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Home Posts tagged "non-state armed groups"

R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

 

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…

 

Drone Attacks on Saudi Aramco Oil Installations

Published on September 17, 2019        Author: 

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not yet clear who was responsible for what he described as a “wanton violation of international law”’.

Regardless of who is responsible, the attacks are unlawful for a variety of reasons. For several of those same reasons and others, however, Saudi Arabia has no right to use military force outside its territory in a response. The limits on other states responding with military force or other forms of coercion are equally restricted. Lawful responses are available, ones that would avoid further ‘wanton’ law violations.

The important starting place of the analysis is with the fact that the Houthi rebels are not the government in effective control of Yemen, so they do not qualify as having authority to use military force on the basis of the one relevant justification in this case, United Nations Charter exception to Article 2(4), Article 51. The fact Saudi Arabia has been attacking them in Yemen does not give rise to their right to attack Saudi Arabia.

The most accurate characterization of the Houthis is as a belligerent party engaged in internal armed conflict or civil war from which all non-Yemeni armed groups—state or nonstate—are barred. Saudi Arabia has apparently based its participation in the Yemeni civil war on an invitation from Abdrabbuh Mansur Hadi. Hadi, however, fled and thereby lost effective control or status as the government in March 2015. The conflict remains undecided with the Houthis holding the capital Sanaa as well as territory that is home to more than half the population. While Hadi continues to claim ‘international recognition’ plus Yemen’s seat in the United Nations, under international law, the government for purposes of authorizing force in self-defence must for practical reasons and reasons of self-determination be based on the effective control rule as applied in the Tinoco Claims Arbitration (1 U.N. Rep. Int’l Arb. Awards 369 (1923). Read the rest of this entry…

 

The Ituri Conundrum: Qualifying Conflicts between an Occupying Power and an Autonomous Non-State Actor

Published on July 15, 2019        Author: 

Last week, Trial Chamber VI of the International Criminal Court (ICC) issued the long-awaited judgment in the Ntaganda case. The judges found the defendant guilty on all 18 counts, including the ICC’s first ever conviction for sexual slavery. Although the Chamber is yet to resolve matters related to sentencing and reparations, the decision marks an important milestone in the proceedings, which began with an arrest warrant issued back in August 2006 (Mr Ntaganda surrendered himself to the ICC in March 2013).

Readers of this blog will be familiar with the case as well as with some of the controversies surrounding its progress. In brief, Bosco Ntaganda was the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). The UPC/FPLC was one of the armed groups involved in the so-called Ituri conflict, which took place between 1999 and 2003 in the Ituri region in the north-eastern Democratic Republic of the Congo (DRC). Before the ICC, Mr Ntaganda was charged with 13 counts of war crimes and five counts of crimes against humanity, all allegedly committed in Ituri between 2002 and 2003.

The judgment, which fills over 500 pages, no doubt deserves careful scrutiny before any general pronouncements can be made as to its overall quality and rigour. Instead of analysing the judgment as a whole, this post focuses on a narrow question related to the Chamber’s legal qualification of the conflict in Ituri at the material time (discussed in paras 699–730 of the judgment). In particular, I am going to look at how international humanitarian law (IHL) qualifies conflicts between an occupying power and an autonomous non-State actor. The analysis builds on my research into complex conflict situations, which was published as part of my recent book on Internationalized Armed Conflicts in International Law (OUP 2018, especially chapter 3).

The situation in Ituri between 2002 and 2003 was notoriously convoluted, Read the rest of this entry…

 

The Limits of the Law: Putting Reparations into Practice

Published on July 2, 2019        Author: , , and

Reparations have recently been the hot topic from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible victims’ harm. Private law notions of restitution heavily imbue the concept. Indeed, the seminal case of Chorzów Factory by the Permanent Court of Justice laid the foundations for reparation in international law which ‘must, as far, as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’

In the past three decades we have seen an increase in reparation programmes from the German Compensation Scheme for Forced Labour, the UN Claims Commission, domestic reparation programmes such as Peru to jurisprudential strides of the Inter-American Court of Human Rights and the initial steps by the International Criminal Court. 2020 itself will mark fifteen years since the UN adoption of the Basic Principles for the Right to Remedy and Reparations for Gross Violations of Human Rights and Serious Breaches of International Humanitarian Law that sets the broad international standards for victims and states.

Despite these developments most victims of such violations do not receive reparations. Read the rest of this entry…

 

The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 

Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

 

Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts

Published on March 10, 2017        Author: 

 

A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.

The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?

International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be ‘regularly constituted’. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established ‘under the law’.

The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court’s policy concerns than sound legal reasoning. Read the rest of this entry…