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Protection of Civilians Symposium: Some Thoughts on Legal Obligations for UN Peacekeeping Operations to Protect Civilians

by Marten Zwanenburg

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

Let me start by saying that the publication of “Protection of Civilians” is very timely. As Ralph says in his introductory post, this topic is a well-established topic in international law but controversial in practice. The latter is particularly true in the context of peacekeeping operations.

In this post, I will focus on Siobhan’s chapter in the book. I will return to Mona’s chapter in a separate post.

Siobhan’s main proposition, with which I fully agree, is that relevant to peacekeeping operations are legal obligations to protect that are largely derived from international human rights law (IHRL), International Humanitarian law (IHL), and the law of international responsibility. I also agree with her that these obligations are relatively weak, but have important operational implications for UN missions. Siobhan’s contribution is especially important because it tries to tease out the latter, thus making the issue concrete.

One very interesting question that she raises, is whether the mandate of a UN mission creates obligations for the mission. In other words, if the mission fails to carry out its PoC task, can it be held responsible for failure to carry out the mandate?

UNSC resolutions clearly are not treaties, and thus a “breach” of a resolution is not a non-performance of a treaty obligation. An alternative could be to regard the mandate as a unilateral undertaking by the UN. Siobhan states that the majority view is that mandates provide an authorization to act but do not, in themselves, create any legal obligation to do so. However, she adds that some provisions in peacekeeping mandates do imply that at least those particular paragraphs are intended to be obligatory, such as e.g. an obligation report gross violations of human rights “immediately”. I have some doubts concerning the latter conclusion, however. For one, I would be very surprised if the drafters of the relevant resolutions considered that if e.g. UNMISS does not “immediately” report gross violations of human rights to the UNSC, this would constitute an internationally wrongful act. Another consideration is that the examples Siobhan gives all relate to things that the operations must do vis-a-vis the organization itself. In other words, they say that one part of the UN must do something vis-a-vis another part of the UN.

A very important conclusion that Siobhan draws from this is that, even in the absence of a specific task in its mandate, a UN peace operation has an obligation to protect. She does not pursue this thought further, but it is nevertheless interesting to do so. It makes me wonder whether it can be argued that this would mean that the UNSC must give every peace operation the task of protecting civilians, or that the UNSC must provide a peace operation with sufficient capabilities to enable a peace operation to carry out its PoC mandate/responsibility.

Siobhan discusses IHRL and IHL as possible sources of legal obligations on UN peace operations to protect civilians. In doing so, she focuses mostly on specific rules under these regimes and their interpretation. The legal basis for the UN being bound by these rules in the first place is discussed only very briefly, and almost seems to be taken for granted. This is of course a perfectly legitimate choice, since a book chapter does not lend itself to detailed analysis of every aspect, but it does make me interested in her underlying argumentation. This question will however probably become increasingly theoretical, as the notion that the UN is bound is increasingly accepted and the UN increasingly implicitly or even explicitly says so itself. In this sense the emphasis that Siobhan places on peremptory norms as those norms by which the UN is bound at a minimum, comes across as quite conservative.

Her reliance on articles 14 and 42 of the DARIO, on the other hand, seems somewhat too liberal. My own feeling is that state and organizational practice may not be sufficient to conclude that these articles have a customary law status (yet).

Another important question raised by Siobhan is the relationship between the obligations of the UN and those of the troop contributing states (TCC). Siobhan states that according to a number of courts, human rights violations of a UN Peacekeeping force may be attributable to the TCC, and possibly to both the UN and the contributing state. In discussing this issue, she focuses primarily on the exercise of (extraterritorial) jurisdiction, rather than on attribution issues. The attribution question is however highly interesting. Siobhan refers inter alia to the Nuhanovic and Mustafic cases. In these cases, the Dutch Supreme Court held that in the very specific circumstances of that case, conduct of Dutch peacekeepers could be attributed to the TCC. One may wonder whether courts would be willing to go even further and hold a TCC responsible for conduct that is a priori attributable to the UN. Arguably, the Bosphorus line of case law of the ECtHR could form the basis for such a finding.

The most important part of Siobhan’s contribution to me is the section on accountability. The usefulness of establishing whether or not the UN has legal obligations to protect civilians loses much of its relevance if there is no forum where a breach of those obligations can be invoked, Siobhan points to the extensive immunity of the UN, which as it is practically applied arguably goes beyond what is reasonable and necessary for the independent functioning of the organization. She rightly stresses that it is important that the Organization establishes mechanisms that promote accountability beyond legal and claims processes. This does not take away from the importance of also having adequate claims processes that take into account the human right of access to a judge. A recent statement by a UN spokesman relating to the Haiti cholera crisis might mean that the UN is looking at ways to increase its accountability but it is clear that it has a long way to go.

Without adequate mechanisms, it may be that judges will start chipping away at the immunity of the UN. Although hitherto judges have been very reluctant to set aside the immunity of the UN in particular, it may be that they will become increasingly willing to do so if the situation persists. Alternatively, claimants may try to turn to TCC, which they may perceive as easier to hold responsible than the UN itself. The Dutch Srebrenica cases could be seen as a first manifestation of this. If this would indeed become the trend, it could have precisely the result that then UNSG Kofi Annan invoked for an expansive reading an application of UN immunity and that is cited by Siobhan: “if we allowed our peacekeepers to be brought to courts and tried over matters like this, that would be the end of peacekeeping.”

Protection of Civilians Symposium: Will an Improved Legal Framework Affect the Situation on the Ground?

by Ray Murphy

[Ray Murphy is a Professor at the Irish Centre for Human Rights, School of Law, National University of Ireland Galway. This post is a part of the Protection of Civilians Symposium.]

Although there have been many pronouncements and reports on the need to protect civilians, it is debatable if this has translated into increased security on the ground. The emphasis seems to have been placed on the principle of protection rather than the actual result. This is a consequence of the gap between rhetoric and reality in many instances.

The legal framework for the protection of civilians in armed conflict can be found in international humanitarian law and international human rights law. I agree with the legal analysis outlined by Prof. Wills. Much of what she outlined was qualified, as many of the legal issues are not so clear-cut. Although it is evident that peacekeeping operations must comply with international human rights obligations, the scope and extent of the obligations is ambiguous. Nevertheless, human rights law has potentially more relevance for the protection of civilians.

I am not convinced that a ‘paper trail’ of security assessments and responses will necessarily have a huge impact. My fear is that it will be manipulated by military and other mission components and a policy of ‘cover yourself’ will be adopted by those on the ground. In this way a paper trail could even facilitate inertia rather than spur components to real action.

At the same time, the issues raised by Mona Khalil have much validity. Command and control of multinational operations and the related issue of attribution or responsibility also remain fundamental to UN peacekeeping. Operations can also be characterised by bureaucracy and a top-down approach to decision making that is cumbersome and inefficient. This can often be invoked as an excuse for inaction.

Obviously we all want to see a more effective PoC policy implemented. The UN human rights due diligence policy and launch of Human Rights Up Front campaign have helped. However, some of the confusion might be resolved by a Secretary-General’s bulletin setting out the applicability of human rights provisions to peace operations. Military components prefer to evaluate situations through the prism of international humanitarian law as this is more familiar territory in most cases. However, mainstreaming human rights in peace operations should be the priority and an international human rights framework outlined governing all UN operations. A bulletin could help clarify a range of issues, including the use of force and the positive obligation to protect, along with detention and reporting, and investigating violations and abuses.

When the UN finds itself confronting armed criminals, the human rights framework is the most appropriate. This does not preclude the triggering of international humanitarian law if and when a situation escalates to that of armed conflict.

Robust forms of peacekeeping involving the use of force, whether in self-defence or defence of the mandate, are common today. While there is a link between neutralizing armed groups and protection of civilians, they are not the same thing and offensive military operations risk retaliation against vulnerable civilians.

The so called Brahimi report had expressed dissatisfaction with the inability of peacekeepers to prevent violence and attacks on civilians. It deployed the ‘mismatch between desired objectives and resources’ and recommended the adoption of a PoC mandate and the capacity to enforce this in future operations (United Nations, Report of the Panel on UN Peacekeeping Operations, UN, A/55/305-S/2000/809, 23 August 2000, paras. 62-63). In so doing it was also blurring the distinction between traditional peacekeeping and peace enforcement operations. Many of the major contributing states were open to such a policy shift as it had become evident that they would no longer agree to participation in inadequately prepared and supported operations. This was especially so among the powerful states that had traditionally avoided participation in UN led operations and had a preference for UN approved missions led by NATO or a selected lead nation.

Any reasonable interpretation of the mandate and series of UN resolutions prior to the creation of the Force Intervention Brigade (FIB) in the DRC provide ample authority for coercive measures beyond the traditional self-defence mode. Unlike the creation of the FIB, the special measures (e.g. joint protection teams, community alert mechanisms, mobile operating bases) adopted by MONUC/MONUSCO, albeit with limited effectiveness, did not meet with opposition from humanitarian agencies or other third parties and did improve the situation for civilians.   It will be interesting to see how the Regional Protection Brigade in South Sudan interprets its PoC mandate and implements this on the ground. How will it distinguish itself from the FIB in the DRC?

A recurring flaw in missions to date has been the lack of commitment of the troop contributing states to the mandate. There appears to be a similar situation with regard to some contingent part of UNMISS in South Sudan. Furthermore, as discussed by Mona Khalil, contingent commanders consult with national governments before carrying out military operations or following the orders of the Force Commander. Such behaviour is common in all peacekeeping operations and is often to ensure that the action being pursued by the UN operation is not inconsistent with national policy as much as interests. Separate or parallel chains of command are not conducive to military effectiveness.

I am not sure that making commanders and other senior personnel criminally accountable for their failure to act would work in practice. But I would suggest adopting the human rights mechanism of naming and shaming contingents or components that failed to take appropriate action to fulfil the PoC mandate when they had the means and opportunity to do so. I would suggest that national authorities take disciplinary measures against commanders for dereliction of duty where appropriate, but looking at the response to sexual abuse and exploitation to date, this is not likely to be very successful.

After the widespread killings at the village of Mutarule in the DRC in 2014, the MONUSCO Force Commander was reported to have become very engaged and instructions were issued telling contingents that such atrocities were not acceptable and should be stopped. Such inaction reflects the broader culture of lack of commitment and even indifference displayed by military contingents part of the Force.

What is most needed is engagement and commitment by all those military, police and civilians in positions of authority. Without that, an improved legal framework is unlikely to change the situation on the ground.

Protection of Civilians Symposium: Why are UN Peacekeepers Failing to Protect Civilians?

by Mona Khalil

[Mona Khalil is a Legal Advisor with Independent Diplomat (ID) and formerly a Senior Legal Officer in the UN Office of the Legal Counsel; the views expressed herein are her own and do not necessarily represent the views of either ID or the UN. This post is a part of the Protection of Civilians Symposium.]

The protection of civilians (POC) mandate in UN peacekeeping was borne out of the failed UN mandates and genocidal massacres in Srebrenica and Rwanda.  Since the first POC mandate was entrusted to UNAMSIL in 1999, the Security Council (UNSC) has consistently authorized UN peacekeeping operations (UNPKOs) with explicit POC mandates and with explicit Chapter VII authority to use force to fulfill that mandate. UNPKOs no longer lack the authority, and in fact have a responsibility, to protect civilians from threats of physical violence.

Despite the POC mandates’ intended message that, never again, would UN forces stand by while civilians are being massacred in their areas of deployment, both the  UN Office of Internal Oversight Services and more recently the High-Level Panel on Peace Operations expressed serious concerns regarding the failure of UNPKOs to fulfill their POC mandate. The most recent events  in Malakal and Juba in South Sudan tragically highlight these failures and underline these concerns.

Both the relevant UNSC resolutions and the applicable rules of engagement (ROE) confirm the authority to use force, up to and including deadly force, to protect civilians against physical violence and the threat thereof.  Commanders and contingents alike have too often  failed to exercise their authority or to fulfill their duties in this regard. Such failures may, at least in part, be attributable to the following legal considerations.

A. Confusion regarding the legal terminology of the POC mandate

Several parts of the standard formulation authorizing UNPKOs to use force to protect civilians have been the subject of differing interpretations in the field — including a degree of confusion and possible conflation of three related but distinct protection concepts: R2P, the protected status of civilians under IHL, and the POC mandate.  While R2P is limited to genocide, war crimes, ethnic cleansing, and crimes against humanity, the POC mandate covers any and all forms of physical violence. While IHL imposes a negative obligation to avoid harming civilians,  the POC mandate involves an affirmative responsibility to proactively protect them from harm.   Moreover, while the proviso ‘within its capabilities and areas of deployment’ is intended to recognize the constraints on the ability of UNPKOs to deploy throughout the entire territory, the proviso has been misused as an excuse for unwilling military contingents to remain on their bases or in the immediate vicinity thereof fearing or failing to go to where the danger is.

B. Undue reliance on the primary responsibility of the host State

The phrase “without prejudice to the responsibility of the host Government” is intended to confirm that the UNPKO’s POC mandate does not relieve the host Government of its ultimate responsibility for the protection of civilians.  While the POC mandate includes assisting host governments to fulfill their responsibility, it also requires UNPKOs to act independently when the host Government is unable or unwilling, and even to take action against host Government forces where and when they pose a threat to civilians.  The POC mandate therefore applies “irrespective of the source of the threat”.  The first explicit reference to this understanding of the POC mandate appeared in UNSC resolution 2155 (2014), which mandated UNMISS to protect civilians under threat of physical violence “irrespective of the source of such violence’. Accordingly, the UNMISS forces cannot rely on any such legal obstacle to explain their failure to protect civilians from South Sudanese government forces in Malakal and Juba.

C. Failure to respect the command authority of the UN Force Commander

Pursuant to the UN ROE, the Force Commander has command responsibility to order the necessary and permissible use of force to fulfill the POC mandate.  To the extent that UN military contingents continue to be subject to their national command and exclusive criminal jurisdiction,  however, many contingents and their commanders do not fully accept the unified command and operational control of the UN Force Commander..  The resulting dual lines of authority undermine the authority of the UN Force Commander, the responsiveness of national contingents to his or her orders, and ultimately the credibility and effectiveness of the UNPKO. National caveats imposed by the TCCs further undermine the unified command and impede the uniform application of the ROE.

D. Lack of accountability

Under the POC operational concepts and strategies,  UNPKOs are intended to be constantly assessing threats and proactively taking measures to prevent, pre-empt or respond to those threats. The consistent reluctance or failure to use authorized force leads to escalation by virtue of the consequent perception that UN forces are unwilling or unable to act thereby undermining the UNPKO’s deterrent capacity and inviting further attacks against civilians as well as against the UNPKO itself. There has been little to no accountability for the failure of UNPKOs to fulfill their POC mandates or for the failure of UN Force Commanders to fulfill their command responsibility.  Equally disturbing is the lack of accountability for failures to obey the UN Force Commander’s lawful orders when and where they are duly given.

E. Inhibition to use force arising from fear of losing protected status under IHL

A UNPKO may indeed become a party to an ongoing non-international armed conflict where and when it engages in sustained or intensive armed hostilities, whether acting in self-defense or in furtherance of the POC mandate. In reality, when peacekeepers are deployed to neutralize threats in operating environments were there is no peace to keep, the likelihood of that eventuality is exponentially increased. The eventuality becomes an inevitability where the mandate itself places the UN forces in direct opposition with named actors, as was the case with MONUSCO in the DRC.

F. Constraints arising from traditional principles of UN peacekeeping

Many TCCs often invoke the traditional principles of UN peacekeeping to avoid using force in a manner consistent with the demands of the POC mandate failing to recognize the evolving nature of UN peacekeeping and the related principles which have evolved with it.

Consent: Host country consent continues to be the primary distinction between peacekeeping and peace enforcement. While the Security Council must invoke Chapter VII in the operative paragraphs authorizing UNPKOs to use force beyond self-defence, by referring to Chapter VII in the chapeau of an establishing resolution, the Security Council obfuscates the fact that the UNPKO and its mandate are being established with the consent of the Government further blurring the distinction between UNPKOs and the Chapter VII enforcement operations.

Impartiality: To the extent that the POC mandate requires UN peacekeepers to protect civilians regardless of the source of the threat, as a matter of policy, the POC framework arguably upholds the principle of impartiality. As a matter of practice, however, the unwillingness or inability of UN forces to respond to clear violations by host government forces, as we have seen most recently in South Sudan, calls into question both  the impartiality and the credibility of UNPKOs.

Self-defense: The inherent right of self-defence remains the primary basis for the use of force by UN peacekeepers and the use of force  remains a last resort in carrying out the  POC mandate. While the UNSC does not expect, and the levels of troops authorized do not allow, UNPKOs to prevent or respond to every threat within the territory, the UNSC, at a minimum, expects UNPKOs to act in the face of large scale and/or systematic attacks against civilians. Along with the mandate and authority given to them, the UN forces acquire a responsibility to use all necessary means including deadly force, to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within their areas of deployment.


In addition to heinous acts of commission, including sexual exploitation and abuse by UN peacekeepers, which destroy the moral credibility of UNPKOs, acts of omission, such as the repeated failures to protect civilians from physical violence, undermine their operational credibility. More than fifteen years after the first explicit POC mandate was authorized by the UNSC, legitimate questions linger regarding UNPKOs readiness, willingness and ability to effectively carry out the POC mandate. While the willingness of TCCs to put their troops in harm’s way in the service of peace is noble, it cannot be taken for granted where and when such peace is absent or elusive. Nonetheless, POC is not only an explicitly mandated authority accorded to UN peacekeepers but also an affirmative duty expected from them.

Protection of Civilians Symposium: The Obligation to Protect Civilians     

by Siobhan Wills

[Siobhán Wills is a Professor of Law at the Transitional Justice Institute, Ulster University, Northern Ireland. This post is a part of the Protection of Civilians Symposium.]

In 2014 the UN Office of Internal Oversight Services published an ‘evaluation of the implementation and results of Protection of Civilians mandates in United Nations peacekeeping operations’ which:

noted a persistent pattern of peacekeeping operations not intervening with force when civilians are under attack…Partly as a result…civilians continue to suffer violence and displacement in many countries where United Nations missions hold protection of civilians mandates.

One of the many questions arising from this report is whether UN peacekeepers that have a mandate authorizing them to use force to provide protection are legally obliged to take action to protect civilians that are being attacked or about to be attacked.

My chapter in Protection of Civilians (eds Haidi Willmot, Ralph Mamiya, Scott Sheeran, and Marc Weller), argues that peacekeepers do have protection obligations but they are not obliged to use force to protect civilians even if the Security Council resolution mandating the mission authorizes them to do so, and even if the mission is well positioned to be able to use force in the particular circumstances. This is not a shortcoming in the legal regulation of peacekeeping. If peacekeepers routinely avoid using force to protect civilians when to do so would save lives, host state residents are unlikely to hold the mission in high regard; but to legally oblige a commander to use force to protect civilians on every occasion on which it would be feasible to do so, would likely cause serious operational problems and might prompt attacks on civilians in order to tie up mission personnel.

Traditionally peacekeeping mandates have been regarded as having a powers-creating character that does not create any obligation to act. Some peacekeeping mandates contain paragraphs that it would be difficult to interpret as merely powers-creating. For example S/Res 1996 authorized the UN Mission in South Sudan (UNMISS) to ‘report immediately’ gross violations of human rights to the Security Council. It makes no sense to interpret ‘report immediately’ as purely powers-creating unless the addressee is normally prohibited from reporting immediately – otherwise the adverb ‘immediately’ would be redundant.  But, such inconsistences notwithstanding, Security Council resolutions as a whole do not appear to be drafted with a view to creating obligations. The phrase ‘all necessary means,’ which is used to authorize force, is a euphemism and hence inherently opaque as to the scope and nature of the obligations that follow from its use. But the fact that a Chapter VII mandate authorizing use of force to protect of civilians does not create an obligation to use force (even if it is the only means of saving lives), does not mean that the mission has no obligation to provide protection pursuant to the ‘all necessary means’ authorization set out in the mandate.

Although the UN is not a party to any international treaties, it has a duty to uphold the human rights principles promulgated through the human rights regime it has created. At a minimum the UN is bound by peremptory norms, by its Charter, and by its own human rights undertakings as reflected in the resolutions and bulletins it has promulgated concerning itself. Troop-contributing states are directly bound by the human rights treaties to which they are party but a troop contributing state’s positive obligations under those treaties only apply extraterritorially to the extent that the state’s jurisdiction extends to the situation, which for the most part is based on whether the state has control over territory or over persons. But the human rights obligations of the UN itself (as distinct from the obligations of its member states) are not limited by territory – it has none. Provided the UN’s protection activities do not exceed the authorization set out in the mandating resolution, the Security Council mandate counters any ‘sovereignty’ based objections from the host state.

The Aide Memoire to the Secretary-General’s Human Rights Up Front (HRUF) Plan of Action states that  ‘[p]rotecting human rights is a core purpose of the United Nations and defines our identity as an organization.’ The HRUF Plan of Action ‘is designed primarily for settings where the UN does not have a political or peacekeeping mission’ but ‘its spirit can and should also be applied to “mission settings”’. The HRUF Plan of Action states that the UN will ‘put the imperative to protect people, wherever they may be, at the heart of UN strategies and operational activities.’ This is a clear positive commitment on the part of the UN to protecting human rights and protecting people from gross violations of those rights. In the case of Chapter VII mandated peacekeeping missions this commitment is usually backed up by Security Council authorizations to use ‘all necessary means.’ S/Res1894 states that ‘mandated protection activities must be given priority in decisions about the use of available capacity and resources.’

The existence of a protection of civilians mandate gives rise to the presumption that the mission is aware that civilians are at risk. In the event of a mission’s failure to protect, it will not be enough for the UN to say after the event that it tried to uphold the commitment it has made to ‘protecting people wherever they may be:’ it must be able to show it by producing evidence of the protection plan drawn up in response to the know threat to civilians and the efforts made to implement it. UN missions, as traditionally conceived, were thought of as having predominantly negative obligations, essentially to do no harm – and therefore they had considerable flexibility within the confines of its mandate as to how that mandate should be implemented, and also as to how decisions relating to the mandate are made, documented, and communicated. But an obligation to protect cannot be achieved simply by refraining from action. In order to fulfil a positive obligation to protect, in a situation where it is known that that attacks on civilians are likely, the mission must assess the probability, seriousness, and location of likely attacks; draw up plans to counter the risks to civilians that it has concluded are likely; document those plans; and pass that information up the chain of command to a level of seniority that can take responsibility for approving the effectiveness of the plans in light of the scale of likely harm. The mission is not obliged to use force; but it is obliged to carry out its protection plans, unless there is some intervening reason that renders the original response plan ineffective or harmful. Therefore, if the UN undertakes to protect people from violence and the Security Council has mandated the mission to use ‘all necessary means’ to provide that protection, that undertaking should shape the way the mandate is carried out both at the macro level (e.g. initial assessment of risks and operational planning in light of them) and at the micro-level (e.g. documenting and reporting of protection plans and of the steps taken to implement them at local level), and the continuous updating of protection plans in light of the continuous assessment of risks, assessed at both local and general level.

Human Rights Hypocrisy — Special Rapporteur for Torture Edition

by Kevin Jon Heller

PassBlue published a very disturbing article yesterday about nominations for five vacant UN Special Rapporteur positions. According to the article, although the President of the Human Rights Council, South Korea’s Choi Kyonglim, has endorsed four of the selection committee’s five first choices, he has refused to endorse its first choice for Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Karim Khan QC, in favour of the committee’s second choice, Nils Melzer. There is no question Melzer is a wonderful choice — he’s an accomplished scholar, has vast practical experience with the ICRC, and is a great person. The article suggests, however, that there may be a darker reason for Choi not endorsing Khan — Khan’s defence work at various international tribunals:

Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.

Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.

One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)

In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”

The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.

“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”

In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”

John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”

The article is careful to avoid directly attributing these ideas to Choi. But given that Khan is the only first-choice candidate Choi has refused to endorse, it seems highly likely that Khan’s defence work is the reason. If so, that’s shocking. Defending individuals accused of serious international crimes is not inconsistent with human-rights work — it is human-rights work. It’s not an accident that Art. 14 of the ICCPR protects a defendant’s right to a fair trial. After all, show trials are a hallmark of repressive states, from Bangladesh to the United States.

This should be Human Rights 101. For some reason, though, the same “human-rights activists” who condemn unfair domestic criminal trials — special courts in Bangladesh and military commissions in the United States alike — fall silent when it comes to international trials. The tacit assumption — which should embarrass anyone who claims to care about human rights — is that an effective defence is unnecessary at international trials, because investigators always do a good job, the OTP is always motivated by a profound love of justice, judges are always infallible, and defendants are always guilty. All of those things are sometimes true. Perhaps even usually true. But not always. Sometimes an international tribunal doesn’t do its job and an innocent person is prosecuted. And it is precisely the job of skilled advocates like Khan to make sure those defendants are not convicted — or convicted only for crimes they actually committed.

I would say this about any defence attorney. (And of course I’m biased, having been one myself.) But it’s particularly appalling that Khan would be vilified for doing his job — anonymously, of course, because the British academic quoted above is a coward who wants to ensure his slander has no professional consequences. (As if anyone really cares what we academics think!) Khan has a sterling reputation as a defence attorney, no matter how contentious some of his trials might have been. I have never seen anyone claim — nor is there even the slightest evidence — that Khan was involved in the Kenyan government’s misconduct in Ruto. And I say that despite being completely convinced that the Kenyan government did, in fact, commit serious misconduct. The comments by Gaynor and Washburn are thus completely misplaced — and all too typical of the tendency, possessed by people who should know better, to conveniently forget that the right to a defence is a human right. But at least Gaynor and Washburn have the courage to attach their names to their opinions!

Finally, although it shouldn’t matter, it is worth remembering — as the article points out, to its credit — that Khan had a distinguished career as an international prosecutor before moving to the other side of the courtroom. He even has experience representing victims. Does he suddenly forget the importance of victims whenever he is retained to act for a defendant? Or does he simply understand that the rights of defendants are no less important than the rights of the other parties to a criminal trial?

I have no doubt Melzer, whom I’ve had the pleasure to know for more than a decade and think the world of, will make an excellent Special Rapporteur. But Khan would have made a great one, as well — and we are left to simply speculate how skilled Khan would have been at convincing states to cooperate with him, given his rich experience defending senior government officials. I hope, despite how it appears, that Choi preferred Melzer for reasons other than Khan’s work as a defence attorney. But if that is why he bypassed Khan, anyone who cares about human rights — all human rights — should be appalled.

Protection of Civilians Symposium: An Overview of Legal and Practical Challenges of Protecting Civilians in Peacekeeping

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations.]

The protection of civilians is both a well-established topic in international law and also a relatively new and controversial phenomenon in practice. It incorporates aspects of international humanitarian law, international human rights law, international refugee law, as well as the law of jus in bello and the use of force.

Protection of Civilians, a new volume from Oxford University Press co-edited by Haidi Willmot, Scott Sheeran, Marc Weller and me, examines the range of law of practice that impact this topic. The book brings together a number of respected scholars and practitioners, including Jean-Marie Guéhenno, Andrew Clapham, Patrick Cammaert and Hugo Slim, to discuss the protection of civilians from a variety of perspectives. An important aim of this volume is to provide a comprehensive set of views on civilian protection, gathering together views from the often-disparate worlds of international law, humanitarian practice, diplomacy and peacekeeping, and to forge greater coherence.

The full spectrum of civilian protection, however, may be too much to cover in a brief symposium, and we chose to focus discussion on a highly topical but rarely discussed (from a legal perspective) issue: the protection of civilians by peacekeepers. This is topic particularly important to me in work on peacekeeping, though everything in this symposium is written in a personal capacity and does not necessarily reflect the views of the United Nations.

The Security Council first provided a mandate “to protect civilians from the imminent threat of physical violence” in 1999 for the UN Mission in Sierra Leone. Since that time, the Council has provided nearly every UN peacekeeping mission with a protection mandate and today more than 95 per cent of the approximately 100,000 blue helmets around the world work in missions with this mandate. The UN, the United States and NATO have all recently adopted protection of civilians doctrine.

Recent years have highlighted the challenges posed by the protection of civilians mandate, however. Incidents in South Sudan have highlighted the potentially devastating consequences for civilians when peacekeepers are unable to protect them. A 2014 evaluation of the UN Office of Internal Oversight Services found challenges in command and control and confusion over roles and responsibilities. Many of these challenges are practical and operational, as detailed in a recent report from the High-level Independent Panel on Peace Operations; they challenges are inherent to assembling an expansive and diverse set of military and civilian actors from different countries, often working in hugely difficult situations.

Legal aspects of the protection of civilians mandate are rarely discussed, however. Does the Security Council’s language, which is often emphatic, create legal obligations for peacekeepers? If so, of what kind? Recent cases in European courts (see here) have begun to address failures by peacekeepers, including the Mothers of Srebrenica decision that held Dutch peacekeepers responsible under national jurisdiction. Notably, however, these cases did not involve the modern protection of civilians mandate.

Our panelists will address these issues in the coming week. We will begin with posts from two contributors to the book, Siobhan Wills, Professor of Law at the University of Ulster, and Mona Khalil, Legal Advisor to the diplomatic advisory firm Independent Diplomat and a former UN Senior Legal Officer. We will also hear from Professor Ray Murphy of NUI Galway, Marten Zwanenburg, Legal Counsel for the government of the Netherlands, and Professor Kjetil Mujezinović Larsen of the University of Oslo.

On behalf of the other editors, let me express my gratitude to Opinio Juris for what I have no doubt will be an interesting symposium, and many thanks to the esteemed panelists we will have with us for the next few days.

Emerging Voices: The European Court of Human Rights and Women Affected by Enforced Disappearances of Their Relatives

by Grazyna Baranowska

[Grazyna Baranowska is a Senior Researcher at the Poznań Human Rights Centre of the Institute of Law Studies of the Polish Academy of Sciences.]

The nature of enforced disappearances is that it affects whole families, rather than only the individuals who disappeared. While the majority of the forcibly disappeared are men, these disappearances have a strong economic, socials and psychological effects on the wives/partners of the disappeared.

The impact of enforced disappearances on women has been recognized by the Working Groups on Enforced and Involuntary Disappearances. In the Preamble to the General comment on women affected by enforced disappearances it is stated that:

“(…) gender equality and the empowerment of women are essential tools to address the situation that women victims of enforced disappearances face. A gender perspective is crucial in explaining, understanding and dealing with unique disadvantages and obstacles that women face in the exercise of their human rights and to outline solutions to try and address these issues. (…)The experience of the Working Group demonstrates that the effects of enforced disappearances are lived and faced in different ways by women and girls due to gender roles, which are deeply embedded in history, tradition, religion and culture (…).”

International law considers the ‘victims of enforced disappearances’ to be both the disappeared persons and any individuals who have suffered harm as a direct result of a disappearance (art. 24.1 International Convention for the Protection of All Persons from Enforced Disappearance, ICPPED). Even though ICPPED does not have a gendered perspective, the effects of disappearances on women had been discussed since the second session of the Committee of Enforced Disappearances in March 2012. The results of these discussions have been included in the document on relationship with NGO’s: the Committee encouraged integration of a gender perspective in submissions and consultation of women’s organization and women human rights defenders.

The European Court of Human Rights also recognizes that disappearances violate  the rights of a disappeared persons’ families As stated by the ECtHR: “The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty” (Varnava v. Turkey). In Çakıcı v. Turkey, the ECtHR  found that art. 3 of the ECHR was violated with regard to the disappeared persons’ relatives when their suffering has a character and dimension distinct from the emotional distress stemming inevitably from the violation itself.

The court established ‘special factors’ in this context, covering: (1) the proximity of the family tie, (2) the particular circumstances of the relationship, (3) the extent to which family members witnessed the events, (4) their involvement in the attempts to obtain information and (5) the way in which the authorities responded to those enquiries (Çakıcı v. Turkey, par. 98).

Those factors have been developed in subsequent judgments. Recently, the ECtHR has tended to focus on the last aspect – the authorities’ reaction and attitude to the situation when it is brought to their attention (Khachukayevy v. Russia, par. 73; Khava Aziyeva v. Russia, par. 96).

During the first decade of disappearance cases before the ECtHR, the Court attached great importance to the involvement of the applicant in the attempts to obtain information and direct contact with authorities (see for example Nenkayev and others v. Russia, par. 168).  However, this has changed over time. In the applications against Russia, which currently constitute the vast majority of disappearances cases, very often whole families are applicants and the ECtHR has in most cases not differentiated between the applicants, even when some of them were more involved in the inquiries. Nevertheless there are still cases when all of the ‘special factors’ are brought up by the ECtHR.

The “special factors” established by the ECtHR are not gender-sensitive: requiring involvement in the attempts to obtain information might be difficult for a woman especially when – after the disappearance of her partner – she is the single parent of small children. This is further exacerbated in patriarchal societies, were male relatives traditionally represent women in their contact with authorities. Furthermore the illiteracy rate is higher among women in the countries from which the enforced disappearance cases to the ECtHR origin from and in minority communities (such as Kurds and Chechens) the language barrier is an additional obstacle, especially for women.

Due to these factors, a  substantial number of applicants before the ECtHR in cases against Turkey are men. These cases thus result in finding that men– often the brothers of disappeared—as opposed to the wives, are thevictims of violations of article 3 of the ECHR. When the wife is an applicant, she is usually accompanied by male members of the family, as has been the case in the majority of applications against Russia. There is a very limited number of cases submitted solely by women.

Therefore, although women are strongly affected by enforced disappearances of their male relatives/partners, they are less often authors of applications and if men are representing them in contact with authorities due to the ‘special factors’, they are less likely to be found victims of violation of art. 3 of the ECHR. A striking example of such a way of reasoning was a judgment, in which the ECtHR found no violation of article 3 of the ECHR because the wife of the disappeared failed to demonstrate that she was involved in the ongoing investigation pertaining to the disappearance of the husband (Nesibe Haran, 83).

In order to recognize the suffering of women relatives of disappeared persons, it would be beneficial to rethink the “special factors.” This could be done through resigning from the requirement of involvement in the attempts to obtain information. Alternatively the ECtHR could analyze how the applicant is affected by the disappearance and its consequences. This would make it possible for the applicants and their representative to show the particularly difficult situation for the female relatives of the disappeared person. The Court could also – just like other international bodies – completely abandon the “special factors.”

Second, the ECtHR could reconsider analyzing a violation of the rights of family members of a disappeared person under article 8 of the ECHR, guaranteeing right to respect for private and family life. This has been raised previously by a number of applicants, but it has rejected by the ECtHR. Article 8 of the ECHR could be used to recognize the vulnerable situation of female relatives of disappeared persons.

A third possibility would be to recognize at the enforcement stage the particular effect enforced disappearances of family members have on women. In the judgment Alakhanova and others v. Russia the ECtHR provided “guidance on certain measures that had to be taken by the Russian authorities to address the systemic failure to investigate disappearances in the Northern Caucasus.” Currently the Committee of Ministers expects Russia to address those measures in order to implement the disappearances judgments. Therefore, actions that countries should take in order to address specific needs of female relatives of disappeared persons face could be included in the ECtHR judgment.

Emerging Voices: Domestic Regulation of Universal Jurisdiction–The Role of National Prosecutors.

by Amina Adanan

[Amina Adanan is a PhD candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.] 

In common law and civil law legal systems it is the responsibility of the public prosecutor to determine whether the prosecution of an international crime is pursued. The level of this discretionary power and the considerations to be taken into account in making the decision vary from state to state. As such, the prosecutor plays a significant role in the prosecution of international crimes under the universality principle. Notwithstanding the importance of universal jurisdiction, the regulation of the principle at a domestic level is of crucial significance because it dictates the parameters within which the jurisdiction operates in a particular state. In this context, the role of the national prosecutor in the exercise of universal jurisdiction should be examined at interstate forums and also by academics.

Universal jurisdiction (or the universality principle) grants all states the right to prosecute persons suspected of committing certain human rights abuses regardless of where the crime has occurred and notwithstanding the nationalities of the accused person(s) or victim(s). This right exists in both customary international law and in conventional international law. The list of offences to which the jurisdiction applies is: genocide, war crimes (committed in both international and non-international armed conflict), crimes against humanity, torture and international piracy. The right can be found in a range of sources. The Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992) expressly reaffirmed universal jurisdiction over the crime of genocide and crimes against humanity, as was declared in Attorney General of Israel v Eichmann. The right of states to exercise universal jurisdiction over war crimes committed in non-international armed conflict is recognised in rule number 157 of the International Committee of the Red Cross’ Customary International Humanitarian Law database.

Universal jurisdiction over torture is provided under Article 5(2) of the UN Convention Against Torture (UNCAT), while universality over international piracy is codified in the UN Convention on the Law of the Sea. The grave breaches regime of the Geneva Conventions and Additional Protocol I includes an obligation on the High Contracting Parties to prosecute persons, ‘regardless of their nationality’, who are accused of committing grave breaches, so long as they are present in the territory of the forum state (the prosecuting state). Universality is also inscribed in Article 16(1) of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and in Articles 13(1) and 14 of the Convention on the Safety of United Nations and Associated Personnel. In addition, universal jurisdiction applies to some transnational offences such as the destruction of undersea water cables and currency counterfeiting.

Regardless of the existence of the principle in customary and conventional international law, it is up to each individual state as to whether it legislates for universal jurisdiction and under what conditions it is exercised. For example, some states such as Belgium, the Netherlands, Switzerland and others have legislated for universal jurisdiction over war crimes committed in non-international armed conflict, whereas other states, such as Ireland, have not done so. What is more, some states have gone further than the parameters of international law and legislated for universal jurisdiction over additional offences. For example Belarus and Colombia can exercise universal jurisdiction over the crime of ecocide. It should also be acknowledged that where a state has enacted universal jurisdiction over a said offence, it does not necessarily mean that the law is utilised.

One such obstacle to the initiation of an investigation or trial under universal jurisdiction is prosecutorial discretion. As Judge Daniel D. Ntanda Nsereko notes, in some countries the government may direct the prosecutor, while in other countries prosecutors may act of their own accord. In deciding if an investigation or trial is to be pursued, the prosecutor must take into account a series of considerations such as whether a prosecution is in the public interest and whether evidence can be obtained easily.

An example of the gap between universal jurisdiction in international law and its exercise on a national level can be seen in states’ regulation of access to the jurisdictional principle. In some states it is possible for an individual or a group to initiate proceedings in respect of the extraterritorial crime. In fact, some of the most prominent examples of universal jurisdiction cases commenced in this manner. However, this legal mechanism is quickly becoming a thing of the past with many states closing off this means of judicial access. In Belgium, the consent of the Federal Prosecutor is required for the initation of an investigation into international crimes under Article 16 (2) of the Law on Grave Breaches of International Humanitarian Law (August 2003). Prior to 2003 it was possible for individuals to commence such proceedings. Equally, in the United Kingdom, the consent of the Director of Public Prosecutions is required in order for an arrest warrant to be issued against persons accused of having committed grave breaches of the Geneva Conventions under Section 153 of the UK Police Reform and Social Responsibility Act 2011. Prior to the enactment of the UK legislation it was possible for a judge to issue such an arrest warrant upon receipt of a petition by an individual. These legislative changes are the result of the deterioration in international relations with states whose nationals were the subject of universal jurisdiction proceedings. In some states, such as Australia and Canada, prosecutorial discretion in respect of international crimes is not a new phenomenon.

There is little doubt that the exercise of universal jurisdiction will negatively impact the forum state’s bilateral relations with the state of nationality of the accused when the latter does not support the prosecution. This reality has been noted by some states participating in the discussion on the scope and application of the principle of universal jurisdiction taking place at the Sixth Committee of the UN General Assembly. Thus, on the one hand, it is to be expected that an official linked to the executive should decide important matters that are likely to have repercussions for the forum state’s international relations. In many states, the executive has traditionally regulated foreign policy matters. Moreover, the preservation of prosecutorial discretion may provide an incentive for states to sign up to future international treaties that contain a clause providing for the exercise of universal jurisdiction over a particular crime.

However, on the other hand, prosecutorial discretion raises a series of significant issues concerning international criminal justice. First, it begs the question as to whether the obligation to prosecute or extradite that applies to grave breaches of the Geneva Conventions and Additional Protocol I and to torture (as provided in the respective conventions) is fulfilled. The enactment and exercise of universal jurisdiction over these offences is a fundamental element of the obligation to prosecute in both the Geneva Conventions and Additional Protocol I and in UNCAT. Second, concerns arise in respect of the right of victims of serious violations of international law to have access to justice as guaranteed by the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.

Third, the reality is that political considerations are a factor in the decision making process of a national prosecutor and this consideration will result in the exercise of universal jurisdiction being biased in support of the interest of powerful and influential states. In practical terms, relations with powerful trading allies are likely to be taken into consideration in determining whether or not a case should proceed. In 2014, pressure placed on the Spanish Government by the Chinese authorities, after an arrest warrant was issued by a Spanish judge for alleged international crimes committed in Tibet, resulted in significant restrictions to the Spanish law on universality. An exception to this proposition is the ‘US torture case’ in Germany. Here, the German Federal Prosecutor initiated a ‘monitoring procedure’ into alleged torture committed by US officials against persons while in CIA detention and overseas facilities, following the publication of the US Senate Select Committee on Intelligence Report on CIA Detention. (The monitoring procedure is still pending). Indeed, it is often said that universal jurisdiction operates in favour of the interests of influential states, predominantly from the Global North. The recent prosecution of Hissène Habré by Senegal and the ‘Zimbabwe Torture Docket’ case in South Africa may be cited against this contention. However, the reality of realpolitik is that the nationals of certain states will not be tried under the universality principle.

Universal jurisdiction is a rationale-based jurisdiction. The rationale for the exercise of universal jurisdiction is that the offences to which the jurisdiction applies are so heinous that they impact the whole of humanity. The principle fills an important void where there is no prospect of a domestic prosecution in the territorial state or in the state of nationality of the accused (often these are the same). Nonetheless, cases where the interests of the state of nationality of the accused align with the interests of the forum state are the cases most likely to proceed. Adding foreign policy considerations into the mix eschews the original rationale for universal jurisdiction. During the discussion at the Sixth Committee, some states have called upon the creation of guidelines on the exercise of universal jurisdiction. In the event of any such guidelines being formulated, it is imperative that the role of the prosecutor be examined in the deliberations. In particular, a balance must be struck between prosecutorial discretion and the need to prevent impunity for the worst atrocities.

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

Emerging Voices: ‘Sovereignty in the Age of Global Terrorism’ What is the Role of International Organizations?

by Myriam Feinberg

[Dr Myriam Feinberg is a Postdoctoral Fellow at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa. The topic addressed in this blog post is based on her monograph Sovereignty in the Age of Global Terrorism – The Role of International Organisations published by Brill/Martinus Nijhoff in May 2016.]

The attacks of 9/11 brought terrorism to the international stage. They raised many legal questions, both on the nature of terrorism itself and on the responses to the phenomenon. One of these questions is the role of international organisations in addressing the terrorist threat, and the ensuing question of the place of States in the international community. More generally, I contend that this can be examined in the wider context of state sovereignty, even though a number of international law analyses consider the concept of State sovereignty obsolete or in need of reform.

It is clear that the concept of sovereignty has evolved and that its validity can be challenged. Its definition was never completely clear but it definitely does not equate absolutism anymore. In fact, sovereignty is today considered to include a number of responsibilities for States. The Global Trust Project for instance, looks at sovereigns as ‘trustees of humanity’ and aims to examine the obligations that States and international organisations have towards various stakeholders, including foreign stakeholders.

However, the notion of sovereignty is also still frequently used as a narrative by States in order to impose certain domestic measures or to question territorial challenges. This is exactly why, to my mind, sovereignty is a useful frame of reference for counterterrorism, an area where issues of legitimacy and power are crucial: not as an ideal concept, not as a strict and defined notion, but rather, as the thermometer of how States consider their status, obligations and capacities in international law and their willingness to work alongside international organisations, especially in order to address security issues.

This post examines State sovereignty in the context of post-9/11 counterterrorism and focuses both on the ability of international organisations to adopt and enforce counterterrorism measures and on the practical example of terrorist asset freezing sanctions.

Terrorism challenges the sovereignty of a State because it questions the State’s ability to protect its citizens against violence and therefore, the States needs to be perceived as acting against it. After the events of 9/11, it also constitutes a challenge to the nature of the State in international law and to the international community as a whole.

In parallel, the attacks of 9/11 questioned the existing counterterrorism regimes of States because they showed that national legislation and jurisdiction were not sufficient to deal with this major issue. In other words, traditional responses appear to have failed and terrorist threats seem to have superseded territorial and nationality concepts. Yet, if terrorism constitutes a challenge to the concept of State sovereignty, any international response will also inherently challenge State sovereignty: since security is a core component of State sovereignty, the actions of international organisations in counterterrorism mean that the State is not the only actor to deal with security threats in its own territory. Instead, international and regional organisations have become fundamental actors in counterterrorism.

This tension between the two challenges to sovereignty is particularly interesting and it shows the trade-offs that States will face and the compromises they will need to adopt in order to balance the protection of their citizens and territory with their desire to retain the primary responsible actor in national security.

In practice, I argue that in the case of counterterrorism, sovereignty remains relevant for the following two reasons.

Firstly, terrorism concerns national security and States consider that they have the primary duty in this regard, with a view to protecting their citizens. This involves sensitive information, as well as political decision-making. In practice, this is a considerable obstacle to true global counterterrorism and it questions whether international organisations can truly make an impact on domestic counterterrorism legislation.

Secondly, the absence of an international definition of terrorism but more significantly, the lack of an international court with specific jurisdiction on terrorism and enforcement power further question the possibility of an international counterterrorism regime. In fact, while there is now an extensive international framework to deal with terrorism, the need for domestic implementation keeps the primary responsibility with individual States.

To further make this argument, we can look at the case of terrorist sanctions: the 2008 Kadi case of the European Court of Justice was a ground breaking decision that re-defined conflict of norms, although more recent case law, such as the 2016 Al-Dulimi case continue to develop the theme of relationships between international organisations and States, as well as between various international organisations.

These cases first show the focus of counterterrorism regimes on executive measures. The nature of terrorist threats has led to a number of emergency measures that took place without the balance of a judicial review or parliamentary oversight. In addition, the sanction regimes of the UN and the EU, as well as their domestic implementation, show the increasing cooperation, in a circular way, between the executive bodies of States and international organisations. Executive measures are the preferred way for counterterrorism for reasons of speed, secrecy and separation of powers. Moreover, the concerted way in which States and international organisations adopt these measures enables a consistency against the evolving threat of international terrorism. In this respect, the sovereignty of States is maintained in that the policy and legislation decided by domestic governments will be replicated at the international level, which is based on an intergovernmental model.

Yet, cases on terrorist sanctions, and in particular cases since Kadi, are also a testimony to the judiciary’s more recent attempt to protect human rights in the context of counterterrorism. In this respect, the main difference between regional organisations and the UN is that most of the former include a judicial enforcement mechanism within their mandate. This has been crucial in the context of counterterrorism, in particular, in order to balance human rights concerns with security needs. The various organisations have set some human rights standards for addressing terrorism within their counterterrorism regimes, but have also made a significant impact through their courts’ case law regarding human rights protection, in particular the EU and the Council of Europe. This role is fundamental given the targeting of individuals, rather than States, by the sanctions regimes.

On the other hand, the case law has created legal uncertainty with regards to the hierarchy between norms and conflicts between legal orders that would traditionally give precedence to the Security Council and its binding resolutions. States condemned by the European courts will want to ensure that their UN obligations do not clash with European human rights. In that respect, this might be the biggest impact on State sovereignty.

The framework of State sovereignty allows all these considerations to be brought to light. It shows that most of the measures adopted by international organisations will tend to contribute to States’ security agenda by remaining intergovernmental. Yet, it also evidences that the

concept of sovereignty as a responsibility to fulfil human rights obligations is continuing to develop, through regional courts. This is all the more significant because of the risk of sovereign abuse that often characterises counterterrorism in relation to to security measures and the focus on executive measures.


Emerging Voices: Is the Margin of Appreciation Accorded to European Union Member States Too Wide, Permitting Violations of International Law?

by Jenny Poon

[Jenny Poon is a Doctoral Candidate at the Faculty of Law of Western University, Canada and a Barrister & Solicitor in Ontario, Canada. The topic addressed in this post is based on a paper entitled State Discretion on Asylum Claims Procedures: Violation or Adherence to Non-Refoulement? All websites were accessed on 22 July 2016. The author would like to thank Dr. Valerie Oosterveld for reviewing an earlier draft.]


The margin of appreciation is a creation of the European Court of Human Rights (ECtHR), in which the ECtHR grants European Union (EU) member states deference when the national authorities use their discretion to carry out duties under international law, which, it is argued, may at times be accorded so widely, that the margin of appreciation may permit member states to derogate from their international law obligations. The idea that the margin of appreciation is not yet a settled area of the law is reiterated by Greer in his paper. The doctrine first appeared in the ECtHR’s jurisprudence in the case of Cyprus Case (Greece v. the United Kingdom). Despite having an established presence in the jurisprudence of international tribunals, the extent of the doctrine is nonetheless uncertain as argued by Shany in his paper. For instance, international courts and tribunals have issued conflicting decisions on the use of the margin of appreciation. Most notably, the ECtHR applied the doctrine in the Handyside decision, stating that the doctrine applies to domestic legislators and to judicial bodies, while World Trade Organization (WTO) Dispute Settlement Body and its Appellate Body has stated in the Asbestos case that the doctrine applies only to WTO members. In the former case, both domestic legislators and judicial bodies are given a margin of appreciation when applying the law, while in the latter case, only national authorities of WTO member states are given a margin of appreciation when making discretionary determinations.

Despite the law being unsettled with regards to margin of appreciation, this doctrine is nonetheless applied by the ECtHR to show deference to EU member states when the member states use their discretion to carry out international law obligations. Consequently, this interpretation of the margin of appreciation permits the violation of international law in the context of asylum, where it allows EU member states to derogate from their duties of ensuring procedural safeguards, creates multiple and thus inconsistent interpretations, and permits state interests to be placed above the interests of asylum claimants. Clarity in the law is therefore warranted with regards to defining the extent to which “margin of appreciation” applies, and where the line must be drawn to ensure that the vulnerabilities of asylum claimants are properly addressed.

A wide margin of appreciation permits violation of international law

The first argument I wish to make is that a wide margin of appreciation permits EU member states to derogate from their duties of ensuring sufficient procedural safeguards for asylum claimants. International law obligates States to adhere to the procedural safeguards including according asylum claimants with the opportunity to be heard and the right to appeal in the context of an expulsion order pursuant to Article 32(2) and 32(3) of the Refugee Convention. Procedural safeguards come in many forms, which can include the safeguard to ensure that asylum applications are examined for their merits and not permitting instances of bias to affect the decision-making process. This is illustrated in the case of OS v. Ministry of Interior, where the Supreme Administrative Court of the Czech Republic held that the Ministry of the Interior erred in basing its asylum decision to reject an application on an inaccurate assessment of Turkey, thus giving effect to biased decision-making. The Ministry had exercised its margin of appreciation by basing its decision on a biased country of origin report. Having based its decision on a report that was political and that was not an accurate assessment of Turkey at the time, the Ministry of the Interior had biased decision-making. This case demonstrates that a wide margin of appreciation enables the EU member state to derogate from its international duty of ensuring procedural safeguards for asylum claimants, thus violating international law.

Next, I argue that a wide margin of appreciation permits EU member states to create multiple and thus inconsistent interpretations, leading to inconsistency and unpredictability of the law.

When States exercise their margin of appreciation too widely, it permits the creation of multiple and thus inconsistent interpretations of their international law obligations. The ECtHR case of Hirsi Jamaa and Others v. Italy illustrate the differences in interpretation among EU member states on their duties under international law. The ECtHR held that differences in interpretation on asylum decisions can result where there are bilateral treaties signed between the first and subsequent asylum-receiving EU member states. This case illustrates that a wide margin of appreciation permits EU member states to interpret their international law obligations differently. While differences in interpretation may be warranted in some circumstances, such as to accommodate for the unique geopolitical circumstances of different EU member states, if the margin of appreciation is too wide and thus improper, it creates too much room for EU member states to interpret their international law obligations, and result in a divergence among EU member states so wide that would not justify the doctrine’s original purpose. Another problem with a wide margin of appreciation is that it may lead to an increased likelihood of multiple and thus inconsistent interpretations, which may increase the possibility of international law being violated by EU member states.

Finally, I end with the proposition that a wide margin of appreciation permits EU member states to place their state interests above the interests of asylum claimants. EU member states exercise their margin of appreciation when they process asylum applications based on discretion which sometimes entails political considerations rather than merits. An example can be taken from the case of Ireland v. The United Kingdom, in which the ECtHR held that “national authorities are in principle in a better position than the international judge to decide [on the derogation from Article 15 of the European Convention on Human Rights…]. In this matter Art 15(1) leaves the authorities a wide margin of appreciation”. This case is used as an example to illustrate that the margin of appreciation may be accorded too widely in the case of derogation in times of emergency (Article 15), which, when the derogation is based solely upon political criteria, may permit EU member states to violate international law. For example, depending on the political agenda at the time, the EU member state may choose to interpret its duty to process asylum applications either narrowly or broadly, according to state interests at the time, leading to uncertainty and unpredictability of the law for asylum claimants. The case demonstrates that where the margin of appreciation accorded to an EU member state is too wide, the member state may utilize the doctrine to their advantage to promote their political agendas, often at the expense of asylum claimants. This motivation to accomplish state-interested goals permits the violation of international law in instances where interests of the EU member state are placed above the interests of the asylum claimant. It is argued that a wide margin of appreciation allows the EU member state to misuse the doctrine to circumvent their international law obligations. While some may argue that a flexible margin of appreciation would encourage the EU member state to sign on and support the norm, the concern is that, too much flexibility and therefore a margin of appreciation that is accorded too widely, would be detrimental to the asylum claimant given that a well-resourced member state may trump individual rights at any time where it would be in the member state’s interest to do so.


The purpose of this post is to consider the effects of the margin of appreciation doctrine in the context of asylum, where at times this can result in EU member states circumventing their international law obligations. I hope that illustrating the doctrine in this context can encourage the debate on proposing solutions for this perceived problem. It is important that the rights of the vulnerable such as asylum claimants are safeguarded against well-resourced mighty State powers. Therefore, the proper application of the margin of appreciation needs to be clarified in order to avoid EU member states acting outside of the permitted boundaries of the margin of appreciation at the expense of the asylum claimants. One proposed solution is to enlarge the role of the ECtHR to better define what constitutes ‘margin of appreciation’ and construct a framework within which EU member states may operate, while safeguarding the rights of the vulnerable.

Emerging Voices: Can Foreign Investors Enforce International Investment Law in U.S. Courts?

by John F. Coyle

[John Coyle is an Assistant Professor at the University of North Carolina School of Law.]

On June 14, 2016, the Islamic Republic of Iran initiated proceedings against the United States before the International Court of Justice (“ICJ”), alleging that the United States had violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights (“Treaty”) between the two nations.  Iran claimed, inter alia, that the United States had discriminated against Iranian companies, failed to accord these companies the most constant protection and security, and expropriated their property without compensation.  In support of its claim, Iran noted that the ICJ had jurisdiction to hear the dispute pursuant to Article XXI(2) of the Treaty, which provides that “[a]ny dispute . . . as to the interpretation or application of the present Treaty . . . shall be submitted to the International Court of Justice.”

Similar treaty provisions can be found in more than a dozen other treaties of friendship, commerce, and navigation (“FCNs”) negotiated by the United States in the two decades following the Second World War.  At the time, these agreements to submit to the jurisdiction of the ICJ was viewed as a significant milestone in the peaceful resolution of international investment disputes.  In the decades that followed, however, nations increasingly turned to bilateral investment treaties (“BITs”) and investor-state arbitration to resolve such disputes.  It is today common in the academic literature for authors to identify two—and only two—fora whereby the rights granted to foreign investors under FCNs or BITs may be enforced.  The first is the ICJ.  The second is an international arbitral panel.

In a recent paper, Jason Yackee and I argue that this account overlooks a third possible forum—the courts of the United States.  We argue that the FCNs negotiated by the United States in the 1940s and 1950s, most of which remain in force, provide foreign investors with domestically enforceable rights. These FCNs contain promises of favorable substantive treatment that are quite similar to the rights commonly extended to investors through BITs and investment chapters in free trade agreements such as NAFTA and CAFTA.  Unlike NAFTA and CAFTA, however, the FCNs are self-executing and give rise to a private right of action. This means that their provisions may be directly enforced in U.S. courts by private litigants.

This ability to access substantive international investment law through domestic litigation rather than international arbitration is of significant practical and theoretical importance.  It could lead foreign companies to rethink their approach to asserting indirect or regulatory takings claims against governmental entities within the United States.  The choice available to foreign investors who believe that they have suffered a regulatory taking has long been viewed as binary. The investor may either bring a constitutional takings claim before a U.S. court or a treaty-based expropriation claim before an international arbitral tribunal. There was no way—or so conventional wisdom held—for a foreign investor to invoke the enhanced protections afforded by the treaty in domestic litigation. The FCNs make it possible, at least in principle, for foreign investors to litigate takings claims in U.S. courts under international investment law standards rather than constitutional ones.

The ability to access the substance of international investment law through the FCNs also suggests that foreign investors may in some cases enjoy domestically enforceable rights under those treaties that are superior to those accorded to citizens under the U.S. Constitution. The U.S. Supreme Court held in Penn Central that courts must balance three factors in determining whether a regulatory taking has occurred under the Takings Clause: (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation interferes with investment-backed expectations, and (3) the character of the government action. In theory, the test constitutes a neutral attempt to balance the interests of the government against the interests of private property owners. In practice, the test typically results in a finding that no taking has occurred and that no compensation is owed to the property owner.  The standard of protection for regulatory expropriations under international investment treaties, by contrast, is generally viewed as more demanding than the standard of protection set forth in the Takings Clause. Indeed, when the U.S. Congress became aware of this divergence in 2002, it enacted a law directing U.S. trade negotiators to “[e]nsur[e] that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States.”  The treaty negotiators subsequently modified the text of the U.S. Model BIT to effectuate this goal for future agreements.  However, these textual modifications do not affect treaties that were then in existence, a list that includes all of the FCNs.

We acknowledge that there are a number of practical obstacles that would need to be overcome before the FCN revival could successfully occur.  The first is the well-documented reluctance on the part of U.S. judges to directly enforce rules of international law in the absence of a statute expressly directing them to do so.  The second is the fact that FCNs couch their promises to investors in language that is sometimes different from the domestic-law analogues with which U.S. judges are familiar. Judicial unfamiliarity with the language of international investment law may make it more likely for judges to restrict private access to the treaties.  The third obstacle is that U.S. courts have, at least historically, been reluctant to grant rights to foreign nationals while denying these same rights to U.S. citizens. Under our argument, foreign investors would be asking the courts to enforce a treaty provision granting rights to foreign companies that are arguably superior to those enjoyed by U.S. citizens.  While there are scattered precedents in which U.S. courts have recognized such rights in the past, contemporary judges may prove resistant to the idea in practice.

There is also at least one significant doctrinal obstacle that would need to be overcome—sovereign immunity.  In the United States, the state and federal governments generally enjoy sovereign immunity unless they have waived this immunity or consented to suit.  The Supreme Court has stated that the Takings Clause amounts to a de facto waiver of federal sovereign immunity for suits in which a taking is alleged.  Some scholars have argued that the Takings Clause also abrogates state sovereign immunity for constitutional takings claims.  If the takings claim were to be framed as a treaty violation, rather than a constitutional one, then it is unclear whether the state and federal governments could invoke sovereign immunity as a defense.  On the one hand, the Fifth Amendment could be read as a waiver of sovereign immunity with respect to treaty-based takings claims as well as constitutional ones.  This argument derives support from (1) the fact that the text of the standard treaty provision relating to takings closely tracks the text of the Fifth Amendment, and (2) the fact that foreign sovereigns generally do not enjoy immunity in U.S. courts when they take property in violation of international law.  On the other hand, the Fifth Amendment could be read to waive sovereign immunity only with respect to constitutional claims.  This argument derives support from the Supreme Court’s repeated admonition that waivers of federal sovereign immunity must be “unequivocally expressed” and the Court’s consistent practice of “construing waivers of sovereign immunity narrowly in favor of the sovereign.”  To date, there is a dearth of case law on this issue.

It is important to note, however, that sovereign immunity only presents an obstacle with respect to suits against the United States or one of the several States; counties and municipalities do not enjoy sovereign immunity.  Even if a court were to conclude that the state and federal governments could assert sovereign immunity as a defense, FCNs could still serve as a useful check on any regulatory takings conducted by U.S. counties and municipalities.

In summary, the FCNs are not historical relics. They remain in force, and they provide doctrinally meaningful legal guarantees to foreign investment in the United States due to their self-executing character and the fact that they give rise to a private right of action. While the FCNs have not played a prominent role in domestic litigation over the past half-century, it is easy to imagine how they might be relevant in future years. The U.S. government and its sub-federal counterparts interact with FCN-covered investors all of the time. To the extent that the government thinks in advance about the consequences of its actions toward foreign investors, it should at least consider the possibility that an FCN treaty might impose legally enforceable limitations on its freedom of action. Investors who feel mistreated by the government, moreover, should consider the availability of FCN-based causes of action when planning their legal responses.