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Home Archive for category "Non-State Actors" (Page 6)

IHL Does Not Authorise Detention in NIAC: A Reply to Sean Aughey and Aurel Sari  

Published on February 16, 2015        Author: 

As noted by Sean and Aurel, the appeals proceedings in Serdar Mohammed v Ministry of Defence have sparked a renewed debate about detention in non-international armed conflict (NIAC). They have set out their arguments in an interesting article and in summary form in this post. I am not convinced by their arguments though, and despite the fact that certain provisions of the law of NIAC address the restriction of liberty or otherwise recognize that on occasion persons will be held by a party to the conflict, I do not see any authorisation for detention in the black-letter, or customary, law of NIAC. In this reply, I address some of the arguments made in favour of finding such authorisation and put forward an opposing view, in support of Leggatt J’s judgment.

Sean and Aurel, and others claiming that authorisation to detain must exist because it is (partially) regulated, fail to acknowledge that the entire body of post-WW2 IHL shows that the regulation of a situation (or behaviour) does not make the occurrence of that situation legal or authorised. The pragmatism of the ICRC and the recognition that conflicts would continue to occur and regulation of the behaviour of warring parties would continue to be necessary, despite the UN’s insistence that no further need for regulation was necessary after the adoption of the UN Charter that outlawed aggression, does not make it legal to wage war. The fact that rules were adopted for NIAC, did not give armed groups any authorisation to fights their governments (or each other). Nor did it authorise governments to take action against such armed groups. Instead, IHL explicitly recognises that sovereign States had that right, independent of IHL. Read the rest of this entry…

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The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after the Airstrikes against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer

Published on February 12, 2015        Author: 

In a recent post on ‘The Airstrikes against Islamic State in Iraq’ (hereafter “the post”), Dapo Akande and Zachary Vermeer argue that the legal justifications given by the states intervening in Iraqseem to count against the existence of [a prohibition on intervening in civil wars] as part of contemporary international law”. The aim of this post is to question such a conclusion. It will deal with three main issues: the alleged generality of those legal justifications (1); their ability to reveal the opinio juris of the intervening states (2); and the situation in Iraq as a “civil war” in the sense of the 1975 resolution of the Institut de Droit International (IDI), which prohibits any intervention in civil wars (3).         

Generality of the legal justifications

Dapo Akande and Zachary Vermeer’s above-mentioned conclusion is based notably on the alleged “generality” of the legal justifications given by the intervening states in Iraq. After positing that Iraq is engaged in a civil war under the 1975 IDI resolution (an assumption I challenge below), they conclude that the “general” justifications offered for intervention imply that states consider that it is always legal under international law to intervene at the request of a government during a civil war. However, a closer look at the legal justifications offered, including those not mentioned in the post, reveals that, when justifying their intervention, all the states expressly referred to the objective of fighting against the Islamic State (ISIL) as the specific purpose of the consent given by the Iraqi authorities for their intervention. In other words, in the Iraqi case, the consent given by Iraq to intervene on its territory was generally considered only in relation to this specific purpose.

In the declaration of the senior US administration official quoted in the post, as in President Obama’s notification to Congress (also and only partially quoted), “[the] actions” that the United States had been invited to take at the request of the Iraqi government were clearly actions against ISIL. More precisely, in Obama’s words, they were the “necessary actions against these terrorists in Iraq and Syria”. With regard to the declaration of France, in particular the speech by the French Minister for Defence before the French Senate, the French Minister clearly stated (after the passage reproduced in the post): “I remind you: we are responding to the request for support of the Iraqi authorities to weaken the terrorist organization Daesh.” (translated from French, emphasis added). Moreover, on 19 September 2014, the French President expressly stated in an official declaration: “Yesterday . . . I announced my decision to respond to the request of the Iraqi authorities and to grant them the support necessary to fight against terrorism.” (translated from French, emphasis added). Read the rest of this entry…

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The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars

Published on February 2, 2015        Author: 

Since the initiation of the US-led airstrikes against Islamic State (or ISIL) forces in Iraq and Syria in August and September of last year, the legality of the strikes in Syria has been the subject of much discussion. Much of the focus has been on whether collective self‑defence – of Iraq – allows the use of force against non-State actors in foreign territory (Syria), where the territorial State (Syria) is ‘unable or unwilling’ to stop the attacks itself. However, the legality of airstrikes occurring on Iraqi territory does not appear to have occasioned any discussion at all (although see this previous  post on the debate in the British House of Commons on authorising the use of force in Iraq). The presence of consent by the internationally recognised government of Iraq  to the airstrikes (see here) seems to make legality of foreign military action against Islamic State  under the jus ad bellum so obvious as not to require much commentary. However, a closer look at the scholarship on consent to the use of force reveals that the legality of what has variously been called ‘intervention by invitation’ or ‘military assistance on request’ has traditionally been more contentious than this simple statement would suggest. As discussed below, many scholars, and indeed some States, have suggested that there is a general prohibition on military assistance to governments in a situation of civil war or internal rebellion. This suggestion was particularly prominent in the Cold War era and seemed to represent an attempt to limit indirect uses of force by the superpowers. The rule is said to be derived from the prohibition of intervention in the internal affairs of other states, as well as from the principle of self-determination. The argument made by those in support of the rule is that intervention even with the consent of the government denies the people the right to govern their own affairs and to determine their political future. In short, on this view international law guarantees the right to rebel against the government. Others have doubted that a rule prohibiting assistance to governments in civil wars ever did emerge. This post seeks to demonstrate that recent state practice relating to the use of force in Iraq against Islamic State suggests that the evidence of opinio juris in relation to that rule is at present quite weak.

Support for a Rule Prohibiting Military Assistance to Governments in Civil Wars

According to a 1975 resolution of the Institut de Droit International on “The Principle of Non-Intervention in Civil Wars”, “[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” The resolution defines a “civil war” as a non-international armed conflict: a) between the established government of a State and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of the State, or b) between two or more groups contending for control of the State in the absence of an established government. Read the rest of this entry…

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part I

Published on December 8, 2014        Author: 

This is Part I of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights. This Part discusses the implications of temporary exclusion orders for the UK’s international obligations to British citizens. Part II, to be published tomorrow, will discuss the implications for its obligations to other States.

Introduction

The United Kingdom Government’s recent proposals to introduce a system of ‘temporary exclusion orders’ (TEOs) to be applied to British citizens raise a number of international legal issues, including (a) the responsibility of the State to its citizens; (b) the responsibility of the State to other States; and (c) the responsibility of the State to the international community of States at large when combatting terrorism.

In my view, the proposal for a system of TEOs to be applied to British citizens raises a host of insuperable legal and practical problems.

First, denying entry to the United Kingdom of British citizens suspected of involvement in international crimes or serious crimes of international concern, besides posing potential risks for other States, is likely incompatible with the duties which the State owes to its citizens, with the rights of other States, and with the obligation of the UK to prosecute certain offences (for which concerted international action is required).

Second, at the practical level, there is no reason to suppose that any other State would be prepared to accept the risks incidental to assuming responsibility for excluded British citizens. These risks include the security question – the possible threat to the community of the ‘host’ State – as well as the legal risks which attach to taking responsibility for the individuals concerned, whether or not they are detained. As the United Kingdom now recognizes its duty to admit its citizens on deportation, any potential host State would be well advised to go for this option.

Third, the implementation of TEOs in practice, though speculative at this stage, seems likely also to impede the UK’s ability to fulfil its international obligations to combat terrorism, effectively and in good faith, and the scheme certainly outwith the letter and the spirit of paragraph 6 of Security Council resolution 2178 (2014).

Finally, it is clear, in my opinion, that TEOs will engage the legal rights of those affected, under the common law (including the writ of habeas corpus), possibly under European Union law (cf. the judgments of the Grand Chamber in Rottman v Freistaat Bayern and Zambrano v Office national de l’emploi), and certainly under the European Convention on Human Rights. The ensuing and readily foreseeable litigation will lead to considerable wastage of resources and funds which would be better directed to implementation of the measures identified by the Security Council in resolution 2178 (2014). The TEO initiative, in my view, should be abandoned in the public interest. Read the rest of this entry…

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Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

Published on December 1, 2014        Author: 

These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

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MH 17 Goes to Strasbourg: Some Remarks on Obligations of Prevention, Foreseeability and Causation

Published on October 9, 2014        Author: 

pusztaiDavid Pusztai is a PhD candidate in international law at Gonville and Caius College, University of Cambridge.

The families of the German victims of the tragic MH 17 incident have reportedly decided to claim compensation from Ukraine. Although the details and the legal foundations of the claim have not been disclosed, what we know is that Professor Elmar Giemulla, representing the claimants, intends to bring this case before the European Court of Human Rights [ECtHR]. According to Professor Giemulla, “[e]ach state is responsible for the security of its air space […] If it is not able to [protect its air space] temporarily, it must close its air space. As that did not happen, Ukraine is liable for the damage.”

At the present stage many specific details are unclear, such as the admissibility of the claim or its articulation in the language of human rights law instead of international air law. There is, however, one apparently clear choice of legal strategy based on Professor Giemulla’s announcement: the identification of the internationally wrongful act in question, namely, Ukraine’s omission to close its airspace and to permit continued traffic.

Ukraine was indeed required to “take all practicable measures” to prevent offenses against the safety of international aviation under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Article 10). Given its sovereignty over its airspace, the customary duty to take reasonable steps to protect aliens within its territory required the same from Ukraine, just as its human rights obligations did under the European Convention of Human Rights. In Ilaşcu v. Moldova and Russiathe ECtHR held that the State’s positive obligations do not cease to exist when de facto it is not able to control a part of its territory. Ukraine, to use the Court’s language, “must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention”, even within the territory controlled by separatists (see para. 333 of Ilaşcu).

The legal basis of MH 17’s presence in Ukraine’s airspace was Article 1 of the 1944 International Air Services Transit Agreement, conferring the right on foreign aircraft engaged in scheduled international air services to fly across its territory (both Ukraine and Malaysia are parties to the Agreement). Closing the airspace would have been one of  the “legal means” available for Ukraine under the same Article, given that the exercise of this privilege (the “first freedom of the air”) is subject to the specific approval of Ukrainian authorities in “areas of active hostilities”according to the same Article 1. Further, Article 9 of the 1944 Chicago Convention on International Civil Aviation provides that States may, “for reasons of military necessity or public safety”, restrict or prohibit foreign aircraft from using certain parts of their airspace. One important constraint is that such restriction “shall be of a reasonable extent and location so as not to interfere unnecessarily with air navigation.”  In fact, Ukraine exercised this right before the MH 17 tragedy and closed its airspace up to flight level 320 (32 000 ft); MH 17 was flying at flight level 330.

The question whether Ukraine’s failure to completely close its airspace before the incident is in itself a breach of international law (may it be international air law, international human rights law or law of the treatment of aliens) is an intriguing one, yet the present post focuses on a second possible hurdle for this claim:  the issue of causation (for more on air law aspects, see Professor Abeyratne’s article here) . Article 31 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA] provides that the obligation to provide reparation is conditional upon a causal nexus between the internationally wrongful act and the damage. Did Ukraine’s decision to leave open its airspace above flight level 320 in the Dnipropetrovsk Flight Information Region cause the downing of MH 17?  Read the rest of this entry…

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Refusing to Negotiate Can Have Tragic Consequences

Published on September 9, 2014        Author: 

bellish2Jon Bellish is the Project Development Manager at the One Earth Future foundation and a fellow at the Ved Nanda Center for International & Comparative Law at the University of Denver Sturm College of Law.

On August 19, the Islamic State in Iraq and Syria (ISIS) released a video showing the beheading of American journalist James Foley, after the United States government refused to pay a nine-figure ransom. Foley’s execution prompted a debate about the propriety of paying ransoms:  on the one hand, paying can save the life of the captured hostage; on the other hand, paying ransoms fuels the very activity that gave rise to the need to pay a ransom in the first place.

Earlier this week, ISIS released another video, this one claiming to show the beheading of another American freelance journalist, Steven Sotloff. The video depicting Mr. Sotloff’s murder also showed another hostage, thought to be a British national, which has led to pressure on the U.K. government to negotiate with ISIS for his release. British Prime Minister David Cameron continues to remain faithful to the U.K.’s 40 year-old policy of not making concessions.

The United States also has a no-concessions policy and will not negotiate with hostage takers, and also encourages its citizens not to. Other countries have paid ransoms and secured the safe release of their citizens, including other journalists held by ISIS.

Which policy is the better one?  There appears to be momentum towards a ban on paying ransoms.  Because of the rise in kidnapping for ransom as a means of financing terrorism in recent years, in January 2014, the United Nations Security Council unanimously adopted a Resolution calling on states to refuse to pay ransoms to terrorists and also work with the private sector to respond to terrorist kidnappings without paying ransoms. On August 15, 2014, the Council issued Resolution 2170 directly addressing the various threats posed by ISIS. That Resolution expressed the Council’s determination to secure the safe release of hostages taken by terrorist groups without the payment of ransoms. Read the rest of this entry…

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The Legality of Turkey’s Possible Self-Defence Action against ISIS: A Response to Ashley Deeks

Published on June 25, 2014        Author: 

SinaSina Etezazian is a PhD Candidate at Monash Law School.

In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria).  She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter.  She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:

(1) the nationals in question face imminent threat of (or have suffered actual) injury;

(2) the host state is unwilling or unable to protect or rescue them; and

(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.

However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere  (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.

The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks

The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.

It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Read the rest of this entry…

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