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Home Archive for category "Syria" (Page 8)

Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs

Published on August 25, 2013        Author: 

In response to my recent post on whether the ICC can prosecute for use of chemical weapons in Syria,  my friend Kevin Jon Heller raises an important issue of treaty interpretation over at Opinio Juris. His comments to my previous post set out the issue quite clearly: should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty? Also Dov Jacobs, in a typically excellent post at Spreading the Jam, raises the point about whether the VCLT applies to the ICC Statute at all.

My answer to Kevin’s question is yes! Ordinary meaning of a treaty text should trump the supposed intention of the parties to the treaty. This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so. I agree with Dov’s point but only to a point. I do not think the VCLT rules on treaty interpretation should apply in their entirety to the ICC Statute but that does not mean they do not apply at all. I discussed these points as comments to my earlier post but thought it would be useful to make my responses a separate post.

The Usefulness/Uselessness of Drafting History and Intention of the Parties

The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.

Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two people who were members of a particular State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and that takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to particular provisions of the Rome Statute! Read the rest of this entry…

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Can the ICC Prosecute for Use of Chemical Weapons in Syria?

Published on August 23, 2013        Author: 

Recent reports regarding the possible use of chemical weapons in Syria are very disturbing indeed. If it turns out that there is concrete evidence that chemical weapons have been used, many will hope this will (finally) provoke action by the Security Council. There will inevitably be calls for accountability of those responsible and hopes that the Syrian situation will be referred to the International Criminal Court (ICC). But even if the Syrian situation is referred to the ICC, can the Court prosecute for use of chemical weapons in Syria.

As Syria is not a party to the Statute of the International Criminal Court, the ICC will only have jurisdiction over events in Syria if there is a Security Council referral (Arts 12 & 13, ICC Statute). If the Council were to refer the situation in Syria, it is possible that attacks involving the use of chemical weapons may be prosecuted as part of a charge of crimes against humanity or as part of the war crime of intentionally directing attacks against a civilian population. In such a case, the use of chemical weapons would not form part of the core of the charge but would simply be the means by which the attack has taken place. Proving use of chemical weapons would not be necessary to sustain either charge. However, it is interesting to consider whether the use of chemical weapons would itself be a crime under the ICC Statute in the Syrian situation. I think the answer is yes, but, perhaps surprisingly, the answer is not as straightforward as one might have thought or would have hoped.

Does the ICC Statute Specifically Prohibit the Use of Chemical Weapons?

Despite attempts to include a provision that would have specifically and expressly criminalised the use of chemical weapons, the ICC Statute adopted in Rome 1998 did not mention chemical weapons by name (see Bill Schabas’ post here). However, Article 8(2)(b) of the Statute dealing with war crimes includes 3 provisions that might be interpreted as applying to chemical weapons. Art. 8(2)(b)xvii makes it a war crime to employ “poison or poisoned weapons”. Para. xvii refers to “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. Para. xx makes it a war crime to employ “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. . . .” However, that last provision only prohibits those weapons if they are subject to a comprehensive prohibition and included in an annex to the Statute. Unfortunately, no annex to this provision has been agreed so no one can (yet) be prosecuted under para xx.

An argument has been made that the provisions of the ICC Statute listed above do not cover chemical and biological weapons Read the rest of this entry…

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A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…

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Does Use of Chemical Weapons Justify Intervention in Syria?

Published on April 27, 2013        Author: 

Over the last few days, various media outlets have reported that the US, UK and other countries believe that the Syrian government has used chemical weapons in the Syrian conflict (see BBC report). Apparently, there is not yet conclusive evidence of this and the US and others are investigating the matter. However, US President Obama has stated that use of chemical weapons would be a “game changer.”

“Horrific as it is when mortars are being fired on civilians and people are being indiscriminately killed, to use potential weapons of mass destruction on civilian populations crosses another line with respect to international norms and international law.

“All of us, not just the United States, but around the world, have to recognise how we cannot stand by and permit the systematic use of weapons like chemical weapons on civilian populations,” he said

So, the question is whether, as a matter of international law, the use of chemical weapons would justify intervention in Syria. Military intervention in Syria either directly (by the armed forces of other States) or indirectly (by providing arms to the Syrian opposition) would, in principle, be contrary to Article 2(4) of the United Nations Charter. The issue is whether there are any arguments that may be used to get round the prohibition of the use of force in that provision. In previous posts I have considered the legality of arming the opposition in Syria  (and also here) and after examining the different arguments that may be used, concluded that none of them has a strong basis in international law. It does not seem to me that the use of chemical weapons changes the position as a matter of international law.

The main argument that could be used to justify intervention if it is established that chemical weapons have been used would be humanitarian intervention. However, to my knowledge, the United States has never relied on this as a legal basis for intervention (I would be grateful for clarification if I am wrong on this). More importantly, most States reject the view that international law permits States to use force in other States for humanitarian reasons. Perhaps views on this are changing – for example it is not clear whether French and Arab support for arming the Syrian opposition are based on a humanitarian intervention type argument. Perhaps a use of chemical weapons might change the views of others such that we see the law changing. Read the rest of this entry…

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Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic

Published on April 13, 2013        Author: 

Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva.

The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. At a time when the situation in Syria was still marked by the crackdown of regime forces on protesters, the Human Rights Council decided in August 2011 to establish a Commission of Inquiry. The Commission is mandated to investigate all alleged violations of international human rights law since March 2011, to establish facts, and to identify perpetrators in order to ensure accountability in the future. Documenting human rights violations at the different stages of the crisis, the Commission of Inquiry made some remarkable findings, particularly on the law applicable to acts of violence committed by opposition forces. First, in a situation where international humanitarian law did not apply because the Commission was unable to establish the existence of an armed conflict, it found that armed groups were bound by human rights obligations constituting peremptory international law. Second, in its recent report of February 2013, the Commission found armed groups in violation of Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Read the rest of this entry…

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Would It Be Lawful For European (or other) States to Provide Arms to the Syrian Opposition?

Published on January 17, 2013        Author: 

A week ago (January 10), the United Kingdom’s Foreign Secretary, William Hague gave a speech in Parliament in which he appeared to suggest that European Union countries should consider providing arms to the opposition in Syria (see BBC reports and video here and here). From the lawyer’s perspective, one key question that arises is whether it would be lawful, under international law, for States to provide weapons to the Syrian opposition. In his speech William Hague stated that “we are determined that all our actions will uphold UK and international law, and support justice and accountability for the Syrian people themselves.” But would this be so were the UK to supply arms to the Syrian opposition? What arguments can be used to support the legality of the provision of arms and how strong are those arguments? In this post, I consider the possible legal arguments that may be made by European States. As I explain below, each of these arguments has considerable problems.

At present, European Union sanctions on Syria include a ban on transferring arms to that country. In his speech, Mr Hague noted that the EU sanctions regime on Syria includes an arms embargo and that in December the UK had argued that the sanctions regime should be reviewed after three months (i.e in March 2013) rather than after twelve months. He then went on to state that:

 “ . . . European countries now have the flexibility to consider taking additional steps to try to save lives if there is no progress in the near future. . . . [W]e must keep open options to help save lives in Syria and to assist opposition groups opposed to extremism if the violence continues. We should send a strong signal to Assad that all options are on the table. We will therefore seek to amend the EU sanctions so that the possibility of additional assistance is not closed off.”

The Illegality of Supporting Armed Opposition Groups

The starting point of analysis is that the provision of arms by one State to an armed opposition group fighting against another State is, in principle, a breach of the prohibition of the use of force set out in Art. 2(4) of the United Nations Charter, and also of the principle prohibiting intervention by States in the internal affairs of other States. Read the rest of this entry…

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Filed under: Syria, Use of Force
 

Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What Does this Mean and What Implications Does it Have?

Published on December 6, 2012        Author: 

A couple of weeks ago, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States that have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. It is reported that the US government will accord the same recognition, perhaps next week. In the summer of 2011, many States also recognised the Libyan National  Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis?  More importantly, does this form of recognition have legal consequences?

In particular, I wish to examine in this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through the NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to? Read the rest of this entry…

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Syrian and Turkish Military Activities and International Law

Published on October 11, 2012        Author: 

Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London

A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the  town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.

The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply.  The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.

Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?

The reaction of the NATO at its emergency session in Brussels on 3 October 2012  qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. Read the rest of this entry…

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Update on State Immunity

Published on September 7, 2012        Author: 

For those interested in recent developments in domestic state immunity acts, see earlier posts here and here, Canada has now announced that Iran will be formally listed as a state sponsor of terrorism. Canada has closed its embassy in Iran and declared personae non gratae all remaining Iranian diplomats in Canada. The news release from the Canadian Department of Foreign Affairs and International Trade (DFAIT) can be found here. Earlier attempts to sue Iran in Canada’s courts can be found herehere and here.

Update: In a separate news release, now available here, Canada has announced that it is listing Syria and Iran as state supporters of terrorism.

 

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International Commissions of Inquiry: A New Form of Adjudication?

Published on April 6, 2012        Author: 

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. Read the rest of this entry…

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