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Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Thu, 10/12/2017 - 11:30

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind.

I claim that Spain is not allowed to use disproportionate violence against separatists. Surely, there is ─ under the law as it stands ─, no general ius contra bellum internum. The prohibition of the use of military force (as enshrined in Art. 2(4) of the UN Charter and parallel customary law) normally applies only in the relations between states. In addition, the use of military force is prohibited in constellations of “green lines”, among stabilised de facto regimes, or when a Security Council resolution specifically prohibits resort to force, or where separatist armed group and a central government committed themselves not to use force in a treaty of armistice (e.g. as in Georgia in its relations to separatist Abkhazia and South Ossetia). (See for this legal proposition GA Res. 2625 (XXV) of 24 October 1970: “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect”; the Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1-8 of 19 December 2005, para. 10; Independent International Fact-Finding Mission on the Conflict in Georgia, report (‘Tagliavini-Report’) of September 2009, Volume II Chap. 6, at 239-241 and 291).

But this does not mean that the parent state may repress a rebellious or secessionist group by police or military action without legal constraints flowing, inter alia, from international law. Internationally recognised human rights constitute the yardstick in constellations of internal unrest below the threshold of non-international armed conflict (cf. Art. 1(2) AP II of 1977 to the Geneva Conventions of 1949). Should the situation in Catalonia escalate to a NIAC, the pertinent rules of international humanitarian law will apply.

No “remedial secession” here

Finally, just a reminder that the preconditions for tolerating an extraordinary remedial secession are not satisfied in the case of Catalonia.

Most observers accept the Catalan proposition that they form a “people” in terms of international law which is entitled to self-determination and which could constitute the “personal” element of a new state (consisting of a people, a territory, and a government). This self-constitution must be expressed in a “free” way (cf. common Art. 1 of the UN Human Rights Covenants of 1966), and this is where procedural standards kick in. For a political actor and potential holder of the collective right to self-determination to lawfully exercise an extreme form of the right to self-determination (namely to secede), both material and procedural conditions must be fulfilled.

In its decision on the question on the secession of Québec, the Canadian Supreme Court recapitulated the state of international law of the 1990s (Reference re Secession of Quebec, [1998] 2 S.C.R. 217) of 20 August 1998). First of all, the international right to self-determination of peoples (cf. Art. 1(2) of the UN Charter and the mentioned common Art. 1) must be exercised in an “internal” fashion, that is through arrangements of political participation and representation within the framework of an existing territorial state) without touching the state’s territorial integrity. The Canadian Supreme Court then mentioned three (more or less well defined) contexts in which the international right to self-determination of peoples could be exercised “externally”, potentially meaning secession. Besides colonial self-determination and other “alien subjugation, domination or exploitation outside a colonial context” (paras 132-133), the Court named “remedial secession” ─ but left explicitly undecided whether this was covered by international law as it stands:

Para. 134. A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. (…) [T]he underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent ‘the whole people belonging to the territory without distinction of any kind’ adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.” Para. 135: “Clearly, such a circumstance parallels the other recognized situations in that the ability of a people to exercise its right to self-determination is somehow being totally frustrated. While it remains unclear whether this third position actually reflects an established international law standard, it is unnecessary for present purposes to make that determination (emphasis added).

I personally lean towards the view that remedial secession is nowadays part and parcel of international law, not as a right but as a legal “defence”, or as a moral (as opposed to a legal) right of resistance or a means of revolution. In any case, the degree of “exploitation” that the Catalans seem to be suffering is not sufficient to justify such a legal defence, at least not without further negotiations which are now under way.

Referendums as a procedure to exercise the international right to self-determination

In the Catalan independence referendum of 1st October 2017, 96 % voted for independence, but with only a 42 % turnout. Such resort to a referendum has followed a meanwhile familiar pattern, well established in the post-1989 era of great territorial realignments, marked by the dissolution of the Soviet Union and the Socialist Republic of Yugoslavia on the one hand, and the deepening and widening of the European Union on the other hand. Almost all of these events were prepared, accompanied, and justified by referendums, often formally binding ones, sometimes only consultative, but followed by the governments involved.

Prominent examples are the Ukrainian referendum of 1 Dec. 1991 (which inaugurated the “parade of sovereignties” of the Socialist Soviet Republics), the no-vote of the French and the Dutch on the European Constitutional Treaty in 2004 (which killed the Treaty), the referendum on independent South Sudan in January 2011 (which led to the creation of a new state now fraught with civil war), and the referendum on the transfer of Crimea from Ukraine to the Russian Federation in 2014 (which occurred under gun-point of Russian soldiers and was declared null and void by the UN General Assembly (Res. A/68/L39 of 27 March 2014, para. 1)). Famously, Opinion No. 4 of the Badinter Commission on Bosnia-Herzegovina asked for a referendum as a pre-condition for the recognition of a new state by the European Community (repr. in ILM 31 (1992), at 1501-3).

Asking the people to decide directly on founding a new state (Kurdistan), on splitting off from a state (Catalonia), or from a highly integrated polity (UK), seems democratic at first sight. But what about the international rule of law? I am deliberately writing “international”, because the constitutional admissibility or inadmissibility of the referendum is irrelevant here. It is typical that territorial referendums conducted in the exercise of the right to self-determination are unconstitutional under the law of the parent state. For example, prior to the Lithuanian referendum of 9th February 1991, then president of the Soviet Union, Gorbachev, had declared these referendums illegal and their result void. Nevertheless, the European Community and numerous other international actors welcomed the decision to hold referendums on Baltic independence (i.e. their restoration of statehood).

It is controversial whether a customary law requirement to hold a referendum already exists as a matter of hard international law. But the legal status of requirements on the modalities of territorial referendums are independent of the question. In any case, a conditional scheme applies: even if there were no international law obligation to organise a referendum, international law still regulates its modalities and procedures. Notably the Venice Commission (here, here, and here) and the Council of Europe’s Parliamentary Assembly have established “soft” international standards on referendums as a form of exerting direct democracy, including territorial referendums, e.g. the one in Montenegro (2006).

These procedural requirements can be summarised as follows: Use of force is prohibited, while peaceful and democratic procedures are prescribed. One of the appropriate procedures is notably recourse to a free and fair referendum on independence or a democratic election, ideally under international supervision (cf. the written statement by Switzerland in the Kosovo proceedings before the ICJ, of 17 October 2008, paras 69-80).

To conclude, even if a (properly conducted) independence referendum might be a necessary precondition for lawfully asserting the independence of Catalonia, it is not a sufficient condition under international law. But this does not entitle the Spanish government to use disproportionate physical force to discipline the Catalans.

The populist politics of referendums

Despite their facial legal appeal, resort to referendums in matters of international law is deeply ambivalent. Reliance on a popular vote on territorial realignments has often been used as a populist device, prone to manipulation and demagoguery. In the context of the dissolution of the Soviet Union and Yugoslavia, the outcomes of the referendums basically always followed ethnic lines. The votes seemed to perpetuate and even reinforce illiberal democracies, based on ethnically homogeneous peoples. The classic international legal term was, not coincidentally, “plebiscite” (as opposed to the modern term “referendum” which was mainly introduced by the United Nations in the decolonisation context). The term “plebiscite” clearly has the negative overtone of populism.

I have myself consistently defended referendums (or other mechanisms of democratic decision-making) as a procedure for territorial realignment. It is surely preferable to determine the territorial contours of a polity on the basis of the consent of the governed following public debate among all affected groups, not on the allotments made by hegemonic powers on the drawing board or in green rooms. But we must not forget that the referendum was first of all designed as a procedure to confirm, define, or reject the drawing of a boundary where the basic decision that there should or could be an international boundary was already agreed upon (such as in the case of the Scottish referendum based on an agreement between the British and the Scottish government).

This was the Wilsonian inception:

And there is a deeper thing involved than even equality of right among organized nations. No peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property. (Woodrow Wilson, Address of the President of the United States of 22 January 1917, p. 6).

In reaction to this Wilsonian claim, there has been some controversy in international law on a possible requirement of a referendum. But that controversy related to territorial changes consented to by the governments involved. Put differently, the question was only whether a given executive consent needed to be supported by an additional popular consent. This structure of the debate had to do with the fact that the early referendums after 1914 only related to cessions, i.e. to transfers of territory on the basis of international treaties between the states concerned. The second type were decolonisation referendums on the legal basis of the colonial right to self-determination, where the release into independence in the end also happened with the consent of the then-colonial powers (not against their will). Only after 1989, most referendums accompanied the dismemberment of a state (the Soviet Union, which disappeared as a subject of international law), or successive secessions (the case of Yugoslavia).

Granted, the formal distinction between consensual and non-consensual territorial re-ordering is eroded in practice: The breakup of a state or the breakaway of a part of its territory normally is a protracted process during which the political attitudes of the actors, including that of the central government, change. For example, the Soviet Republics initially declared their independence against the will of the central government, but in the end that central government agreed. The same is true for all cases of decolonisation, likewise for the splitting off of South Sudan from Sudan in 2011, and arguably even for Yugoslavia.

Now can we say that once we accept a requirement of a democratic justification, this rule must extend to all types of territorial changes, especially against the background that a neat categorisation is not possible in practice? I have defended this position in the past but I am not so sure anymore. Where there is no underlying political acceptance, also among the other populations who will be directly affected by a secession (and who should therefore also have a say on the matter), e.g. the Spanish people, a territorial referendum seems more populist than democratic.

 

Joint Blog Series on International Law and Armed Conflict: Geoff Corn on Wounded and Sick, Proportionality, and Armaments

Wed, 10/11/2017 - 13:00

The fourth post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick, Proportionality, and Armaments’- by Geoffrey Corn (South Texas College of Law Houston) is now available on Lawfare.

Here’s an excerpt: 

Imagine you are commanding forces that have just repulsed a combined arms enemy ground attack. The enemy is now withdrawing, and you observe what are obviously wounded enemy soldiers being loaded onto enemy combat vehicles. You fully anticipate the enemy to regroup in order to continue the offensive. These vehicles are not protected because they are not properly marked nor exclusively engaged in the collection and evacuation of the wounded and sick. Instead, the enemy is employing the common practice of evacuating wounded with any available combat vehicle. While this is occurring, other enemy forces are providing covering fires in support of the withdrawal. You have on-call close air support assets, and your air support coordination liaison asks if the enemy vehicles should be attacked? The enemy vehicles are lawful objects of the attack, but you know that the military wounded and sick must be respected and protected. It is therefore clear that an attack may not be directed against the wounded enemy soldiers. But the ICRC’s updated Commentary asserts that before launching the attack on the withdrawing enemy forces who are not hors de combat you must assess whether the risk created to the wounded enemy personnel is excessive in relation to the concrete and direct military advantage anticipated.

[…]

Suggesting that such an obligation is logically inferred from the civilian proportionality rule is fundamentally flawed, because unlike military personnel, civilians (who do not take a direct part in hostilities) do not accept the risks of combat. 

Read the full post on Lawfare.

Offshore Processing and Complicity in Current EU Migration Policies (Part 2)

Wed, 10/11/2017 - 08:00

In the first part of our blog post we reconstructed a complex web of migration policies that indicate a shift towards offshore processing of asylum claims in Niger and possibly Chad. In this second part, we seek to answer an obvious yet difficult legal question, namely who bears responsibility in scenarios of extraterritorial complicity such as this one? As described in part one, the new plan could not be implemented without the close cooperation of various actors: European Union (EU) institutions and Member States, third countries (Niger and/or Chad) and UN organisations (IOM and UNHCR).

Our discussion focuses on issues of responsibility and jurisdiction arising when bringing a case to the European Court of Human Rights (ECtHR) against any of the Member States involved in the setting up and implementation of the offshoring mechanism. Given Italy’s role in concluding the agreement with Libya, Niger and Chad which underpins the offshoring arrangements, and its continued support for this extraterritorial solution, we test the applicability of the European Convention on Human Rights (ECHR) to Italy’s complicit acts. For the purpose of our argument, imagine that—under the offshore mechanism announced by the Commission, with Italy’s funds and active contribution, and under the monitoring and systematic coordination of the cabina di regia set up by Italy with Niger, Chad and Libya—UNHCR identifies a vulnerable person in need of international protection who is then transferred by IOM to a ‘reception’ centre in Niger. There she remains in detention whilst her case is being considered (in breach of Article 5 ECHR) and is subjected to torture or inhuman and degrading treatment (in breach of Article 3 ECHR). 

Violations/Wrongful Conduct

Since our scenario can only be hypothetical because emergency transfers and offshore processing in Niger have yet to take place, we will assume that the specific facts of the case will be sufficient to ascertain wrongful conduct. We base our assumption on the following features common to the Italian and Greek hotspots, and to the centres in Turkey and in Libya: increasingly deteriorating conditions of detention; significant backlogs in processing asylum claims; inability for individuals to access procedures satisfying the requirements of Article 13 (see the case of ND and NT v Spain); and, crucially, continued Member States’ recalcitrance in relocating and resettling people from these centres, even once their claims for international protection are established. Such a state of affairs does not give us any reasons to assume that the situation in Niger will be remarkably different. In light of this, and by analogy to the non-refoulement rule as set out in El-Masri and Al-Nashiri, it is possible to say that there is already a robust body of ECtHR case law on both Article 3 (covering direct and chain-refoulement) and Article 5 (liberty and security of person) which deals with situations similar to those of our scenario, including in the context of migration management. Thus, in our hypothetical scenario the relevant factual criteria for the violations are met.

Complicity under ARSIWA

There is little doubt that we are dealing with what Nollkaemper calls ‘cooperative human rights violations’ and there is a good base for establishing a case of complicity against Italy under ILC’s Articles on the Responsibility of States for International Wrongful Acts (ARSIWA). The rules in ARSIWA are traditionally considered as a set of secondary rules that apply when there is a breach of a primary rule. This, some have argued, makes the applicability of ARSIWA in front of the ECtHR somewhat problematic in situations related to modern-day non-entrée policies because the Court seems to base its decisions on its primary rule of non-refoulement as a specific applicable complicity provision. According to Hathaway and Gammeltoft-Hansen, the ECtHR agrees that ‘international human rights law is to be interpreted taking into account the law on state responsibility’. The ECtHR, however, does not explicitly rely on ARSIWA in its jurisprudence. Several reasons have been given for this: it could be because the examination by the ECtHR of the lawfulness of an act by a third State would go against the ‘indispensable parties rule’; or because the ECtHR already includes such ‘scenarios of derived responsibility’ in its analysis of positive obligations of the state parties, when considering the obligations to prevent, protect and fulfil ECHR rights. As argued by Baxewanos, the ECtHR confirmed in the Soering Case that a state must ‘refrain from any act that may facilitate human rights violations by other actors, even if it does not exercise effective control in that particular situation’ (see further below).

A previous blog has already discussed the applicability of ARSIWA to Italy’s complicity in recent interception and pull-backs operations by Libya, a scenario not too dissimilar from ours. We therefore clarify here only two points which are relevant to our argument (for more see here and here). One relates to the nexus element that, under Article 16 ARSIWA (aiding and assisting), needs to be found between the aid and the commission of the international wrong. As explained by Wilmshurst, the contribution and/or material facilitation to the wrongful act must be substantial, not merely incidental. A Chatham House research paper by Moynihan confirms that assistance in a ‘generalised way’ will not necessarily result in a breach of Article 16 ARSIWA. Italy’s actions, however—such as financing and ensuring effectiveness of offshoring—taken individually and jointly with EU institutions and other Member States, do not appear to be merely incidental, but part of a concerted joint effort to externalise migration management in which Italy plays a key role. The second point that we would like to clarify concerns the knowledge element under Article 16 ARSIWA. Whilst intent appears to be a necessary part of Article 16, ‘knowledge or virtual certainty that the recipient state will use the assistance unlawfully’ is capable of satisfying the intent element under Article 16, whatever its desire or purpose’. If we accept that purpose is therefore not required to find a breach of Article 16, and that knowledge satisfies the intent requirement, it would be difficult for Italy to distance itself from the wrongful acts by Niger in relation to both deprivation of liberty and inhuman treatment in the offshore processing centres (see also here).

Issues of Jurisdiction

The main problem in ascertaining Italy’s responsibility in front of the ECtHR remains the fact that in many non-entrée situations the vulnerable person concerned is never within the territory of the complicit state (Italy), which raises issues of jurisdiction under Article 1 ECHR. Classic approaches to jurisdiction arising once a state has effective control over a person or territory do not apply here as there is no such control over the place where the detention and processing will be conducted.

Jackson, however, argues that jurisdiction may arise due to the complicity of an ECHR Member State in breaches committed by a third state. He contends that ‘the rule in Soering can be re-imagined and legitimately extended to cover cases of extraterritorial complicity’. In Soering the responsibility of the extraditing state (UK) under Article 3 ECHR was established because the claimant faced ‘a real risk of torture or inhuman and degrading treatment in the foreign state’. This finding was possible by overcoming an obvious problem of jurisdiction, as the treatment of the claimant would have occurred in the territory of the US or at the hands of its agents. It is possible to extend the Soering argument, as per Jackson, also to our scenario. According to Jackson, Soering established a ‘narrow preventive complicity rule’ whereby the engagement of Article 3 ECHR turns on the ‘foreseeable consequences of extradition suffered outside [the extraditing state’s] jurisdiction’. As this rule is based on the ‘real risk of the principal wrong occurring’, it could be expanded to other forms of complicity in breaches of Article 3 ECHR and other ECHR rights. We suggest that the same approach can be applied to the case of Italy’s complicity in breaches of Articles 3, 5 and 13 ECHR because of Italy’s involvement in financing, setting up and monitoring the effectiveness of the offshoring mechanism.

Notably, Milanovic argues in favour of a territorially unlimited approach to negative obligations:

states not only have a territorially unlimited negative obligation not to directly violate the rights of any given individual, but also a territorially unlimited, primary negative obligation to refrain from assisting third (state or private) parties in violating human rights, by analogy to the non-refoulement rule as set out in cases such as Soering or Judge. By contrast, the positive obligation to protect individuals and prevent the violation of their rights by third parties would only arise if the individuals in question were in an area under the state’s effective control, or otherwise subject to its jurisdiction.

Similarly, to establish jurisdiction in cases of extraterritorial complicity Jackson deploys five lines of arguments, to which we refer in turn. He first argues that interpretative doctrines see the ECHR as a ‘living instrument whose safeguards must be practical and effective’. It is therefore reasonable to argue for an evolutionary interpretation of the ECHR which includes a more expansive understanding of jurisdiction under Article 1. The migration policies of the EU and its Member States systematically rely on extraterritorial measures to circumvent human rights obligations, and due attention should be paid to this for the ECHR to remain relevant. Offshore processing in Niger may ultimately lead to Member States hardly ever exercising control over the territory where the violations takes place or over the person who suffers the violation. Under the current interpretation of Article 1, this would lead to an unacceptable outcome, i.e. the non-applicability of the ECHR due to wilful attempts to circumvent existing obligations and ultimately to an erosion of ECHR effectiveness.

His second argument focuses on the nature of the violations, specifically the absolute nature of the prohibition against torture, which ‘has pushed the expansion of the rights protection in other contexts’. Since non-refoulement is inseparably related to the prohibition against torture in Article 3 ECHR, this argument also applies to our scenario.

Third, Jackson argues that ‘overcoming the jurisdictional gap would render states’ obligations under the ECHR consistent with their other international obligations’. In Soering the ECtHR used the reasoning in Article 3 of the Convention against Torture thus creating consistency between the two. Given the significance of the law on state complicity and, specifically, of Article 16 ARSIWA, its emergence into customary international law, and its crucial role in the ‘war on terrorism’, the ECtHR could take into consideration the reasoning of this rule, thus paving the way to an extension of Soering.

In his fourth argument, the Soering rule is summarised as establishing state responsibility for the ‘foreseeable consequences of extradition suffered outside their jurisdiction’, demanding ‘that states take responsibility for wrongdoings they facilitate’ although the Article 3 violation is carried out by another state. Facilitation, indeed, can take many forms. In our scenario, these are: funding, actively seeking and obtaining the cooperation of third countries (including by making funding conditional to the effectiveness of migration control measures); training and equipping the authorities of the third country; leading the committee monitoring the effectiveness of the offshoring mechanism.

In his fifth argument, Jackson contends that his approach would ‘align with powerful trends in the ECtHR’s recent case law on jurisdiction’, thus preventing absurd results—i.e. states being able to facilitate violations abroad where they cannot do so at home—and upholding the universality of rights. Prohibiting Member States to refoul people or to detain them in inhuman conditions within their territory, yet allowing them to facilitate a third country to do so would lead to an ‘absurd result’. And allowing states to offshore, outsource and buy their way out of the obligations vested upon them, flies in the face of the notion of universality of rights.

To conclude, we think that it is preferable for the ECtHR to focus on the substantive conduct of the complicit state (Italy), which has a (territorially unlimited, primary negative) obligation to refrain from assisting a third party in violating human rights. In this way, jurisdiction can be extended to the scenario discussed. This would involve considering Article 16 ARSIWA as a primary rule of international law to clearly define the scope of acceptable conduct for a state, hereby avoiding ‘absurd results’. Jackson’s and Milanovic’s arguments, in our view, provide some conceptual clarity to the approach that the ECtHR should take towards jurisdiction and offer clearer, actionable routes to remedy for victims, including in scenarios of extraterritorial migration control where we increasingly see the involvement of private non-state actors in support of EU institutions and Member States. But that is a blog post for another day.

 

Offshore Processing and Complicity in Current EU Migration Policies (Part 1)

Tue, 10/10/2017 - 08:00

It has certainly been a busy summer in terms of developments in European Union (EU) migration policies. From an intensification of cooperation between Italy and the Libyan Coast Guard to intercept and ‘pull back’ migrants at sea; to a controversial Code of Conduct for non-governmental organisations involved in migrants’ rescue operations at sea; and the further mobilisation of funds for the EU-Africa Trust Fund, things have been all but calm on the Southern European front.

Together with images of a right-wing Defend Europe ship sailing the Mediterranean to track the activities of humanitarian NGOs, the summer has also left behind renewed plans for offshore processing centres to identify persons in need of international protection outside of the EU. On 27 September 2017, the European Commission presented its new plans for a ‘stronger, more effective and fairer EU migration and asylum policy’, aimed at ‘enhancing legal pathways for persons in need of international protection’. Whilst press releases emphasise the resettlement aspect of the plan, a closer analysis of the official documents and related policies issued throughout the summer, reveals a slightly different picture.

In this first blog post we reconstruct a complex web of EU migration policies that, in our view, indicate a shift towards extraterritorial protection, and more specifically the introduction of a multi-stakeholder mechanism for the offshore processing of asylum claims in the Sahel. It is crucial to have as much conceptual clarity as possible with regards to the nature and scope of the policies introduced by the EU and its Member States, in collaboration with the International Organisation of Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR) and several African States. This is because the implementation of these policies undoubtedly poses legal concerns, both in terms of human rights and protection needs (see here) and in terms of complicity in and remedies for international wrongful acts which may result from these policies (issues that we discuss in part 2 of this blog).

It is important to note that the idea of setting up offshore processing centres is not new. Since as far back as 1986, proposals have been presented by various Member States (MS), usually in response to sharp increases in incoming migration flows. Denmark (UN Doc A/C.3/41/L.51 of 12 November 1986), the United Kingdom, Germany, Italy and even the UNHCR have all put forward proposals aimed at identifying ‘new’ extraterritorial approaches to refugee protection. These proposals presented many similarities (see e.g. here) and focused mainly on two forms of extraterritorial protection, namely the creation of third-country processing centres (also known as offshore processing centres) and/or of regional protection areas. The former are centres outside of the EU to which ‘irregular’ migrants are transferred and effectively detained while their asylum claim is processed. In theory, if the claim is successful, the individual can then be resettled in a MS or in an alternative safe country. If the claim is unsuccessful, they can be returned to their country of origin. The latter, on the other hand, aim at providing temporary protection to refugees within their region of origin.

A more recent proposal for extraterritorial protection was presented in Paris on 28 August 2017 in a Joint Statement Addressing the Challenge of Migration and Asylum (Paris statement). Here France, Germany, Italy, Spain, Niger, Chad, the Chairman of the Presidential Council of Libya and the EU High Representative/Vice President for Foreign Affairs and Security Policy confirmed their support for the ‘activities conducted under the EU-IOM partnership for West Africa and Libya adopted under the Emergency Trust Fund for Africa, including the protection centres created along the route’. They also recognised the need to resettle ‘particularly vulnerable’ people in need of international protection. In light of this, France, Germany, Italy and Spain, ‘in close liaison with UNHCR and in line with EU priorities’, agreed to carry out protection missions in Niger and Chad ‘to examine the conditions’ for implementing the actions agreed in the Paris statement.

A further document accompanying the Paris statement explains the nature of these protection mechanisms, to include variously:

– identification by the UNHCR, following registration by the country of first arrival, of persons who could be eligible for resettlement, using closed lists and on the basis of commonly determined criteria that could include:

  • relevance of the case under asylum rules;
  • link to transit towards Europe;

– Interviews and security assessment in the country of reception of candidates by missions of the relevant authorities of resettlement;

– For selected candidates, resettlement to a European country in liaison with the IOM and UNHCR and with EU financial support.

In relation to the above, an answer to a written Parliamentary question by the German Parliament revealed, in August 2017, the existence of an agreement between the UNHCR and Niger for an ‘Emergency Evacuation Mechanism’ (Nottransfermechanismus) whereby the most vulnerable migrants would be transferred from Libya to Niger. In Niger, their need for protection would then be closely examined and the possibility of resettlement—including in EU Member States—explored. These plans for extraterritorial processing were further confirmed by the German media, which in early September 2017 began debating a leaked implementation plan drafted by the European Commission.

The existence of such an agreement between UNHCR and Niger is not altogether surprising, since already in 2015 the European Agenda on Migration had referred to the creation of a ‘pilot multi-purpose centre in Niger’ in cooperation with the IOM and the UNHCR. The functions of this centre, however, remained unclear at the time and experts disagreed on whether these plans actually referred to offshore processing per se. Irrespective of the original 2015 plans for the multi-purpose centre, statements by the French President’s office also indicated a desire for ‘asylum requests [to be] processed as close as possible to the migrants’ countries of origin in sub-Saharan Africa’. In July 2017 Vincent Cochetel, UNHCR Special Envoy to the Central Mediterranean, also announced his support for ‘screening systems for EU-bound migrants in countries en route to Libya, such as Mali, Niger, Burkina Faso, Ethiopia, Chad and Sudan’, following a proposal by African and European ministers in Tunis discussed earlier that month.

So, is it possible to ascertain with clarity what the EU plans actually are?

The latest proposal released by the Commission on 27 September 2017 sheds further light on the way in which these processing and resettlement mechanisms will function. In its Recommendation on enhancing legal pathways for persons in need of international protection, the Commission confirms the intention to ‘follow-up on the announcement in the Action plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity [of 4 July 2017] to resettle from the key African countries along and leading to the Central Mediterranean migratory route, including Libya, Niger, Chad, Egypt, Ethiopia, and Sudan’. The Action plan builds on the initiatives undertaken by Italian Interior Minister, Marco Minniti, who is considered to be the architect of Italy-Libya migration agreement, and a further agreement with Libya, Niger and Chad of 21 May 2017. According to this latter document, the Interior Ministers of these countries agreed to ‘support the creation in Niger and Chad, as well as support the management in Libya, of reception centres for irregular migrants, in line with international humanitarian standards’. They also set up a ‘control committee’ (cabina di regia) made up of the Interior Ministers of Italy, Libya, Niger and Chad for ‘periodic and effective consultations on topics agreed upon during the meeting’.

To sum up, the policies discussed so far seem to point in the direction of new offshore processing centres in Niger and potentially Chad, and of simultaneous attempts to make the already abysmal conditions in the detention centres in Libya more ‘humane’ by involving humanitarian NGOs in managing them. In light of the failure in effectively relocating people in need of international protection from the ‘hotspots’ in Italy and Greece, and in resettling them from Turkey, there is a high risk that people will remain stranded in the Sahel, with their asylum claims being inevitably delayed, leaving them vulnerable to further abuse. As we discuss in the second part of this blog post, this failure has also serious implications in terms of the legal complexity that scenarios like this present when seeking accountability for violations stemming from the process.

(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Mon, 10/09/2017 - 08:00

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage.

In Ilascu and others v Moldova and Russia, the Court refused to recognise as lawful the courts of the ‘Moldovan Republic of Transdniestria’ (‘MRT’). According to the Court, the MRT is ‘an entity illegal under international law and has not been recognised by international community’. The consequence of this was, in the Court’s view, that the courts established by the MRT were unlawful and could not be considered as independent and impartial tribunals established by law, as required by the Convention, owing to the very fact of being put into existence by the unlawful regime. The Court proceeded by stating that the MRT courts belonged to ‘a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention’ (para 436). It is to this aspect that the Court’s analysis shifted in more recent decisions regarding Transnistria, such as Mozer v Moldova and Russia. The Court no longer considered that the illegal nature of the de facto regime and its unrecognised status under international law in and of itself rendered the courts unlawful. What mattered was the need to avoid a legal vacuum and whether, in substance, the judicial system could be considered compatible with the Convention principles. The Court did not find evidence of this in the case of MRT in Mozer v Moldova and Russia, one of the justifications being that Moldova was not a member of the Council of Europe and party to the Convention when the isolation of Transnistria happened; the system that operated in Transnistria was therefore based on the old Soviet order and did not embody the values of the Convention. As a consequence, the MRT court, or any other authority in MRT, could not have ordered the applicant’s lawful detention within the meaning of Article 5 of the Convention.

This latter argument reflects the Court’s approach to (non-)recognition in cases involving another de facto regime, that established following the occupation of Northern Cyprus by Turkey. The Court does not view the legal and judicial system operating in Northern Cyprus under the regime of the Turkish Republic of Northern Cyprus (‘TRNC’) as devoid of lawful basis due to it being established by an unlawful regime.

In certain cases the Court has found that the law and courts in Northern Cyprus constituted domestic remedies which needed to be exhausted, provided they were effective, for the purposes of admissibility. The Court builds its argument in this respect on the exception to non-recognition pronounced by the International Court of Justice (‘ICJ’) in its Advisory Opinion on Legal Consequences for States of Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276: invalidity, and as a consequences non-recognition of acts of an unlawful regime:

‘cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants […]’,

in other words, acts of a private law character, that are related to everyday necessities of private individuals and the regulation of relationships between them (Namibia AO, para 125; Separate Opinions of Judge de Castro and Judge Dillard). In the ECtHR’s view, recognizing the judicial system in TRNC for the purposes of the Convention is also compelled by the need to avoid causing detriment to the individuals who may be able to use remedies offered by such system to prevent violations of the Convention, and more generally to avoid a legal vacuum in human rights protection (Cyprus v Turkey; Demopoulos and Others v Turkey).

The upshot of recognising that there is a system of ‘domestic law’ and ‘domestic remedies’ in the TRNC which need to be exhausted, if effective, is that the Court does not consider the court system under the TRNC tainted by the unlawful character of the de facto regime. Even more, in the ECtHR’s view the court system in place in Northern Cyprus represented a judicial tradition compatible with the Convention since the courts were not essentially different from those operating before the occupation by Turkey or those operating in other parts of Cyprus (Cyprus v Turkey). Proceedings before the courts of the TRNC were therefore not necessarily and automatically incompatible with fair trial guarantees and in some cases were found to be in fact consistent with the Convention’s right to a fair trial (Foka v Turkey).

To sum up the Court’s current approach, the unlawful character of a de facto regime that came into existence as a result of a breach of international law does not per se render the judicial system operating under the regime unlawful. The cases relating to MRT and TRNC appear to suggest that, motivated by the need to avoid legal vacuum in human rights protection, the Court is willing to give effect to the legal and court systems of an unrecognized de facto regime where such systems, in the Court’s opinion, are based on principles compatible with the Convention.

Implications for cases involving Eastern Ukraine and Crimea

Applying this approach to potential cases involving Ukraine, one may hypothesize that the Court is likely to draw a distinction between the situation of Crimea and that of Eastern Ukraine. The acts and court decisions in the former may be recognised as valid for the purposes of the Convention and rejected as prima facie devoid of legal basis in the latter. The reason for this is that the law that in reality governs life in Crimea is that of the Russian Federation, itself a party to the Convention and a member of the Council of Europe. Similarly to the Court’s approach to the TRNC, it can be argued that the ‘domestic law’ and the courts in Crimea are at least in theory based on principles reflecting the Convention’s values. The situation in the de facto regimes in Eastern Ukraine, ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ appears to be different. These regimes were characterised as ‘total breakdown of law and order’ (UN OHCHR, Report on the Human Rights situation in Ukraine (2014)), as lacking ‘a developed and legitimate legal system’ (OSCE, Access to Justice and the Conflict in Ukraine; Council of Europe, Parliamentary Assembly, Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities) and it would seem that at least some courts that operated in the area before the onset of the conflict were moved into the Government-controlled areas (Khlebik v Ukraine).

As a matter of international law, the de facto regimes in Eastern Ukraine as well as the establishment of the current administration in Crimea came into existence as a result of a breach of a peremptory norm of international law prohibiting use of force. The situations created by such breaches are unlawful and should not be recognised as legally valid. Therefore, once such a breach is established, the question of recognition of ‘official acts’ should hinge only on the scope of the exception to the obligation of non-recognition that the ICJ established in Namibia AO. However, given the Court’s approach in recent cases relating to Transnistria and Northern Cyprus, it seems that in substance the Court has departed from the ICJ’s approach. Before applying its current approach to the situations of Crimea and Eastern Ukraine, the Court should consider carefully the implications that recognising the validity of legal systems established under de facto regimes may have for the unlawfulness under international law of the annexation of Crimea and the use of force in Eastern Ukraine.

Announcements: Post-Doctoral Researcher “Individualization of War Project”; Oxford Global Justice Lecture 2017; UN Audiovisual Library of International Law; Ghent University Conference – ‘Freedom under Pressure’

Sun, 10/08/2017 - 10:00

1. The European Research Council Funded Research Project on “The Individualization of War: Reconfiguring the Ethics, Law, and Politics of Armed Conflict” (IOW) Seeks a Postdoctoral Researcher. The IOW project is based at the European University Institute & the Oxford Institute for Ethics, Law and Armed Conflict. The successful applicant will work closely with Professor Dapo Akande (who is based in Oxford and is co-investigator on the project). She or he will conduct research on the application of human rights law in armed conflict and on the relationship between human rights law and international humanitarian law.  Candidates should have an outstanding PhD in international law but should be excited about working in an inter-disciplinary team which includes international relations scholars and moral philosophers. The position is for one year and will start in December 2017 or January 2018. Further details on the project is available here the position. Full details about the position and the application process can be found here.

2. Oxford Global Justice Lecture 2017: Fatou Bensouda, Prosecutor of the International Criminal Court – “Reflections on Peace & Justice in the 21st Century”. The Oxford  Global Justice Lecture will be given this year by Fatou Bensouda, Prosecutor of the International Criminal Court on Thursday 12 October at 5.00pm. How does the pursuit of international criminal justice contribute towards the ends of peace? Should justice be sequenced to cater for peace processes or can a workable harmony be found to advance both these virtues?  This lecture will aim to answer these important questions, more specifically within the Rome Statute legal framework. The Oxford Global Justice Lecture is delivered each year, at the Faculty of Law, University of Oxford by a leading figure in international law. The lecture series is generously supported by the Planethood Foundation. Previous lecturers have been Patricia O’Brien, then Under-Secretary General for Legal Affairs at the United Nations (2013); Judge Theodor Meron, President of the UN Mechanism for International Tribunals & then President of the International Tribunal for the former Yugoslavia (2014); Judge Christopher Greenwood KCMG, QC, Judge of the International Court of Justice (2015). For more details see here.

3. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Eleanor M. Fox on “Competition Law and World Systems: Extraterritoriality, Convergence, and the Prospects for a Unified World System through an International Law of Antitrust” and Professor Jean-Marc Sorel – “Le droit monétaire et financier international”.

4. Ghent University Conference – ‘Freedom under Pressure’. On the occasion of its bicentennial, the Faculty of Law of Ghent University will host a two-day international conference on 7 and 8 December 2017 entitled ‘Freedom under Pressure’. The conference will gather legal scholars and practitioners to discuss key fundamental rights and freedoms under pressure in three distinct areas: (1) property protection; (2) data protection and privacy, and (3) freedom of movement in the EU. Panels will tackle a range of issues, including, for instance, the use and abuse of international investment arbitration, immunity from execution, or the use of targeted financial sanctions as a foreign policy tool. Confirmed speakers include Judge James Crawford (International Court of Justice), Judge Siofra O’Leary (European Court of Human Rights), Judge Allan Rosas (Court of Justice of the EU), Prof. Joseph Cannataci (UN Special Rapporteur on the right to privacy) and Mr. Gilles de Kerchove (EU Counter-Terrorism Coordinator). The full programme as well as further practical information is available on the conference website. Early-bird registration rates expire on 15 October.

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

Thu, 10/05/2017 - 17:08

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?

The US position is that it is engaged in armed conflict with Al-Qaeda and associate forces, full stop; not that there is a series of distinct non-international armed conflicts with Al-Qaeda in Afghanistan or AQI in Iraq or AQAP in Yemen, all of which have their own independent existence after (arguably) having reached the organization and intensity thresholds required by customary IHL, and all of which may independently end. Combined with the completely nebulous concept of associated forces and its further application to entities with a very diffuse organizational structure, this US theory has allowed it to claim that many of its operations were conducted in the course of an armed conflict, when, in fact, under the mainstream view they would not have been. The only body of international law that could have regulated the use of force in these circumstances would be human rights law, in addition to the jus ad bellum.

It is hence this US view of a single, non-territorially localized NIAC with Al-Qaeda which remains problematic. And it is because of that underlying premise that Ryan’s reliance on the acceptance of ‘spillover’ NIACs is also problematic. I personally have no problem in accepting that, for example, an ISIS commander who was directing hostilities against Iraqi and coalition forces in Iraq and who crosses the border into Turkey and continues directing his forces in Iraq from there remains subject to IHL and that the NIAC has spilled-over into Turkey. He would continue being a lawful target under IHL, but Iraq/the coalition would have additional jus ad bellum obligations vis-a-vis Turkey. I also agree with Ryan that it makes no sense to confine this spillover effect to physically neighboring states. That effect would continue if, say, the commander boarded a ship on the high seas or went to Thailand, so long as what he continued doing had a nexus to the ongoing NIAC in Iraq. But this is still a far cry from the US theory that any individual in the world who professed allegiance to Al-Qaeda (or ISIS, or whoever) was a fighter in a global NIAC which has no nexus to specific hostilities in any given place.

So, while I think Ryan is right in saying that we need to be careful in drawing legal conclusions based on the formulations of a US policy guidance, it is not correct to say that all US drone strikes have been conducted in the context of an armed conflict recognized as such under IHL as properly interpreted (to be fair, I’m not sure whether Ryan even thinks that). In other words, if is the set of all historical US drone strikes, it has two sub-sets: DIHL and DIHRL, the latter of which is regulated only by IHRL and has a non-zero content (the jus ad bellum aside, and misguided US positions regarding the non-extraterritoriality of IHRL also aside). Footnote – the best such UK example would be the August 2015 drone strike against ISIS recruiter Reyaad Khan in Syria. Within DIHL there is a further sub-set – let’s call it DIHL+IHRL – in which IHRL not only applies in parallel to IHL (which it does always, in my view), but does so in way that modifies the outcome that would have been correct if IHL had applied alone – for example, by imposing an additional requirement of capture before kill in specific circumstances, as in the Israeli Supreme Court’s Targeted Killings case.

A virtue of Obama’s PPG was precisely that, even though it maintained the rigidity of the US legal position that IHRL did not apply to an extraterritorial taking of life, it substantially reduced the risk of an IHRL right to life violation in both DIHRL and DIHL+IHRL scenarios, by minimizing collateral damage (which IHRL does not categorically prohibit in any event – viz. Finogenov v. Russia) and by moving the use of lethal force against the intended target closer to an option of last resort. (This of course assumes that the PPG was in fact applied as written, which is probably assuming too much). The new Trump policy will at least prima facie escalate this risk, as does the US continued insistence on the global NIAC theory which, again, to my knowledge other states have not endorsed, and which clearly (and I use this word advisedly) has no basis in IHL.

ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’

Thu, 10/05/2017 - 12:00

This post is part of the joint blog symposium hosted by EJIL:Talk!, Lawfare and Intercross and arising out of the 5th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence this summer.

I was asked during our workshop to discuss some questions related to non-state armed groups raised by the chapeau of Common Article 3 (In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions) and the 2016 ICRC Updated Commentary to Geneva Convention I.

It is well known that for there to be a non-international armed conflict, the violence must involve an organized armed group.  So one of the first questions to arise in this context is what degree of organization of the armed group is required in order to trigger the application of international humanitarian law (IHL)?  

The 2016 ICRC Commentary acknowledges that Article 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply. It is however uncontroversial that armed groups must reach a certain level of organization so as to be bound by IHL. As the well known definition of armed conflicts in the ICTY 1995 decision in the Tadić case reminds: ‘[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (Prosecutor v. Dusko Tadić (aka ‘Dule’), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), ICTY (Case No. IT-94-1), 2 October 1995, §70).

How to determine the appropriate level of organization seems to be the difficult question. For the ICRC, the parties involved must show a ‘minimum of organization’. The ICTY 2008 Boskoski case (Prosecutor v Boskoski, Judgment, Trial Chamber, ICTY (Case No IT-04-82-T) 10 July 2008, para. 195 and ff) stated that a group would need to have ‘some hierarchical structure’ and that as a minimum, the group must be able to implement the basic obligations of CA 3. It added five elements that could help identify the degree of organization of an armed group.

– the existence of a command structure;

– the fact that the group could carry out operations in an organized manner;

– elements indicating a level of sophistication with respect to logistics;

– the existence of internal discipline; and

– the ability to speak with ‘one voice’.

The ICRC and the case law thus seem to point to a relatively low threshold of the degree of organization of the armed groups for IHL to apply. But one could wonder if an armed group with a low degree of organization will still be have the capacity to implement certain IHL norms (for instance obligations relating to fair trial (article 3, para. 1(d)) require a substantial degree of organisation). Here perhaps the debate needs to be shifted to the notion of ‘equality of belligerent’ and to the question of the implementation of IHL, rather than on the applicability of IHL to a group (See notably Sassòli M (2011) Introducing a sliding-scale of obligations to address the fundamental inequality between armed groups and states? International Review of the Red Cross 93(882):426-431 and Sassòli M (2010) Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law. Journal of International Humanitarian Legal Studies 1:5–51.

In practice, the issue of the level organization of armed groups is of particular importance in certain conflicts in Africa notably in the DRC, CAR or in the Lake Chad region, where there exist a number of armed groups with very loose degree of organization (like the Mai Mai in the DRC, the anti-Balaka in CAR or various ‘vigilante groups’ in the Lake Chad region). The difficulty here will be to consider which legal framework is applicable to these groups, despite the high level of violence they exert often in a context where state official institutions are at best weak or more often completely failing (See for instance, ICG Africa Report N°230, ‘Central African Republic : The roots of Violence’, Sept. 2015 explaining how armed groups transformed themselves in armed communities ; and the ICG Africa Report N°244  of 23 February 2017, ‘Watchmen of Lake Chad: Vigilante Groups Fighting Boko Haram’ on the unclear relationship between vigilante groups and the state).

Another interesting question is to consider whether and when it is possible to aggregate violence by various armed groups such that collectively the intensity threshold for non-international armed conflicts (NIAC) is crossed.

In addition to the organization of the armed group, the other condition triggering the application of IHL is the existence of a certain degree of armed violence between a state or several states and one or several armed groups, or between armed groups themselves, so as to differentiate the situation from mere internal disturbances or riots that are regulated by domestic and human rights law. The requisite degree of intensity may be met: ‘when hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.’ The 2016 ICRC Commentary does not provide for much more information in this regard apart from reminding the relevant case law, notably from the ICTY 2008 Boskoski, the 2008 Haradinaj and 2005 Limaj cases, which offer a series of factors that could help assess if the requisite threshold of violence has been met.

In particular, neither with regard to the degree of organization, nor with regard to the condition of ‘protracted violence’ does the ICRC 2016 Commentary specify whether the conditions must be met individually for each group or can be aggregated by several armed groups to meet the requisite thresholds. In his commentary of Common Article 3, Lindsay Moir affirms that ‘since Common Article 3 does not require government participation, the organization test must be applied to each group involved in hostilities. Where several armed groups engage state forces, but without coordinating their activities, provided the requisite level of organization can be demonstrated for each group, a lack of organization between these groups would not seem to preclude the existence of a NIAC (or, indeed several conflicts) in the context of Common Article 3’. (Lindsay Moir, ‘The Concept of Non-International Armed Conflict’, in : Clapham, A., Gaeta P., Sassoli, M (eds), The Geneva Conventions of 1949 : A Commentary, Oxford University Press, 2015, p. 406, emphasis added//). With regard to the level of violence and the elements indicated in case law, he adds that ‘as is also the case with the various criteria/elements for organization, it should be noted that, whilst these factors assist in determining whether the necessary level of intensity has been reached, they are to be applied on a case-by-case basis’. (p. 413, emphasis added) This perhaps brings us to the next question to be discussed, i.e. the links between armed groups so as to be considered a single party to a conflict.

What linkages or relationships must exist between non-state armed groups in order to consider them as a single party to a conflict, including across borders?

To be fair, there does not exist much information either in the text of the conventions or in case law about what kind of relations should or must exist between different armed groups so as to be able to consider them a single party to a conflict. Similarly the 2016 ICRC commentary does not address the issue. Establishing the relationship between armed groups is of particular importance with regard to the territorial scope of IHL, it also brings to the fore the more basic question of how to delineate armed groups for the purpose of classifying non-international armed conflicts and applying IHL as well as with regard to the end of NIAC with armed groups and their different factions. The issue is of particular relevance in case of the PKK and the TAK in Turkey (or even between the PKK and YPG/YPJ in Syria); Al Qaeda and their so-called ‘affiliates’ (AQMI, AQAP and other groups); the Islamic State and the different groups of pledged allegiance to it (among the groups that have pledged allegiance to IS, that were recognized as such by the group, one can name Boko Haram (Nigeria) on 13 July 2014, Ansar al-Sharia (Libya) on 31 October 2014, Ansar Beit al-Maqdis/Sinai Province (Egypt) on 10 November 2014, and JundAllah (Soldiers of God) in Pakistan on 17 November 2014). For example, the Obama administration maintained that the United States was in an armed conflict with Al Qaeda ‘and associated forces’, notably Al Shabab—and that members of the latter could accordingly be detained and targeted during the course of hostilities as party to the same armed conflict, even the armed groups did not operate from the same territory (in this case, Yemen and Somalia) (See on that the post on Associated Force and Co-belligerency’, by Nathalie Weizmann.)

Scholarship has devised a number of theories to delineate the boundaries of organized armed groups. For instance, some authors argued in favour of applying the notion of ‘co-belligerency’ to non-state armed groups in NIAC (Kevin Jon Heller in Opinio Juris, Goldsmith Responds About “Co-Belligerency”). Others have proposed to apply ‘by analogy the notion of ‘associated forces’ (Article 51 API and Article 4 GC III) to devise the relationship between armed groups, notably for the purpose of targeting (See Ryan Goodman, ‘Al-Qaeda, the Law on Associated Forces and “Belonging to” a Party (did the new UN drones reports get it right?), 18 October 2013). These proposals were met with some criticisms usually because they lack firm basis in law (either treaty or customary international law) or because the application of the law and concepts from the law relating to international armed conflicts (IAC) to NIACs in these particular cases was thought to be inadequate (see the blog entry of Kevin Jon Heller, The Problematic “Belonging To” Analogy: A Response to Goodman, 23 October 2013). It was also suggested that an aspiring faction would belong to an armed group if it falls under the ‘command and direction’ of that group.  This approach seems to be the one taken by the then Special Rapporteur on Extrajudicial, summary or arbitrary executions Christof Heyns in his 13 September 2013 Report where he stated that ‘the established legal position is that, where the individuals targeted are not part of the same command and control structures as the organized armed group or are not part of a single military hierarchical structure, they ought not to be regarded as part of the same group, even if there are close ties between the groups’. In that regard, it could also be interesting to look at the practice of armed groups themselves. For instance, in 2014, at the peak of their power, IS claimed that some of the groups that pledged allegiance would not be accepted until they maintained a direct line of communication to Baghdadi and until he appointed or formally recognized the group’s leadership (see the Stanford University database, ‘Mapping militant organizations: The Islamic State’). While I can agree in some circumstances with the proposal that armed groups with a common ‘command and structure’ should be considered as one entity, the problem is that the structure of armed groups are often opaque and may evolve rapidly. For these reasons, absent clear legal basis and case law, the better solution, might be, as stated above, to establish for each group whether the requisite thresholds of organization and intensity of violence have been met and whether individually each group is party to a NIAC or not. This is the approach taken the War Report 2012, 2013, 2014 and the War Report 2016, (Oxford University Press and Geneva Academy of IHL and Human Rights) when assessing the existence of NIACs.

Finally, what is the geographical scope of IHL application within a single state where there is a NIAC.

A final question I was asked to address in our workshop has to do with the geographical scope of applicability of Common Article 3. The issue at stake here is the following:  if a conflict is localised in a specific zone, whether IHL should be applied only to the geographical zone concerned and not to the entire territory of the state. (see for example Noam Lubell and Nathan Derejko, ‘A Global Battlefield ? Drones and the Geographical Scope of Armed Conflict’, Journal of International Criminal Justice 11 (2013), 65-88). 

The text of Common Article 3 (‘The following acts are and shall remain prohibited at any time and in any place whatsoever’) and case law (Tadic: ‘the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities…IHL continues to apply in the whole territory of the warring States’) (State’ (Prosecutor v. Dusko Tadić, § 70.) do suggest that IHL applies to the entire territory of a state even if hostilities are geographically confined.

The 2016 ICRC Commentary confirms this interpretation, but notes that ‘the applicability of humanitarian law in the whole of the territory of a State party to the conflict does not mean that all acts within that territory therefore fall necessarily under the humanitarian law regime. As noted by the ICTY, a particular act must be ‘closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict’ for that act to be committed in the context of the armed conflict and for humanitarian law to apply…The applicability of humanitarian law to a specific act therefore requires a certain nexus between that act and the non-international armed conflict. Acts that have no such connection to the conflict generally remain regulated exclusively by domestic criminal and law enforcement regimes, within the boundaries set by applicable international and regional human rights law’ (para. 460).

Given the high volatility of the armed groups’ use of violence in certain conflicts (for example kidnapping or suicide bombings in a capital, while the main hostilities are located elsewhere), I believe that the application of IHL to the entire territory of a state is the correct option so as to be able to establish the criminal responsibility for war crimes that might be committed by the parties to the conflict and to ensure the broadest possible protection of civilians.

Joint Blog Series on International Law and Armed Conflict: Ashley Deeks on Common Article 3 and Linkages Between Non-State Armed Groups

Wed, 10/04/2017 - 12:00

The second post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Common Article 3 and Linkages Between Non-State Armed Groups’- by Ashley Deeks (University of Virginia School of Law) is now available over on Lawfare.

Here’s a snippet:

Assume State A finds itself in a NIAC with a NSAG – call it “Group X.”  What happens if and when another NSAG – call it “Group Y” – begins to provide certain assistance to Group X?  At what point does Group Y become part of the State A/Group X NIAC, and thus become subject to military force by State A?  This question has arisen in a variety of scenarios, including in the interactions between core al Qaeda and al Qaeda in the Arabian Peninsula and between al Qaeda and al Shabaab.

[…]

Approach 1 – State A should never treat Group X and Group Y as participating in single armed conflict.  Instead, State A should treat its fights with Group X and Group Y as two distinct NIACs.

[…]

Approaches 2 and 3:  These two approaches analogize from the concept of co-belligerency, which originated in international armed conflicts. Approaches 2 and 3 (described below) take different positions on what that concept requires.

[…]

Approach 3 – Assistance by Group Y to Group X in Group X’s NIAC against State A is enough to render Group Y a functional co-belligerent, even if Group Y does not directly engage in hostilities against State A.

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Approach 4 – Use the ICRC’s “direct participation in hostilities” (“DPH”) factors to evaluate Group Y’s efforts in relation to the State A/Group X NIAC.

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