict. It is therefore the great merit of Daragh Murray that his book forcefully argues – following in the footsteps of others such as Andrew Clapham, while providing greater detail and some new ideas – that armed groups have human rights obligations and explores what this can mean in practice.

I agree with the aim of the book and with most of the arguments employed. Some will, even in good faith, object to its aim, others will qualify Murray’s arguments as very forceful de lege ferenda, but argue that they go beyond a possible interpretation of lex lata. I find the very varied, often alternative, arguments presented for why armed groups can be subject to international law very nuanced, complete and convincing (with one exception discussed hereafter). The proposed gradated – or sliding scale – approach to the application of Human Rights to armed groups (pp. 172-199), based inter alia upon the classical distinction between obligations to respect, fulfil and protect is equally convincing and Murray’s application of this approach to three selected human rights is both innovative and realistic.

However, the argument provided for why armed groups are bound by existing human rights treaties (although they never accepted them formally) is in my view comparatively short, very absolute and less well-reasoned (pp. 164-169). Read the rest of this entry…

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Human Rights Obligations of Non-State Armed Groups: Realistic or Overly Ambitious? Book Discussion

Published on November 3, 2016        Author: 

Dr Murray’s book, Human Rights Obligations on Non-State Armed Groups talks about non-state armed groups as a reality that needs to be addressed: they exist, they exercise control, and therefore we must talk about their responsibilities. While this might seem self-evident, his sober analysis is particular commendable in the context of the current counter-terrorism atmosphere and discourse. It is a very well-researched, thorough and thoughtful book. It is particularly impressive in its wide research about the practice of many different groups.

The book raises many interesting questions on legal theory, but also on mechanisms to engage in dialogue with non-state armed groups. I would like to focus on two aspects: the legal “de facto control” argument and the dilemma which, to my mind, human rights obligations of non-state armed groups raise.

After having established that non-state armed groups have legal personality, the book argues that the “prescriptive jurisdiction theory” allows states – which are normatively higher positioned than their subjects, including non-state armed groups – to impose binding obligations on non-state armed groups as a matter of international law.

This is indeed what states have done in Common Article 3 to the four Geneva Conventions by imposing IHL obligations on each party to non-international armed conflicts, meaning also non-state armed groups. Through practice and opinio juris they have also, by now, by and large accepted that non-state armed groups have IHL obligations under customary international humanitarian law.

Unlike Common Article 3 and Additional Protocol II, however, human rights treaties are not generally worded in a manner that would suggest that they are binding on non-state armed groups. Other traditional sources of international law to create international rights and obligations would be customary law or general principles. However, the book discards both – customary law for lack of evidence; and general principles for being too general and vague. While this is correct, in my opinion, the analysis could have benefitted from looking a bit more closely at state practice and positions. Read the rest of this entry…

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Challenging the Traditional View that International Law Does not Extend to Non-State Armed Groups. Book Discussion

Published on November 3, 2016        Author: 

While international human rights law (IHRL) and its numerous enforcement mechanisms have proliferated over the years, millions of people remain beyond its reach. Frequently this is because they live in areas controlled by non-state armed groups, often under difficult and oppressive conditions.  Dr. Daragh Murray’s new book “Human Rights Obligations of Non-State Armed Groups” (Hart, 2016) addresses this issue by providing a serious and thought-provoking account of why IHRL binds non-state armed groups, both inside and outside situations of armed conflict.

In times of armed conflict, international humanitarian law (IHL) places important restrictions on organized non-state armed groups to address this problem, but its rules are sparse. Moreover, IHL lacks a strong, universal, and functional international monitoring system. There are also plenty of situations outside of armed conflict, where IHL doesn’t apply, and yet armed groups maintain decisive influence over the lives of people.

Murray’s book, which looks to IHRL for answers, refreshingly challenges the traditional view that IHRL doesn’t bind non-state actors.  Far from being an activist’s manifesto or merely providing a wish-list of what law should do to regulate non-state armed groups, Murray goes to great pains to interrogate what more international law, and IHRL in particular, is capable of doing. He does this in a comprehensive manner—drawing on a variety of fields of public international law and capitalizing on the relatively few instances where international law binds non-state actors—to develop a legal theory that he then applies to civil and political rights as well as economic, social, and cultural rights. Murray provides us with a detailed diagram of how IHRL binds non-state armed groups and gives thorough explanations to support what he describes.  Read the rest of this entry…

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Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

First of all I would like to extend a huge thank you to EJIL:Talk! for hosting this book discussion and to the three discussants for taking the time to read the book and to provide their comments. It is a privilege, and I look forward to the debate.

Human Rights Obligations of Non-State Armed Groups’ looks at the legal and practical mechanics of how international human rights law can be applied to armed groups. I focus on two key issues: (1) what is the legal basis for the application of international human rights law obligations to armed groups, and under what circumstances will the law apply, and (2) how will the application of human rights law to armed groups work in practice, noting that armed groups are definitely not States – and so cannot reasonably be subject to the same obligations – and also that significant variation exists amongst armed groups and so obligations may need to be applied to different armed groups in a different manner.

In this introductory post I would like to briefly set out why armed groups should be subject to human rights obligations, and to present an overview of my approach in relation to the two issues identified above.

Today, non-State armed groups exert significant influence over the lives of millions of people around the world. Indeed, at its height the Islamic State was reported as exercising governmental authority over up to 10 million people in Iraq and Syria, while the impact of other groups such as the CPN-M in Nepal, the LTTE in Sri Lanka, the FARC in Colombia, the Naxalites in India, or the BRN-C in Southern Thailand is well documented. The activity of these groups is demonstrably of international concern. Yet their activities are not subject to effective regulation. Read the rest of this entry…

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Book Discussion: Introducing Daragh Murray’s Human Rights Obligations of Non-State Armed Groups

Published on November 2, 2016        Author: 

book-dmThe blog is happy to announce that this week we will be hosting a discussion on Daragh Murray’s new book with Hart, Human Rights Obligations of Non-State Armed Groups. Daragh is a lecturer at the University of Essex School of Law and Director of the Human Rights Centre Clinic. He will start the discussion tomorrow morning by outlining the main arguments of his book. Comments by Jonathan Horowitz, Cordula Droege, and Marco Sassoli will follow over the course of the week, while Daragh will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.

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