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Mobile Technology in the Interest of Law and the Protection of Civilians

Published on May 29, 2015        Author: 

Genevmobile app1a Call, a Geneva-based NGO, launches Fighter not Killer, a mobile quiz to raise awareness of the law of armed conflict among armed groups.

Making international humanitarian law more accessible

Today’s conflicts are mostly qualified under international humanitarian law (IHL) as being of a non-international character, i.e. a State against one or several armed non-State actors (ANSAs) or even a conflict among different ANSAs. It is thus critical to secure these actors’ compliance with international norms. The reasons for lack of compliance are diverse: strategic arguments (asymmetric warfare), the complexity of the different treaties and the lack of knowledge of applicable norms, and sometimes defiance toward international norms. These issues make the respect and implementation of IHL by ANSAs challenging, often leading to dramatic consequences for civilian populations.

While the level of knowledge of IHL varies among the different ANSAs, they all share common features. Their members are not necessarily professional combatants and have not been systematically trained on IHL. An uneven level of education and difficulties in accessing areas where ANSAs are operating impede dissemination of and training on IHL norms.

Since 2000, Geneva Call has been engaging in dialogue with more than 100 ANSAs to encourage them to respect IHL and enhance the protection of the civilian populations during armed conflict. In its daily work, the organization enters into dialogue with armed groups and invites them to sign Deeds of Commitment, through which ANSAs publicly commit to respect specific international humanitarian norms. It also supports the dissemination of IHL to commanders, combatants, political leaders of armed groups, and local communities.

Fighter Not Killer: A mobile quiz on IHL

To support this engagement with ANSAs, Geneva Call has developed a set of innovative tools to make IHL accessible to ANSA members. This set includes a mobile phone application, called ‘Fighter not Killer’. Read the rest of this entry…

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Reputation and Responsibility: Moving the Goalposts

Published on March 26, 2015        Author: 

Kristina Daugirdas renders an excellent exposition of a particular kind of argument about the development (us economics-oriented folk might say production) of international law. She focuses on the ILC’s Draft Articles on the Responsibility of International Organizations, a measure that some have criticized as premature. The degree of discomfort with the project that IOs have shown, however, might suggest (somewhat paradoxically) that its time has come, if only as a focus of debate. She illustrates the salience of the Draft Articles through the lens of the cholera crisis in Haiti, a matter that the United Nations has handled with all the finesse of a Fortune 500 CEO confronted horrific product liabilities.

Within the terms of her argument, Daugirdas succeeds in establishing her conclusion. The Draft Articles provide a defined and ostensibly neutral set of claims about responsibility and compensation. The absence of clarity in the international legal system about the content of the international law that IOs might violate, thus incurring responsibility, is not an impediment to talking about this. Debates about responsibility can contribute to the definition of primary obligations. Acts of reparation can reinforce the legal, rather than political and moral, nature of the obligation. An important means of inducing potentially responsible actors ‒ IOs ‒ to confront these claims is the impact of their actions on their reputation.

I do not want to push back against any part of Daugirdas’s argument. Rather, I want to use this opportunity to reflect a bit on the value ‒ and limits ‒ of two concepts on which her argument rests. Both transnational discourse and reputation present interesting problems that Daugirdas acknowledges, but understandably does not fully explore. My ultimate goal is to move the goalposts for talking about the processes involved in producing international law.

Transnational discourse. Let me posit that law making and law applying is largely a discursive process involving the manipulation of symbols to achieve verbal communication. In other words, talk matters a lot. This brute fact may frustrate the economically oriented, who usually prefer to look at preferences revealed by actions and may regard discussion as potential disinformation. No competent lawyer, however, can fail to attend carefully to the arguments made in the process of moving towards a legal outcome. Read the rest of this entry…

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Kristina Daugirdas, ‘Reputation and the Responsibility of International Organizations’

Published on March 25, 2015        Author: 

It has long been recognized by international lawyers of a more or less critical bent that one of the ways international law can be considered useful – regardless of the question whose idea of usefulness it serves – is that is provides a vocabulary for discussing things. Rules on use of force and self-defense may not solve conflicts, but provide a language (and often enough the most relevant language) for discussing the use of force. Rules on international trade may not solve trade conflicts, but help provide the relevant actors with a language in which to discuss whether tuna caught by means of driftnet fishing should be banned from markets or not. And even the rules on state succession, limited and few as they are, help facilitate discussions on what to do once a succession of states occurs.

In this light, Kristina Daugirdas’ main argument is hardly surprising. The point that the ILC’s articles on the responsibility of international organizations will play a role in what she refers to as ‘transnational discourse’ is both well-taken and well-crafted. Indeed, the evidence in support of that proposition is perhaps even stronger than she realizes: both before and after their adoption by the ILC, the articles have been referred to by international and domestic courts, including the European Court of Human Rights. That said, it is perhaps also useful to note that the International Court of Justice managed to avoid making any reference to the ILC articles in two recent decisions where a fleeting reference could have been expected: the 2011 judgment between Fyrom and Greece, and the 2012 advisory opinion on the International Fund for Agricultural Development. Still, on the topic at hand, the ILC’s articles are the main authoritative instrument available, so it stands to reason that participants in transnational discourse make reference to it, and look at the articles for inspiration and guidance, regardless of whether the articles are formally binding or can be said to reflect customary international law.

If her general point is not all that surprising, the more interesting part of Daugirdas’ article resides in the combination she makes of two distinct approaches to the study of international organizations. She draws inspiration both from constructivism (highlighting the relevance of norms) and rational choice theory (assuming actors to be inspired by rationalist motives in the pursuit of their self-interest), and does so to good effect. In itself, this combination too is not entirely novel: Ian Hurd and Ian Johnstone have done something similar in recent years (to name just two examples), and one of the Ur-texts of constructivism, Fritz Kratochwil’s Rules, Norms and Decisions (1989) was to a remarkable (and oft-forgotten) degree also inspired by rationalist insights. That said, in his later work Kratochwil seems to have lost some confidence in that kind of reasoning – or maybe he just lost confidence in some of its practitioners. Read the rest of this entry…

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Legality, Legitimacy, and Member State Cooperation in International Organisations

Published on March 24, 2015        Author: 

Is an international organisation’s (IO’s) compliance with international law essential to its legitimacy? And, even when a link between compliance and legitimacy obtains, is member state cooperation with the organisation contingent on its legitimacy? Might the answer to either of these questions vary systematically by organisational type?

In a rich and important contribution to understanding the dynamics of a relatively young area of international law, Professor Kristina Daugirdas offers a transnational legal discourse framework to understand why IOs comply with international law and the vital role that the Draft Articles on the Responsibility of International Organizations (DARIO) can play in that process. She supplements this with a granular, compelling account of the theory in action in the transnational struggle to hold the UN to account for the cholera epidemic in Haiti.

As I understand it, Kristina’s account of the IO accountability process (exemplified by the Haiti case) goes something like this:

  •  The legitimacy of an IO depends on its compliance with its international legal obligations.
  • By bringing clarity and specificity, the DARIO expand the quality and quantity of transnational legal discourse on IO responsibility, catalyze clarity on the primary obligations of IOs, and therefore tighten the link between IO compliance and legitimacy.
  • The legitimacy of an IO is essential to the IO’s success in generating the cooperation and support of its member states.
  • IOs will act so as to ensure that cooperation and support.
  • In light of (1)-(4), the DARIO can sharpen and enhance IOs’ incentives to comply with and uphold both the primary and secondary rules of international law.

My comments focus on step (1) – the tie between legality and legitimacy, and step (3) – the claim that from IO legitimacy, member state cooperation follows. Both are crucial to Kristina’s theory and to her assertion that IOs are likely “even more sensitive” to transnational discourse than are states. However, I suspect that IOs may vary considerably in the degree to which they conform to either step. Understanding that variance and what explains these relationships when they do obtain is essential to grasping the scope of the theory and its implications for the role of the DARIO. Read the rest of this entry…

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IO Reputation and the Draft Articles on IO Responsibility

Published on March 24, 2015        Author: 

In 2011, the International Law Commission adopted a set of draft articles on the responsibility of international organizations. Like the ILC’s draft articles on state responsibility, the IO Responsibility Articles seek to clarify both the circumstances that establish a breach of an international obligation and the consequences of responsibility, including the obligation to make full reparation for injuries caused by such violations.

The IO Responsibility Articles have come in for a lot of criticism from legal scholars. José Alvarez, for one, has described the ILC’s effort as ‘at best premature and at worst misguided’. In his view, the IO Responsibility Articles are premature, partly because there is not nearly enough practice to warrant their codification, and partly because the primary norms of international law that bind IOs remain unsettled. In particular, there’s considerable disagreement on how and when IOs are bound by customary international law and by treaties to which they are not parties.

Scholars—including Jan Klabbers, who is participating in this online symposium—have also questioned whether the IO Responsibility Articles would have any practical effect. They rightly note that the IO Responsibility Articles have elicited no substantial support from states and IOs. Although the ILC’s draft articles have often formed the basis for treaty negotiations, there’s no chance that the IO Responsibility Articles will be transformed into a treaty anytime soon. Furthermore, except in rare cases, neither international nor national courts can assess whether IOs have violated international law. Under these circumstances, one might be forgiven for thinking that the IO Responsibility Articles can safely be ignored.

I am more optimistic about the IO responsibility articles; I argue that they are neither premature nor feckless. In fact, the IO Responsibility Articles can help to clarify the primary international law norms that bind IOs. The IO Responsibility Articles may also spur IOs and their member states to prevent violations and to address violations promptly if they occur. And that’s so even if the IO Responsibility Articles never become a treaty and even if no new dispute-settlement mechanisms are developed. Read the rest of this entry…

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This Week: Discussion of Kristina Daugirdas’s “Reputation and the Responsibility of International Organizations”

Published on March 23, 2015        Author: 

Over the next few days, we will be hosting a discussion of Kristina Daugirdas’s article “Reputation and the Responsibility of International Organizations,” which was published in volume 25, no. 4 of the European Journal of International Law (2014). Kristina is an Assistant Professor of Law at the University of Michigan Law School.  The commentaries on her article will be by Tom Dannenbaum (University College London), Jan Klabbers (University of Helsinki), and Paul B. Stephan (University of Virginia). We are grateful to all of them for participating in the discussion.

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An Old Question in a New Context: Do States Have to Comply with Human Rights When Countering the Phenomenon of Foreign Fighters?

Published on March 19, 2015        Author: 

The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters have the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

1.  Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Read the rest of this entry…

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The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

Published on March 3, 2015        Author: 

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention. Read the rest of this entry…

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The Palestinian Authority Jury Award: Implications on Liability of Non-States and Damages for Psychological Harm

Published on February 26, 2015        Author: 

The recent jury verdict in the U.S. federal court finding that the Palestinian Authority should pay $655.5 million in damages to American victims of terrorism during the second Intifada has important legal and political ramifications. This post will focus on two questions raised by the verdict. First, on what basis can non-states be obligated to compensate civilians for casualties inflicted by another non-state actor? Second, might we begin to see more courts willing to award damages for psychological harm caused by terrorism?

Regarding the first issue, the verdict leaves open the question whether holding the Palestinian Authority accountable for the deeds of non-state actors implies that the Palestinian Authority should be viewed as a state. Until now, in a number of judgments, U.S. courts have found only that states, and not non-state entities such as freedom movements that possess some characteristics of a state, may bear accountability for material support to non-state actors. However, the verdict could be interpreted as an extension of this jurisprudential line.

Such an interpretation counters arguments by some scholars that the Palestinian Authority might be treated like other non-state actors such as multinational companies. Some legal academics have argued that courts hearing the case on appeal might consider such an analogy. On this view, the Supreme Court’s Daimler AG judgment could serve as a guiding torch. In the Daimler AG case, the US Supreme Court ruled that Daimler AG, a company in Germany, could not be sued in California based on the continuous and substantial business activities in California of Daimler’s US subsidiary, Mercedes-Benz USA. Read the rest of this entry…

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IHL Does Authorize Detention in NIAC: A Rejoinder to Rogier Bartels

Published on February 24, 2015        Author: 

We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.

Equal protection versus equal status

The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.

As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:

If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.

The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier: Read the rest of this entry…

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