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Home Archive for category "Terrorism" (Page 3)

A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism

Published on July 14, 2016        Author: 

The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).

But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics. Read the rest of this entry…

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Is there a place for sovereign immunity in the fight against terrorism? The US Supreme Court says ‘no’ in Bank Markazi v. Peterson

Published on May 19, 2016        Author: 

The US Supreme Court’s judgment of 20 April 2016 in the case of Bank Markazi, aka The Central Bank of Iran, Petitioner v. Deborah Peterson, et al. highlights the increasingly isolated nature of US practice on sovereign immunity. As well as addressing issues of constitutional law, the judgment is also significant from an international law perspective; the highest jurisdiction of the US took a dangerous step toward the effective application of its terrorism exception to sovereign immunity.

The terrorism exception was introduced to the Foreign Sovereign Immunities Act of 1976 (FSIA) by an amendment made in 1996, and then further revised in 2008.  28 U.S.C. §1605A reads:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case […] in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The court can hear a case under this provision provided the foreign State has been designated as a State sponsoring terrorism by the Department of State and the claimant or the victim was at the time of the act a US national. This law aims at providing justice for victims through massive civil liability judgments, punishing foreign States committing or sponsoring terrorism, and discouraging them from doing so in the future.

In this post I focus not on the content of the judgment, but rather on the impact of US practice, which has recently seen all assets of the Iranian Central Bank located in the US subject to execution, on international law. Read the rest of this entry…

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New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 

Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

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The Establishment of a Special Court against Terrorism

Published on January 7, 2016        Author: 

The possibility of establishing an International Court against Terrorism is not entirely new, and has been addressed by scholars. However, the idea has recently regained momentum as a result of a joint Romanian-Spanish initiative (summarised here). In a recent event held at the T.M.C. Asser Instituut organised by the authors of this post, this possibility was thoroughly discussed. While indubitably commendable on the political level, such effort will face some very challenging legal issues. The aim of this post is to give a succinct account of these issues.

To begin with, a Special Court against Terrorism (SCT) will be confronted with a major question concerning its jurisdiction ratione materiae. What are the acts that would fall under its jurisdiction? What are the constitutive elements of a terrorist act subject to the SCT’s jurisdiction? Indeed, this issue is connected with a vexed question of international law, namely the definition of terrorism. As is well known, there is no generally accepted definition of terrorism under general international law. The perpetration of terrorist acts during wartime is (at least in part) covered by the law of armed conflict. Those acts may amount to war crimes in case of serious violations of international humanitarian law. The rules applicable to terrorist acts perpetrated in times of peace are more uncertain. The numerous UN conventions on terrorism only apply if the conduct in question falls under the relevant sector covered (e.g. nuclear terrorism).

The most famous attempt to define terrorism in times of peace in a general manner has been made by the Special Tribunal for Lebanon Read the rest of this entry…

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Self-defense Operations Against Armed Groups and the Jus in Bello

Published on December 16, 2015        Author: 

The Paris shootings and France’s reaction have once again triggered debate on states’ right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the ‘unwilling or unable’ test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marko Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person’s right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. Read the rest of this entry…

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Syria the Land of Impunity

Published on November 24, 2015        Author: 

FullSizeRenderThe Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict. Read the rest of this entry…

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

Published on March 19, 2015        Author: 

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

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

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

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

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

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

Published on February 26, 2015        Author: 

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

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

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

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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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‘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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