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Home Archive for category "Terrorism"

UK Extraterritorial Financial Sanctions: Too Much, Too Little, Too Late?

Published on July 17, 2018        Author: 
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The US practice of the extraterritorial application of sanctions was criticised for years as, at best, the illegitimate abuse of its particular position in the world’s economy. Despite its fully comparable position in international finance, the United Kingdom was shielded from such criticism predominantly thanks to the transfer of respective decision-making to Brussels. The nature and scope of sanctions were delineated by EU laws. As the UK prepares its (financial) sanctions regime for Brexit, could it draw criticism similar to the US for both giving too broad discretionary powers to the government and preventing it from meeting UK international obligations at the same time? I suggest the new regime for the extraterritorial application of sanctions possibly opens the UK to international liability for, both, the lack of a legal basis for a legal restriction upon states as well as inevitable omissions to prevent gross violations of international law.

Since analysis of legal sanctions under international law is a very complex, multi-stage exercise, I focused on relatively easier cases of discretionary goals of foreign policy and extraterritorial sanctions, where the legal threshold for an internationally wrongful act is lower. Accordingly, I highlight the normative basis for adopting financial sanctions against third-state persons not covered by exceptions, British BITs, or the most relevant multilateral treaties. As for possible breaches of international law by omission, I focus on tolerating the provision of financial services contributing towards gross violations of international law. Because of length limitations, I do not discuss anti-money laundering per se, which is subject to yet another chapter of the law in question.

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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: 
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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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JASTA Keeps Saudi Arabia on Trial for 9/11 Terror Attacks: The US and its Foreign Sovereign Immunity Issue

Published on April 17, 2018        Author:  and
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In its decision of 28 March 2018 the US District Court for the Southern District of New York denied Saudi Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the September 11 terror attacks, In Re Terrorist Attacks on September 11, 2001 (03-MDL-1570(GBD)) (“the Decision”). In doing so, the Court applied the Justice Against Sponsors of Terrorism Act, 28 USC §1605B (“JASTA”), for the first time since it was passed by the US Congress on 27 September 2016.

The JASTA created, inter alia, a new exception to the Foreign Sovereign Immunity Act, 28 USC §1602 (“FSIA”), to the effect that sovereign immunity under the FSIA is waived:

“in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by –

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless of where the tortious act or acts of the foreign state occurred.” (“JASTA exception”)

The Bill generated significant debate both within and outside the US, and whilst under consideration by Congress, Victor Grandaubert warned in a well-reasoned post on this blog that if passed the JASTA would “entrench the isolated and unlawful position of the US in this area”. We take the opportunity of this first application of the Act to provide an update on the recent developments. The post will examine first the Decision, and will then move to address the position of the US in relation to customary international law on sovereign immunity. Read the rest of this entry…

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Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Published on March 13, 2018        Author:  and
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In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. Read the rest of this entry…

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The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

Published on January 30, 2018        Author: 
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Operation Olive Branch

On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.

Non-state armed attacks?

First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). Read the rest of this entry…

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War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

Published on November 9, 2017        Author: 
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The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why. Read the rest of this entry…

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Guantanamo Surrealism

Published on November 2, 2017        Author: 
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The surrealism of the moment defies description. Who would have thought, even only a short while ago, that on a nice November morning a US military commission judge in Guantanamo would be holding a Marine general and chief defense counsel for the commissions in contempt, sentencing him to 21 days of confinement in, well, Guantanamo? Who would have thought that on that same day the President of the United States would be deriding the US criminal justice system as a “joke” and a “laughingstock,” while suggesting that the “animal” who perpetrated a deadly vehicular terrorist attack in New York City be sent to that same Guantanamo, with its oh-so-successful, cost-effective military commissions? That he and his White House would, in 2017, be calling this individual an “enemy combatant”?  That he would be joined in doing so by prominent US senators, lamenting the fact that the individual concerned has not yet been shipped off to Gitmo, despite the fact that he essentially committed his crime in full public view and on camera, so that the likelihood of his acquittal before any regular civilian court would effectively be nil? 

Surrealism is by definition unexpected. Slippery slopes  are not. They can often be seen from a very, very long way off. And many of us have spent years warning some of our US colleagues of the dangers of some of the theories they have been advancing in the pursuit of the global conflict against terror. Just a few weeks ago we had just such an “IHL party” on the blog, provoked by a post of Ryan Goodman on Just Security. I pointed out in that discussion that while there was a measure of agreement on the geographic scope of application of IHL, that issue was part of a broader package, and that some items in that package – above all the definition of the relevant armed conflict and the classification of individuals with a nexus to that conflict – continued to attract controversy, inter alia because of the manifest possibility of abuse of some of the lines of argument put forward and their lack of basis in conventional and customary IHL.

So I therefore have a question for our American colleagues, including my friends on Just Security and Lawfare – let us assume that the facts about the New York terrorist continue to be as we know them today, i.e. that he essentially self-radicalized by looking at ISIS materials on the Internet and that he, beyond professing allegiance to ISIS, was at no point subject to the chain of command of that armed group fighting in Iraq and Syria. On these facts, are we in agreement that there is no way that this individual could be qualified, under the relevant rules of international law, as a fighter in any IHL-cognizable armed conflict? I am not asking what consequences this would have under US domestic law, including the AUMF; I am only interested in IHL. Under IHL, it seems to me that there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual has a nexus to any armed conflict/was a member of a non-state armed group engaging in hostilities in such a conflict. He is not an “enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal. This is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today. Do we agree? 

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On Whether IHL Applies to Drone Strikes Outside ‘Areas of Active Hostilities’: A Response to Ryan Goodman

Published on October 5, 2017        Author: 
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Over on Just Security, Ryan Goodman has an excellent post entitled Why the Laws of War Apply to Drone Strikes Outside “Areas of Active Hostilities” (A Memo to the Human Rights Community). In sum, Ryan argues that human rights activists have been too radical in their critique of US drone strike policy, as reflected in the Presidential Policy Guidance adopted during the Obama administration, and in the context of the Trump administration’s recent proposal to revise this standing policy and relax some of its requirements, especially with regard to the procedure for authorizing lethal strikes. In particular, Ryan argues that human rights activists have been portraying as clearly unlawful decisions which legally fall within the bounds of reasonable disagreement.

In that regard, Ryan argues – persuasively in my view – that the mere fact that a drone strike takes place outside an area of active hostilities under the PPG does not mean that the strike takes place outside armed conflict under IHL. The former, as Ryan correctly notes, is not even a legal term of art. I also agree with Ryan that some US positions that used to be regarded as novel or anomalous have become mainstream with time, in part through the acceptance of these positions by European and other states, by the ICRC and scholars – viz., for instance, the idea of ‘spillover’ NIACs (for more on the operation of this mainstreaming process see here; on spillover NIACs see here).

That said, Ryan in some respects significantly overstates his argument. Yes, states have accepted the idea that they can be engaged in an armed conflict with a terrorist group – but I would say that this really was never in doubt. What was in doubt is whether this NIAC can be global in scope, and this US position has not been mainstreamed – or at least I am unaware of any other state which agrees with it. What do I mean by this?

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Port State Jurisdiction Beyond Oceans Governance: The Closure of Ports to Qatar in the 2017 ‘Gulf Crisis’

Published on July 3, 2017        Author: 
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5 June 2017 witnessed numerous states severing diplomatic ties with Qatar, including Bahrain, Egypt, Saudi Arabia (see also part 2, part 3) and the United Arab Emirates (UAE). These were later joined by the Comoros, Libya (Provisional Government), the Maldives, Mauritania and Yemen. Others have downgraded relations with Qatar to a lesser degree (e.g. recalling ambassadors), including Chad, Djibouti, Eritrea, Jordan, Niger and Senegal. However, as a sign of rising tensions, the measures adopted go further than the previous 2014 breakdown of relations. A number of territorial restrictions in the Persian Gulf region were adopted against persons, vessels or aircraft with a link to Qatar. The most interesting measures for discussion here are those adopted in a port state capacity. The key question concerns the jurisdictional basis on which these port states have taken measures against foreign vessels – especially given the imposition of denial of entry on the basis of purely extraterritorial conduct (visited Qatar), or future conduct (destined for Qatar)?

Since adoption of the United Nations Convention on the Law of the Sea (UNCLOS), the formal role of port states in ocean governance has been increasing. Port states had played a role prior to UNCLOS, focused upon issues of marine pollution, but this has been expanded upon by subsequent treaties further addressing pollution, labour standards and the fight against illegal, unreported and unregulated (IUU) fishing (on which see the recent post by Diane Desierto). In this post I cover a further direction in the use of regional port state measures that has been highlighted by recent events within the Persian Gulf: the shaping of another state’s foreign and domestic policies.

A port state may be defined as the state with territorial sovereignty over a port to which a foreign vessel is requesting entry, or currently resides within. The United Arab Emirates (UAE), as a port state, closed all seaports to Qatari vessels and banned all Qatari means of transportation (sea and air) from entering or leaving its territory. To implement this decision, Fujairah, Abu Dhabi (and also see here), Ras Al Khaimah, and Sharjah ports have prohibited entry to Qatari flagged or owned vessels, all vessels destined to, or coming from, Qatari ports, and all vessels carrying cargo destined for or coming from Qatar (subsequently, slightly eased). Bahrain (and also see here) similarly closed all its ports to vessels coming from or going to Qatar. Saudi Arabia (and also see here) closed all sea ports to Qatari flagged or owned vessels, and denied port unloading/loading services to all vessels carrying cargo to/from Qatar. While UAE stated it would prevent “means of transportation” leaving its territory, reports only indicate containers being stuck in port. In contrast, the Saudi Port Authority confirmed vessels “destined for Qatar” will not be given clearance to leave port. According to Intertanko, there are “conflicting reports regarding the use of ports in Egypt”. In contrast, other port states, including Iran and Oman, who object to the economic pressures imposed, have offered access and use of their ports necessary for vessels destined to Qatar. Read the rest of this entry…

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Sanctioning Qatar: Coercive interference in the State’s domaine réservé?

Published on June 30, 2017        Author:  and
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On 23 May, the Qatar News Agency published content attributing statements to Qatar’s Emir which laid bare simmering regional sensitivities and quickly escalated into a full-blown diplomatic row between Qatar and other regional Powers.

Indeed, on Monday 5 June, Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt adopted what has been dubbed a ‘diplomatic and economic blockade’ (to the annoyance of some). Not only did these States close their land, naval and aerial borders for travel and transport to and from Qatar, the three Gulf States also appeared to expel Qatari diplomats and order (some) Qatari citizens to leave their territory within 14 days. In addition, websites from the Al Jazeera Media Network, as well as other Qatari newspapers, were blocked and offices were shut down in several countries. At the end of a feverish week, on Friday 9 June, targeted sanctions were furthermore adopted against Qatari organizations and nationals believed to have links to Islamist militancy.

In justification of the measures, the sanctioning States invoked the Gulf Cooperation Council’s 2013 Riyadh Agreement and its implementation mechanisms as well as the Comprehensive Agreement of 2014. Although the contents of these agreements are not public, it is believed that the Gulf States expected Qatar to curtail its support to groups that purportedly pose a threat to the region’s stability, such as Hamas and the Muslim Brotherhood. Read the rest of this entry…

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