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Home Archive for category "Syria"

Turkey’s Military Operation in Syria: A Freedom of Expression Perspective

Published on October 28, 2019        Author: 

There is no doubt that Turkey’s use of force in Syria and the unfolding consequences thereof should generate much legal debate and analysis. The legal issues are broad. They cover primary norms under international law on the use of force, international humanitarian law, international human rights law and international refugee law. In addition, the relationship between the Turkish Armed Forces and Free Syria Army (or Syria National Army as recently renamed in Turkey) engages questions of attribution alongside individual criminal responsibility under international law. Alongside this long list of issues of engaging the state responsibility of Turkey, we can certainly ask whether any third-state responsibility is engaged and whether other states have been facilitating acts, which would have been unlawful if they carried them out themselves.

Some of these issues have been addressed on EJIL Talk!  here and here, and, elsewhere, here and here. Some have generated responses and counter claims here and here. My aim here is to highlight one, as yet, unaddressed aspect — freedom of expression and, academic freedom as a lex specialis of freedom of expression.

Discussions about Turkey’s military actions on international law blogs thus far have not been written by Turkish international lawyers, with one exception: a reply to a post on EJIL Talk! defending Turkey’s justifications for the lawfulness of the use of force under ius ad bellum.  My hunt for academic seminars held on these issues at any university in Turkey has drawn only blanks. Not one single academic seminar, not one single debate has been held to discuss multilayered legal issues around a major military operation. This is curious. Why do Turkish international lawyers not partake in the opportunity to debate and discuss international law in real time, and use their linguistic advantage to access key sources?

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Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

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Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

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A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

Published on October 14, 2019        Author: 

Since last week Turkey has been using massive military force in Syria. Turkey has decided to call her military operation ‘Peace Spring’. ‘Peace Spring’ seems to be even more extensive than ‘Olive Branch’, Turkey’s preceding invasion of Syria. ‘Peace Spring’ has already resulted in the flight of tens of thousands of civilians. Worldwide, observers fear that ‘Peace Spring’ could lead to a humanitarian catastrophe in Syria, a country whose people have been suffering from unspeakable pain for many years now. There is also widespread fear that the so-called ‘Islamic State’ could benefit from ‘Peace Spring’ as the use of force is being directed against precisely those Kurdish forces that had helped keeping the ‘Islamic State’ at bay. It thus appears that a depressingly large number of indications suggest that the name ‘Peace Spring’ is a cynical euphemism for a brutal military course of action possibly ending in a bloody disaster.     

In her letter to the United Nations, Turkey invokes her right of self-defence, as recognized in Article 51 of the UN Charter, ‘to counter’ an ‘imminent terrorist threat’. The ‘facts’ that Turkey refers to in this letter are essentially those:

‘In particular, PKK/PYD/YPG units close to Turkish borders in the north-east of Syria, continue to be a source of direct and imminent threat as they opened harassment fire on Turkish border posts, by also using snipers and advanced weaponry such as anti-tank guided missiles.’

Under international law, the right of self-defence exists if an armed attack against another State occurs. In such a case, cross-border defensive forcible action is permissible to the extent that the action is necessary and proportional to counter the attack. The existence of a right of anticipatory self-defence has long been controversial. An arguable case can be made that such a right exists if an armed attack against a State is imminent. It is also a matter of fierce debate whether a right of self-defence exists in case of a non-State armed attack and whether it may justify forcible defensive action on the territory of another State. An arguable case can be made that such a right exists where a State is either unwilling or unable to prevent a non-State group from conducting a large-scale cross-border armed attack from the territory of that State – under strict conditions of proportionality.

Even on the basis of such a broad understanding of the right of self-defence, which is being fiercely rejected by a significant number of States and by a significant number of highly respected international lawyers as being unduly permissive, it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. Read the rest of this entry…

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“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

Published on October 2, 2019        Author: 

“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

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Shamima Begum may be a Bangladeshi Citizen After All

Published on March 14, 2019        Author: 

In 2015, Ms Shamima Begum, then a 15-year-old British citizen living in London, travelled to Syria to join the so-called Islamic State. Her fate was unknown until recently when Ms Begum was discovered in a refugee camp in Syria. On 19 February 2019, the British Home Office in a letter delivered to Ms Begum’s family, revoked her British citizenship. Now, the 19-year-old wishes to return to the United Kingdom (UK). The aim of this piece is to examine whether Ms Begum is a Bangladeshi citizen as has been claimed by the Home Office, and subsequently contradicted by the Government of Bangladesh.

Article 8(1) of the 1954 Convention relating to the Status of Stateless Persons, to which the UK is a State-party (but not Bangladesh), directs a State, in this case the  UK, to not render a person stateless by depriving him or her of their nationality.

In the UK, Section 40(2) of the British Nationality Act, 1981 states that a person may be deprived of his or her citizenship if such ‘deprivation is conducive to the public good’. Furthermore, Section 40(4) of the same Act mandates that an order to deprive a person of his or her citizenship must not make that person stateless. Section 40(4) is basically the domestic reproduction of Article 8(1) of the 1954 Convention. Hence, the Home Office is authorised by law to revoke the citizenship of an individual provided it does not render that individual stateless. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria
 

Private Investigators Helped Germany Arrest Two Former Syrian Secret Service Officers

Published on February 26, 2019        Author: 

On 7 February 2019, the investigative judge of the German Federal Court of Justice issued arrest warrants against two former secret service officers from the Syrian government, since they were strongly suspected of having carried out or aided torture and crimes against humanity. On 12 February 2019, the German Federal Prosecutor – through officers of the Federal Criminal Police Office (Bundeskriminalamt) – arrested the two suspects in Berlin and Zweibrücken. As a result of the creation of a French-German Joint Investigation Team, another Syrian alleged to have worked for the secret service was arrested by Parisian prosecutors. This is the first time western criminal prosecutors have arrested alleged torturers working for Bashar al-Assad.

The strong suspicion that the suspects had carried out the alleged crimes is based – to a considerable extent – on evidence that has been collected by private individuals and entities: First, the photographs taken by the “Group Caesar”, the code name of a former Syrian military photographer who brought over 50,000 photographs out of the country, 28,000 of which show detainees in Syrian prisons killed by torture, outright execution, disease, malnutrition or other ill-treatment. Second, the assistance of the European Center for Constitutional and Human Rights, which provided the testimony from six survivors of torture in Al Khatib detention center in Damascus. Third, the Commission for International Justice and Accountability (CIJA), who provided documentary evidence against one of the two former secret service officers. Nerma Jelacic, CIJA’s deputy director, announced on Twitter: “#CIJA is proud to have supported the #German prosecutor’s investigation and arrest of the first high-ranking Syrian regime official”.

This shows that the appeal of private investigations has now reached the level of International Criminal Justice. Of course, investigatory work done by private non-state agencies is not novel, considering that there are countless Non-Governmental Organisations (NGOs) and Inter-Governmental Organisations (IGOs) who interview witnesses and collect documents. The aim is that this material may be used in International(ised) Criminal Tribunals or before a national court trying international crimes. Private investigations are indispensable on the international level, and privately funded international human rights organisations have been crucial to hold perpetrators of international crimes accountable. Read the rest of this entry…

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The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed territories

Published on June 8, 2018        Author: 

Factual Background and Legal Issue

The extensive air strikes launched by Israel on Iranian forces and assets across Syria in the early morning of 10 May 2018 present a complex case study which deserves proper legal scrutiny. According to the reconstruction given by the Israel Defence Forces (IDF), the strikes were decided in retaliation for a rocket barrage fired some hours earlier from Syrian territory on IDF forward outposts in the Israeli-controlled Golan. Despite denials by Iranian officials of any direct involvement of their military in Syria, the rockets were immediately attributed by the IDF to the Quds Force, the special unit of the Iranian Revolutionary Guards in charge of extraterritorial operations.

Reacting to the alleged Iranian attack and to Syria and Iran’s condemnation of Israel’s response as an act of aggression against Syria, the governments of the United States, the United Kingdom and Germany explicitly referred to Israel’s right to act in self-defence against Iran. The same Israeli Prime Minister Netanyahu, before the operation could take place, had invoked ‘Israel’s obligation and right to defend itself against Iranian aggression from Syrian territory’. This claim, although phrased in legal terms, was not formalised in an Article 51 letter filed with the UN Security Council, which should include a justification for the use of force against both Syria (whose territorial integrity was violated) and Iran (whose forces and facilities were targeted). A self-defence argument however would raise in the present case a legal issue related to the status of the territory attacked: the Golan Heights, occupied by Israel after the Six-Day War in 1967 and annexed in 1981. Can an annexing state invoke Article 51 UN Charter to justify the use of force in self-defence against an armed attack directed exclusively at a territory that it annexed? This post submits that the answer to this question, which appears unsettled and largely unexplored, cannot overlook the situation of manifest illegality that a self-defence argument would purport to preserve and protract. Read the rest of this entry…

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Pigs, Positivism, and the Jus ad Bellum

Published on April 27, 2018        Author: 

Now that the dust from the U.S.–U.K.–French operation against Syria has settled, I want to follow up on something I said when news of it first broke. Like most commentators, I argued that the operation did not satisfy the formal legal doctrine on the use of force. By this I meant that it was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not justifiable under any of the recognized exceptions. Yet I also contended that the doctrine was not the end of the legal inquiry. Given how the jus ad bellum actually operates, I argued, “the best answer to the question of whether the Syria strikes were lawful is not a simple ‘yes’ or ‘no.’”

Many international lawyers took issue with that claim, so I want to defend it—and use it to expose what I consider to be a fairly fundamental flaw in how the jus ad bellum is usually analyzed. To do this, I’ll take a detour through one of my all-time favorite law review articles: Hendrik Hartog’s Pigs and Positivism.

Pigs and Positivism

Hartog’s article is not about international law. It uses the 19th century practice of keeping pigs in New York City as a case study for thinking about law and legal analysis. Here is the background: pigs were once an ordinary and integral part of life in New York City. People ate the pigs, and the pigs ate the waste that lined city streets. But pigs were “mean, dangerous, and uncontrollable beasts” (p. 902). In 1819, after various efforts to legislate against them had failed, a court determined, in a case called People v. Harriett, that loose pigs in public streets were a public nuisance and, for that reason, prohibited. The decision established that “[t]o keep pigs on municipal streets was to commit a crime” (p. 920). Read the rest of this entry…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 

Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

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