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Strasbourg Judgment on the Beslan Hostage Crisis

Published on April 13, 2017        Author: 

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

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A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”

Published on April 13, 2017        Author: 

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

It is a great pleasure to contribute to this mini-symposium on Miles Jackson’s monograph on the notion of complicity in international law. The book is a further testament to the growing importance of questions of ‘shared responsibility’ in international law, ie the harmful cooperation of several actors.

In his elegantly written book, Miles Jackson makes several important contributions. In particular, he has brought a comparative approach to questions of complicity in international law. Whereas most existing books on complicity focus either on state responsibility or international criminal law, Jackson aims to transcend this boundary and develop an overarching framework for complicity in international law. While Jackson is of course mindful of the structural differences between the two areas, his comparative approach nonetheless calls for some further discussion.

A second most original aspect of the book is its move beyond an inter-state focus in its treatment of state complicity. Jackson analyses if and to what extent international law imposes state responsibility for complicity with non-state actors. In this latter regard, he convincingly argues against an approach based on attribution. Read the rest of this entry…

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New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”

Published on April 12, 2017        Author: 

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Recently, a number of studies have been published on complicity in international criminal law. In 2014, Neha Jain published a study on Perpetrators and Accessories in International Criminal Law. More recently, Marina Aksenova published a book on Complicity in International Criminal Law. As the titles of both books suggest, the main focus is on international criminal law (ICL). Aksenova, by way of contrast to individual complicity, does dedicate a chapter to State complicity.

Miles Jackson’s work, published in 2015, entitled Complicity in International Law takes a broader and a narrower approach than the books of Jain and Aksenova. While the latter conduct in-depth comparative criminal law analysis, Jackson’s focus is narrower; it is firmly on the international concept of complicity, as the title of the book appropriately suggests. His approach is broader in that, alongside individual complicity, he discusses State complicity. In comparative law terms, this could be qualified an ‘internal’ comparative analysis; discussing a legal concept of a different nature (criminal/individual v. civil/state) but within the same legal system: international law. This terminology is however misleading bearing in mind international law’s pluralist nature. The cross-disciplinary analysis of complicity, across ICL and IL, is more ‘external’ than any ICL-domestic criminal law comparison. And this is exactly the intriguing feature of the book: the juxtaposition of individual and state complicity. Do these concepts have enough in common to be usefully discussed within one and the same analytical framework? It is interesting to note that Helmut Aust in his fine and thorough study on Complicity and State Responsibility does not, by way of analogy, touch upon individual complicity in international law. Having said that, the fact that an emerging strand of scholarship approaches questions on international legal responsibility from a ‘shared perspective’ may be sufficient justification for this cross-disciplinary approach. Read the rest of this entry…

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“Complicity in International Law”: An Overview. Book Discussion

Published on April 12, 2017        Author: 

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

No one is ever accused of being complicit in something good. Across areas of law, complicity – the idea of participation in another’s wrong – has received increased attention in the last decade. To take one domestic jurisdiction, England and Wales, accessorial liability in private law and criminal law has been subject to detailed re-evaluation. In international criminal law, the acquittal of Momcilo Perisic by the ICTY Appeals Chamber brought deep recrimination and comment. And in the law of state responsibility, the complicity rule in Article 16 of the Articles on State Responsibility is increasingly invoked in the context of the arms trade, counter-terrorism, and development aid.

This increased attention forms the background to the book. My overarching aim is to understand and analyse how international law regulates individual and state complicity. This overarching aim is supplemented by, where appropriate, critique as to the scope of the relevant rules and a normative claim as to how complicity rules ought to be structured. To this end, the book is structured as follows. Part A builds an analytical framework for understanding complicity rules and defends the normative claim mentioned above. Part B addresses complicity in international criminal law, including complicit omissions and command responsibility. Part C does two things. First, it considers state participation in the wrongdoing of other states and tracks the move from what I call specific complicity rules to the general rule on aid or assistance in Article 16 of the Articles on State Responsibility. Second, it addresses state participation in the actions of non-state actors. In doing so, it appraises the claim that complicity has permeated the secondary rules on the attribution of conduct in international law and proposes a non-state analogue to the rule in Article 16. Part D concludes. Read the rest of this entry…

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Book Discussion on Miles Jackson’s “Complicity in International Law”

Published on April 11, 2017        Author: 

The blog is happy to announce that over the next few days, we will host a discussion on Miles Jackson’s book, Complicity in International Law.

Miles is a Departmental Lecturer at the University of Oxford. He will kick off the discussion tomorrow morning with an introductory post outlining the main arguments of his book. Comments by Elies van Sliedregt (Professor of International and Comparative Criminal Law at the University of Leeds), Helmut Philipp Aust (Professor of Law at the Freie Universität Berlin), and Elizabeth Wilmshurst (Distinguished Fellow, International Law, at Chatham House) will follow. Miles will bring the discussion to a close on Friday with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

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Filed under: EJIL Analysis
 

New Addition to our Team of Editors

Published on April 11, 2017        Author: 

It is such a pleasure to announce that Anthea Roberts has accepted the invitation to join the team of EJIL:Talk! Contributing Editors. Anthea is an Associate Professor at the School of Regulation and Global Governance (RegNet) at the Australian National University.

Before returning to Australia, Anthea was an Associate Professor at the London School of Economics, a Visiting Professor at Harvard Law School and a Professor at Columbia Law School. In addition to her ANU appointment, she is also a Visiting Professor on the Masters of International Dispute Settlement at the Graduate Institute and the University of Geneva. Anthea is a leading voice across many areas of public international law, having published on the sources of international law, investment treaty law and arbitration, use of force, jurisdiction, among other topics, in the leading international law journals. She has twice been awarded the annual Francis Deák Prize for the best article published in the American Journal of International Law by a younger scholar .

In addition to being on the editorial board of the European Journal of International Law, she is also on the editorial board of the American Journal of International Law, the Journal of World Trade and Investment, and ICSID Review. She is also a Contributing Editor for the International Economic and Policy Law Blog and a Reporter for the Restatement (Fourth) of the Foreign Relations Law of the United States. Before beginning her academic career, Anthea worked in private legal practice, served as an Associate to the Chief Justice of the Australian High Court and clerked at the International Court of Justice.

Anthea has already written a number of posts for EJIL:Talk! (see here and here), including that of yesterday. We very much welcome her contributions to the blog! Read the rest of this entry…

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Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

Read the rest of this entry…

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Syrian Strikes: A Singular Exception or a Pattern and a Precedent?

Published on April 10, 2017        Author: 

In a recent post, Monica Hakimi argued that, rather than crafting a legal justification for the United States’ use of force in Syria, we should instead treat it as a “one-off incident for addressing conduct that, if not deterred, could be destabilizing,” much like occurred in the United States’ Baghdad strikes in 1993. In order not to further undermine the Article 2(4) prohibition on the use of force, the United States should at the same time “underscore its overall commitment to and investment in” the law governing the use of force so as to avoid the impression that “the United States does not view the jus ad bellum, and maybe international law more generally, as normatively relevant in the global order.”

I do not want to take issue with whether or not the United States should have taken action in this case, or whether or not this use of force supports an existing or emerging doctrine of unilateral humanitarian intervention. Others are addressing these points (see, for example, Koh). Rather, as I set out previously in a paper on Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?, I want to register concerns about the argument that states can violate international law and yet simultaneously seek to preserve the Charter prohibition by reaffirming Article 2(4) while characterizing their own conduct as a singular exception.

First of all, this kind of violation of Article 2(4) is not a one-off incident. There is something ironic about arguing that we should treat this violation as a singular use of force much like we treated another violation of Article 2(4) by the United States. In one sense, every violation is singular because every violation has its own unique facts. But, in another sense, when singular violations occur again and again, they no longer look like singular violations … they look like a pattern. Whether something appears to be singular or a pattern often depends on the level of generality one employs in making the assessment. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force
 

Announcements: Laureate Program in International Law Conference; CfP The Legitimacy of Unseen Actors in International Adjudication; OTJR@10 Workshop; ITLOS Capacity-Building and Training Programme; Munich Advance Course in International Law

Published on April 9, 2017        Author: 

1. Laureate Program in International Law Conference. The Laureate Program in International Law is hosting a conference at Melbourne Law School from 24 – 25 August. Entitled ‘1917: Revolution, Intervention and International Law’, the conference marks the 100-year anniversary of the October Revolution and the passage of the revolutionary Mexican constitution. Through drawing together a range of scholars and disciplines, the conference will explore the significance of these two revolutions for international legal fields, doctrines, and histories. It will also seek to understand the place of revolution in, and its relationship to, the international legal order. Further details and a call for papers can be found here. Abstracts should be submitted to Ntina Tzouvala (konstantina.tzouvala {at} unimelb.edu(.)au) by 1 May 2017. Successful applicants will be notified of the outcome by mid-May.

2. Conference on the Legitimacy of Unseen Actors in International Adjudication. On 26 and 27 October, the Conference on the Legitimacy of Unseen Actors in International Adjudication will take place in The Hague, co-organised by the PluriCourts Centre of Excellence (Oslo University) and the Europa Instituut (Leiden University). ‘Unseen actors’ are central to the ‘institutional makeup’ of international courts and tribunals as registries and secretariats, law clerks and legal officers may exert varying levels of influence on the judicial process. At this conference, legal and political science scholars and members of adjudicatory institutions will consider and discuss the legitimacy of assigning ‘unseen actors’ certain roles in the judicial process as well as the implications thereof for the legitimacy of the dispute settlement mechanism as such. The Call for Papers can be found here. The deadline for submission of abstracts via email to unseenactors {at} jus.uio(.)no is 31 May. Fee free to email Prof. dr. Freya Baetens (freya.baetens {at} jus.uio(.)no) for further information.

3. OTJR@10 Workshop: ‘Rethinking Transitional Justice: What Does It Mean Today?’ The Oxford Transitional Justice Research group is organising a PhD and early-career researchers workshop to mark its 10-year anniversary. The workshop will be held in Oxford on 22 June 2017 and will provide an opportunity for networking and exchanging ideas with other postgraduates and practitioners working on transitional justice issues. We will host Pablo de Greiff, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, as our keynote speaker. Researchers in international law and other disciplines are encouraged to apply. More info here.

4. ITLOS: 2017/2018 Capacity-Building and Training Programme. The International Tribunal for the Law of the Sea is currently seeking applications for the 2017-2018 edition of its capacity-building and training programme on dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS). This is a nine-month programme starting in July 2017, which takes place at the seat of the Tribunal in Hamburg, Germany. The application deadline for this year’s programme is 20 April 2017. The Tribunal is looking for 7 junior to mid-level government officials or researchers between the ages of 25 and 40 dealing with ocean affairs or sea-related matters. The programme provides participants with a unique opportunity to develop their legal skills and deepen their practical knowledge of dispute settlement in the law of the sea under UNCLOS. All participants’ costs, including travel, accommodation and medical insurance are covered by the Nippon Foundation. For detailed information about the programme and how to apply, see here or contact the programme coordinator (Ms Shakeri) at training {at} itlos(.)org.

5. Munich Advance Course in International Law. The Munich Advanced Course in International Law (MACIL) is a summer school held at Ludwig Maximilian University Munich (Germany) and dedicated to questions of public international law. Its next session, entitled ‘Human Rights – Keystone or Just another Brick in the Architecture of International Law?’, will take place in late July/early August 2017. Seminars will aim at discussing the role of human rights law within the broader context of the international legal order, both from a theoretical perspective and from the point of view of other ‘competing’ regimes of international law (like trade, investment, humanitarian or environmental law). The 2017 faculty is going to include Samantha Besson (Fribourg, Switzerland); Robert Cryer (Birmingham, UK); Malgosia Fitzmaurice (Queen Mary, UK); Markus Krajewski (Erlangen-Nuernberg, Germany); Daniel Moeckli (Zurich, Switzerland); Brunno Simma (former judge at the ICJ; Munich and Michigan, USA); Christian Walter (Munich, Germany). Students of international law, young academics and practitioners of international law or related fields are warmly invited to apply. Deadline for application is 1 May 2017. For further information please refer to the MACIL homepage or contact the MACIL team (contact {at} macil-misu(.)de).

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US Strikes against Syria and the Implications for the Jus ad Bellum

Published on April 7, 2017        Author: 

The blogosphere is abuzz with reactions to the U.S. strikes against Syria. My guess is that most international lawyers will agree with Marko Milanovic that the strikes were unlawful. Article 2(4) of the Charter prohibits the use of force by one state against another, except in self-defense or with the UN Security Council’s authorization. Neither exception seems to apply here. Moreover, although some have argued that international law also recognizes (or is in the process of recognizing) an exception for humanitarian interventions, that view is not widely endorsed. In any event, it would not obviously apply in Syria. Even Harold Koh — who has articulated one of the best justifications for unilateral humanitarian interventions — has recognized that “[i]t is too early to judge” whether the Syria strikes are lawful. In particular, it is not clear that the strikes “would demonstrably improve the humanitarian situation” in Syria.

My goal in this post is not to advance a different position on the law. It is instead to examine the implications of the U.S. action for the broader legal order.

A. Supporting the Prohibition of Chemical Weapons

Chemical weapons are not the only means with which the Assad government has committed atrocities, but they are a particularly barbaric and indiscriminate means. Assad’s repeat use of them, with apparent impunity, has weakened the absolute prohibition of chemical weapons — and with it, international humanitarian law (IHL) more generally. Those who are not steeped in international law inevitably interpret this fact pattern to mean that, IHL notwithstanding, anything goes in wartime, at least for those who have the right allies.

The U.S. strikes were intended to convey a different message – to show that the world is willing to enforce, however imperfectly and inconsistently, the prohibition of chemical weapons. To be sure, the humanitarian crisis in Syria will almost certainly continue. The point was not to address that crisis as a whole but rather to say that some things are never permissible, even in wartime. Indeed, most states that have expressly commented on the incident have suggested that they, too, view the strikes as appropriate. As such, the strikes are likely to have the effect of bolstering a prohibition that had been deteriorating. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force