The Rohingya Genocide Continues

Regina Paulose

International crimes against the Rohingya which has been perpetrated against them for decades continues even after the alarming events of August 2017 that forced over a million Rohingya to flee in to Bangladesh. Since that time there has been little progress made to achieve a long term solution for the Rohingya people. Continue reading

North Korea Sanctions – #Epic Fail

By: Regina Paulose[1]

North Korea (or DPRK) has continued to prove that the sanctions policy against its leadership is a failure. The DPRK has continued to subvert sanctions by earning hard currency through illegitimate means.  It essentially works as an organized crime group. It is important for the international community, in particular the United Nations Security Council (UNSC), to distance itself from its same old paternal routine and think of ways to constructively engage the country so that it can effectively make a difference with regards to proliferation and human rights and so that North Korea can turn away from using illicit channels to raise money. Continue reading

How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

Continue reading

Targeted Killing: Bin Laden As a Legitimate Military Target

WRITTEN BY: DR. ELIZABETH BORG[1]

 

Introduction

After Israel made public a policy of ‘targeted killings’ of alleged terrorists in the Occupied Palestinian Territories[2] this term became common usage, however, it is neither defined under international law nor does it fit into any particular legal framework. According to a UN special report[3] targeted killings are premeditated acts of lethal force employed by States in times of peace or during armed conflict to eliminate specific individuals outside their custody. Moreover according to Melzer targeted killings can be defined as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary) and deliberate.[4] Examples of targeted killings include the November 2002 killing of alleged al Qaeda leader Ali Qaed Senyan al-Harithi and five other men in Yemen, reportedly by a CIA-operated Predator drone using a Hellfire missile[5] and the January 2010 killing, in an operation allegedly carried out by 18 Israeli Mossad Intelligence agents, of Mahmoud al-Mahbouh, a Hamas leader, at a Dubai Hotel.[6]  In this case, Osama Bin Laden was individually selected and intentionally targeted and killed by the United States[7] by means of a helicopter raid after months of decision making and planning. Hence, the killing of Bin Laden can be qualified as a targeted killing.

Targeted Killings and International Law

In a speech on the Obama Administration and International Law, Harold Koh[8] maintained that ‘as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.’[9]

Article 2(4) of the UN Charter enshrines the prohibition on the use of force[10] however Article 51 of the UN Charter provides an exception[11] of self-defence and allows recourse to force on the territory of the State which was responsible for the armed attack on the territory of the Victim State. Moreover, it has been generally accepted in today’s paradigm on the use of force that the ‘armed attack’ does not necessarily have to be attributable to a State, but can also be carried out by a non-State actor[12] although apprehensions exist as to whether a State can use force in self-defence against the territory (‘Territorial State’) where the non-State actor may be present. For example, in the Case concerning armed activities on the territory of the Congo the ICJ held that Uganda did not have the right to exercise self-defence against the DRC because:

there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC. Thus, the lack of attribution between the non-State actors and the government of the DRC served as the inhibiting factor for Uganda to exercise self-defence. [13]

Additionally the dispute of whether, prior to the use of counterforce, consent is needed from the TerritorialState arises.  As a general rule, prior consent from the TerritorialState should be a prerequisite to the use of extraterritorial force on its territory. In the light of these circumstances, a limited exception to this general rule may be allowed when there is an immediate necessity to use force to either halt or repel an armed attack.  Nonetheless, formally requesting consent might not be practical, especially if armed attacks are on-going from the territory of the TerritorialState or, more controversially, when a State wishes to invoke pre-emptive self-defence. Under the Bush administration, the US had openly maintained that the ‘inherent right to self-defence’ encompasses anticipatory self-defence according to existing principles of customary international law.[14] Traditionally, the Caroline incident[15] has been recognized as the classic formulation of the right to anticipatory self-defence.[16] The above implies that if States believe they have the right to use pre-emptive self-defence against non-State actors, there must be unequivocal evidence that the threat is imminent and that the use of force is absolutely necessary in order to halt or repel the impending armed attack.[17]

Referring to Koh’s statement claiming the US is in an armed conflict with al-Qaeda, it was argued by the US that this armed conflict in Afghanistan could spill over onto Pakistan.[18]Assuming this is the case then International Humanitarian Law[19] applies, thus one needs to determine whether this conflict is of an international or non-international character so as to identify the body of rules that applies. The ICTY[20] in the Tadić Judgment defined armed conflict [21] implying that a higher threshold of violence is required for the classification as a non-international armed conflict[22] than an international armed conflict.[23] The latter is satisfied ‘whenever there is a resort to armed force’, whilst the former requires ‘protracted armed violence’ and the membership of an ‘organized armed group’. Although Koh does not explicitly classify the conflict, he mentions Common Article 3,[24] Additional Protocol II[25] of the Geneva Conventions[26] and Hamdi v. Rumsfeld.[27] These suggest that the current US position views the conflict as NIAC.[28] Both types of conflict will now be examined, concentrating upon the principle of distinction.

International Armed Conflict

Under the principle of distinction, the parties must distinguish between combatants and civilians, military and non-military targets. Article 43(2) of Additional Protocol I[29] states that members of the armed forces of a Party to a conflict are combatants having the right to participate directly in hostilities. However, it is difficult to classify al-Qaeda members as combatants because they are not part of the armed forces of a State nor do they fulfil the four conditions laid out in Article 4(A) (2) Geneva III[30] especially since the underlying premise of terrorism involves acts which are contrary with the laws and customs of war. The implication is that a terrorist is a civilian, and can only be the object of attack ‘for such time as they take a direct part in hostilities.’[31] For example, Cassese believed that under IAC, members of terrorist groups are to be regarded as civilians.[32] This is also reflected in the ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities.[33]  The ICRC Guidance states that:

In order to qualify as direct participation of hostilities, a specific act must meet the following cumulative criteria: 1. the act must be likely to adversely affect the military operation or military capacity of a party to the armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and the detriment of another.[34]

 

Another controversial issue is the status of unlawful combatant in IAC. Chief Justice Barak of the Israeli Supreme Court held that terrorists and their organizations in armed conflict of international character with Israel do not fall into the category of combatants, as ‘they do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished.’[35]

 

Non-international armed conflict

Article 1 of Additional Protocol II states that a NIAC is a conflict between the armed forces of a High Contracting Party ‘and dissident armed forces or organized armed groups.’ Meanwhile, Article 13(2) of Additional Protocol II states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack,’ whilst Article 13(3) states that ‘civilians shall enjoy the protection […] unless and for such time as they take a direct part in hostilities.’ This protection is also emphasised by the ICRC Guidance[36] which makes a difference between ‘organised armed groups’ and dissident armed forces[37]suggesting that members of organized armed forces of a non-State Party, e.g. al-Qaeda, are only those who assume a continuous combat function. In view of this one concludes that individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities[38] are assuming a continuous combat function and not entitled to combatant privilege.[39] Additionally, an individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.[40]

 

International Human Rights Law (IHRL)

In the absence of an armed conflict, the legal regime which applies is IHRL.  Alston observes that a law enforcement or state killing is only legal if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).[41]  Another issue that arises is whether the International Covenant on Civil and Political Rights (1976)[42] has extraterritorial applicability. According to the Human Rights Committee, as declared in General Comment 31,[43]Article 2(1) of the ICCPR[44] should be read that each State party would have assumed its obligations under the ICCPR to ‘all persons within its territory’ and ‘all persons subject to its jurisdiction’ and ‘anyone within the power or effective control of that State.’  In view of the fact that Bin Laden was present in Pakistan where the US had no territorial control, the question is whether the US by virtue of the attack had power and effective control over him. It is hard to argue that targeting someone with the intention to capture or use lethal force against them does not amount to an exercise of power or control. The right to life can be regarded as a peremptory norm of customary international law. The right to a fair trial and the presumption of innocence are enshrined as principles in customary international law. This could imply that the United States is obligated to respect Bin Laden’s right to life and the due process of law.

Conclusion

Ultimately, it can be concluded that it is difficult to give a definitive judgment as to the legality of the use of lethal force against Bin Laden due to the lack of certainty of facts of the operation as well as a paucity of a definitive stance on targeted killings under IHL. One must also see which body of laws applies, i.e. IHL or IHRL. If the latter applies the use of lethal force must be absolutely necessary, proportional and thus the undesired last resort. The operation must be conducted in a preventive nature as opposed to punitive nature in order not to amount to an ‘arbitrary’ deprivation of life.[45] In view of the analysis made above, IHL of a NIAC applies meaning that the principle of distinction as well of self-defence must be examined in such a light.  The inherent self-defence serves as a justification for the extraterritorial use of force against a non-State actor in another State. Although Pakistan was not informed beforehand of the operation, and hence no consent was given, Pakistan’s reaction was a very cautious and it did not condemn the US’s actions.[46] This raises the question of precedent and whether cognisance of targeted killing proves the emergence of an internationally customary rule however this is not the case.[47] The legal justifications for self-defence claimed by the US, as explained in Koh’s speech,[48]  are : (i) that under IHL, Bin Laden is a legitimate target; (ii) that he was an imminent threat to the United States. Thus, Koh believes ‘there is no question that he presented a lawful target for the use of lethal force.’ In view of the above, the armed conflict is a result of counterforce to the 9/11 attack however the inherent right to self-defence suggests that force can also be used as a prevention to further attacks.  It can be inferred that because of the nature of this particular operation, the ‘porous frontier’[49] of Afghanistan[50] and Pakistan, Bin Laden being an integral part of al-Qaeda, being significantly responsible for 9/11 and other armed attacks, possibly planning further terrorist attacks, makes Bin Laden a legitimate target as a civilian with DPH as well serves as a justification for self-defence. However, this justifies the use of extraterritorial force, but not the lethal use of force against a targeted individual. The latter has to be examined in view of civilian DPH or membership in an organised armed group.  The fact that Bin Laden was widely recognised as having a leadership position within Al-Qaeda, as well as past experiences and events, fulfils the requirement for a lasting integration into an organised armed group as above-mentioned.  Melzer has argued that ‘in practice, a civilian who regularly and consistently directly participates in hostilities of a belligerent party will almost always be affiliated with an organized armed force or group and, thus, may be regarded as a de facto member assuming a continuous combat function for that force or group. As such, he is no longer considered to be a civilian and loses protection against direct attack for as long as he continues to assume such combat function.’[51] Hence, in view of the above, Bin Laden fulfils the requirement for a lasting integration into an organised armed group making him a legitimate target. However, as the ICRC Guidance suggest, the targeting of Bin Laden must adhere to the principle of proportionality and necessity.[52]  The latter suggests that even if an individual may be targeted, non-lethal means should be contemplated in circumstances where it is possible to do so. If Bin Laden has resisted the assault and died as a result of a fire fight then most probably, only lethal forces could be used there and then.  One must also keep in mind the principle of military necessity requires that the lethal force used must be of a degree and kind, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the military operation, in this case the submission of Bin Laden, with the minimum expenditure of life and resources.

In conclusion, the military operation conducted by the US was not unlawful in respect of IHL of NIAC since the extrajudicial force used in Pakistan can be justified as self-defence and Bin Laden can be considered as a legitimate military target.


[1] Graduated as a lawyer from the University of Malta in 2010, Dr. Elizabeth Borg continued her studies by pursuing a LLM in International Crime and Justice with UNICRI, a United Nations Institution in Torino. Dr. Elizabeth Borg is currently a Lawyer at the Department of Industrial and Employment Relations and can be reached at dr.elizabethborg@gmail.com or  elizabeth.borg@gov.mt

[2]Orna Ben-Naftali & Keren Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233, 234 (2003).

[3] UN General Assembly Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 28 May 2010

[4] Nils Melzer, Targeted Killing in International law. Oxford University Press, 2008: ‘Deliberate’ meaning that the death of the targeted person is the actual aim of the operation as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims.

[5] Jane Mayer, The Predator War, The New Yorker, 26 Oct. 2009; Greg Miller, C.I.A. Said to Use Outsiders to Put Bombs on Drones, LA Times, 13 Feb. 2009.

[6] Targeted Killing in Dubai: A Mossad Operation Gone Awry?, Der Spiegel, 23 Feb. 2010, http://www.spiegel.de/international/world/0,1518,679764,00.html;

Ilene Prusher, Was Mossad Behind Dubai Assassination? Israel Foreign Minister Isn’t Saying, Christian Science Monitor, 17 Feb. 2010, http://www.csmonitor.com/World/Middle-East/2010/0217/Was-Mossad-behind-Dubai-assassination-Israel-foreign-minister-isn-t-saying

[7] Hereinafter referred to as ‘US’

[8] Legal adviser to the US Department of State

[9] Harold H. Koh’s speech at the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010 (hereinafter ‘Koh’s speech’), www.state.gov/s/l/releases/remarks/139119.htm.

[10] United Nations, Charter of the United Nations, 4 October 1945, 1 UNTS XVI, (hereinafter ‘UN Charter’), Art 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

[11]UN Charter, Art 51 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security […].’

[12] Christian J. Tams, The Use of Force against Terrorists, 20(2) European JIL (2009), 359.

[13] Democratic Republic of the Congo v. Uganda,Judgment of 19 December 2005, ICJ Reports 2005, 168, 223, para.146.

[14] Richard K. Betts, U.S. National Security Strategy: Lenses and Landmarks, November 2004.

[15] Robert Y. Jennings, The Caroline and McLeod Cases, 32(1) American JIL (1939), 82.

[16]Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841, Secretary of State Daniel Webster called upon the British to show that the ‘Necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation […] and that the British force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.’.

[17]Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence: Human Rights versus the State’s Duty to Protect Its Citizens, 15 TempleICLJ (2001), 195.

[18] Noam Lubell, Extraterritorial Use of Force Against Non-State Actors, 2010.

[19] Hereinafter ‘IHL’

[20] The International Criminal Tribunal of the FormerRepublic of Yugoslavia

[21] ICTY Trial Chamber, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, Case No. IT-94-1-AR72, ¶ 70: The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that ‘an 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. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of territorialities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’

[22] Hereinafter ‘NIAC’

[23] Hereinafter ‘IAC’

[24] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 3116-18, 75 U.N.T.S. 31, 32-34 (hereinafter ‘Geneva I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 3320-22, 75 U.N.T.S. 85, 86- 88 (hereinafter ‘Geneva II’); Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3318-20, 75 U.N.T.S. 135, 136- 38 (hereinafter ‘Geneva III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3518-20, 75 U.N.T.S. 287, 288-90 (hereinafter ‘Geneva IV’).

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1, 1125 U.N.T.S. 609, entered into force Dec. 7, 1978 (hereinafter ‘Additional Protocol II’).

[26] Common Article 3, Geneva Conventions, and Additional Protocol II, to which the U.S. is not a party, includes additional requirements, including that the conflict between the armed forces of the state and ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’  (Additional Protocol II).

[27] Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Al-Aulaqi v. Obama, a D.C. district court, in dicta, interpreted Hamdan as holding that the conflict was a non-international armed conflict. See Al-Aulaqi v. Obama, 727 F.Supp.2d at 17 (asserting that Common Article 3, applied by the Supreme Court in Hamdan, would prohibit the government from using lethal

force against al-Aulaqi were he to turn himself in).

[28] In Hamdi v. Rumsfeld, supra note 19, the US Supreme Court responded to the petition by the US government that the conflict with al-Qaeda was not a conflict to which the full protections afforded to detainees under the Geneva Convention by saying that ‘[w]e need not decide on the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3, because, like Article 2, it appears in all four Geneva Conventions […].’5

[29] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. (hereinafter ‘Additional Protocol I’)

[30]The four conditions imposed by the Geneva III are (a) being under responsible command; (b) wearing a fixed distinctive sign; (c) carrying arms openly; and (d) conducting their operations in accordance with the laws and customs of war.

[31] Article 51(3) of Additional Protocol I

[32] Antonio Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law

[33] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Recommendation 1, ICRC, May 2009, (hereinafter ‘ICRC Guidance’). Recommendation 1 states that:  ‘For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participating in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in territorialities.’

[34]With regard to ‘direct causation’, the ICRC Guidance, pg. 52, states that ‘there must be a sufficiently close causal relation between the act and the resulting harm’; the ‘distinction between direct and indirect participation in territorialities must be interpreted as corresponding to that between direct and indirect causation of harm’; and, pg. 53, that ‘direct causation should be understood as meaning that the harm in question must be brought about in one causal step. Therefore, individual conduct that merely builds or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in territorialities‘. Ultimately, ‘only where persons are specifically recruited and trained for the execution of a predetermined territorialities act can such activities be regarded as an integral part of that act, and therefore, as direct participation in hostilities.’

[35] This is consistent with the Expert Opinion produced by Cassese who said (supra note 24): No ‘intermediate status’ exists between that of combatant and the status of civilian. A civilian who takes direct part in territorialities does not forfeit his or her civilian status but may become the lawful object of attack for the duration of his or her participation in combat. The term ‘unlawful combatant’ is a shorthand expression useful for describing those civilians who take up arms without being authorized to do so by international law; it has an exclusively descriptive character. It may not be used as proving or corroborating the existence of a third category of persons: in war time a person is either a combatant or a civilian; tertium non datur.

[36] ICRC Guidance, Part I, Recommendations of the ICRC, Recommendation II states ‘For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore entitled to protection against direct attack unless and for such time as they take a direct part in territorialities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function)’

[37] ICRC Guidance, pg. 33, :Membership for an organized arm group depends on ‘whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict’, and as a result, ‘the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities.’

[38] Hereinafter ‘DPH’

[39] Additional Protocol I, Art 43.1, Combatant privilege, namely the right to directly participate in hostilities with immunity from domestic prosecution for lawful acts of war, is afforded only to members of the armed forces of parties to an international armed conflict (except medical and religious personnel), as well as to participants in a levée en masse. Although all privileged combatants have a right to directly participate in hostilities, they do not necessarily have a function requiring them to do so (e.g. cooks, administrative personnel). Conversely, individuals who assume continuous combat function outside the privileged categories of persons, as well as in non-international armed conflict, are not entitled to combatant privilege under IHL (see also ICRC Guidance Section X).

[40] ICRC Guidance pg. 34

[41] Philip Alston, The CIA and Targeted Killings Beyond Borders Philip, Public Law and Legal Theory Research Paper series , Working Paper No. 11-64 September 2011 pg. 16. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, preamble; Code of Conduct for Law Enforcement Officials, art. 3, GA Res. 34/169, Dec. 17, 1979.

[42] Hereinafter ‘ICCPR’

[43] CCPR/C/21/Rev.1/Add.13, 26/05/2004, General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant State Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.

[44] ICCPR, Art. 2.1 states that: ‘Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’

[45]ICCPR, Art 6.1 states that, ‘every human being has the inherent right to life. […] No one shall be arbitrarily deprived of his life.’ This represents a protection of life against interference by State Organs.’ However, the use of ‘arbitrary’ implies that this protection is not absolute.

[46] Dwyer, Devin, Osama Bin Laden Killing: Pakistan Reacts Cautiously to U.S. Raid on Its Soil. Available at: http://abcnews.go.com/Politics/osama-bin-laden-killed-pakistan-reacts-cautiously-us/story?id=13507918

[47] Customary international law arises out of State practice and in this case it is the US and Israel which mainly engage in targeted killing and they do so amidst widespread criticism. This illustrates that states do not view target killing as a peremptory norm of international law and there is no opinio juris in respect of the execution of targeted killings.

[48] Supra note 6: Koh states ‘Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. […] [T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender.’

[49] Ved. P. Nanda, War on Terror, 2009 37 Denv. J. Int’l L. & Pol’y 513, Nanda has observed that ‘one could justify the targeted strikes by the US in Pakistan on the ground that the geographical region of conflict stretches from Afghanistan to Pakistan, that suspected al-Qaeda and Taliban terrorists and their associates often cross that porous frontier, and that Pakistan has implicitly consented to such attacks.’

[50] Note that the US military team conducting the operation on 1 May 2011-2 May 2011 has reached Pakistan from Afghanistan.

[51] Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A response to four critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities.

[52] ICRC Guidance, Section IX, contains a requirement of necessity, by imposing a restraint on the use of force in direct attack: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind of degree and force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.

Targeted Killing: A View From The “Other(s)” Side

WRITTEN BY: ELIAS OFFOR[1]

Targeted killing has increasingly become the cultivated means of combating terrorism by some countries of the world. These countries cite “self-defence” as one of the major justifications for disregarding the sovereignty of another country in carrying out an act. Regarding the prohibition of targeted killing as a form of interstate force and the exceptions to the prohibition, such self defence should be considered alongside the question whether a particular targeted killing violates the right of another state under Art. 2(4) UN Charter.

The targeting of state leaders is one of the major ways sovereignty of the targeted states is disregarded. While the roles of targeted heads of state in terrorist actions are not always proven, this act has always been criticized but generally has been considered to fall under the rubric of assassination.[2] There are many examples of campaigns from different countries that use targeted killing as a means for achieving reprisal or political aims. Prior to his death, Israel named Yassir Arafat as a legitimate target in their counter terrorism activities in Palestine.

Following the La Belle Disco bombing in Germany, United States conducted a targeted killing operation as an act of reprisal and bombed the house of Muhammar Khadafi, the former Libyan President. The incident recorded untold casualty figures including the death of an 18-month old Khadafi’s adopted baby. While the allegation provoking such targeted killing operations are sometimes unfounded, the point remains that the sovereignty of the targeted countries’ heads of state are disregarded. Under the customary international law, the case of Caroline is in the center point of anticipatory self defence as a justification for the use of force,[3] and then follows the International Court of Justice interpretation of Article 51 of the UN Charter in the case of Nicaragua. In Caroline the facts occurred during the Canadian Rebellion of 1837. Despite the efforts of the United States to prevent any sort of assistance to them, the rebels established a force at Navy Island on Canadian waters from which they raided Canadian shores and attacked passing British ships. The Caroline, an American ship supplied the force from American shore. At night, the British seized the Caroline from the American port of Schlosser, fired at her and sent her over Niagara Falls. Two US nationals were killed.[4]

In the controversy that ensued, McLeod, a British national was arrested over the attack and there arose a long correspondence between the then US Secretary of State, Daniel Webster and the British Prime Minister in Washington, Henry Fox on the legality of the attack. Fox stated that Britain was justified to attack on the grounds of self-preservation and self defence. Webster countered with territorial integrity because the Caroline was attacked in American territorial waters. In the raging controversy, Webster in a letter to Fox specified the basic principles of self defence which, hitherto has been known and referred to as the Caroline Doctrine. The content of the letter:

“It will be for …[Her Majesty’s] Government to show a necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it, it must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown, that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her … A necessity for all this, the Government of the United States cannot believe to have existed.”[5]

The much cited Caroline Case which forms the basis of present day targeted killing policies renders the territorial sovereignty of targeted countries irrelevant and therefore has often been misapplied. In the context of Webster’s writing, “…the necessity, present and inevitable…” portrays an emergency situation which leaves no room for an alternative. The letter seems to be very clear as to the parameters.  It is quite surprising that the clause has always been singled out and given a bogus interpretation to suit a particular targeted killing policy, and an excuse against the respect for the sovereign territory of the “targeted state.”

Webster’s writing after the incident, a priori, was not a justification of what occurred; rather it was a statement as a result of the incident. This is against the background of numerous references which do not always allude to the context and manner in which Webster wrote. For instance, the Encyclopedic Dictionary of International Law states:

“(1) Under Customary International Law, it is generally understood that the correspondence between the USA and UK of 24 April 1841, arising out of The Caroline Incident… expresses the rules on self-defense.” [6]

It should be restated that the said correspondence was a condemnation rather than a justification of the incident.[7]

However, after the Caroline case, the circumstances under which the use of force in international law can be justified changed drastically. Prior to this period, recourse to war was considered open to all, against all, and for any reason.[8] Sovereignty was the focal point of discussion which made it absolutely unnecessary to justify the use of force by a state on its own territory against invading forces of another state.[9] It would be out of place to contend that the principles enunciated in Caroline envisaged the indiscriminate way anticipatory self defence is presently being invoked to justify targeted killing and put highest disregard to territorial sovereignty of the “targeted states.”

It is a misapplication of this doctrine, the widespread application to cases of self defence outside the territory of the country acting in anticipatory self defence. Under Article 51, an attack must be underway or must have already occurred in order to trigger the right of unilateral self-defense. Any earlier response must be approved by the Security Council according to Article 51. It could be seen from this that there is no unilateral right to attack another state because of fear that the state is making plans or developing weapons usable in a speculative campaign.[10]

Pakistan: The Killing of Osama Bin Laden

Osama Bin Laden (hereinafter, OBL), the acclaimed leader of Al-Qaida has been the focal point of America’s fight against terrorism since the 9/11 incident which is alleged to have been masterminded by him and his group. Several measures had been taken up by America for the capture of OBL without result, until the recent exploit by the Navy SEALS which snuffed the life out of him at his home in Pakistan. America justified their act and argued that Pakistan compromised their sovereignty by consenting to the attack and that there were lapses in their collaborative efforts to ensure the capture of the terrorist leader.

It is debatable whether the alleged previous tactical lapse by Pakistan in denying safe haven to OBL and a subsequent inability or lack of will to apprehend him as reported unofficially in some media would justify a preemptive act of self defence by America with disregard of Pakistani sovereignty. Resolution 1373 of the Security Council passed just after the 9/11 incident in line with other global terrorism instruments urges states’ cooperation in the fight against terrorism; in a way that global battlefield against terror was almost ordered. Pakistan was obligated under these instruments to deny any form of safe havens to OBL and his group. Various media reports show that America’s previous efforts to capture OBL had been botched by Pakistani authority’s laxity in this regard. But, since Pakistan has not reasonably acted in a way to beat OBL and his group, it meant that it apparently had “joined them.” President Obama’s chief counterterrorism advisor, John Brennan, told reporters it was “inconceivable that Osama bin Laden did not have a support system” in Pakistan.[11]

It is obvious to me that America had a deliberate intention to violate the territorial sovereignty of Pakistan in the attack. In order to be more tactical, the Navy SEAL had to infiltrate Pakistan undetected. According to a statement by Pakistan Air Force Chief Marshall Rao Qamar Suleman, there had been an air-surveillance failure. Qamar covered the inquiry by saying that the air space was unable to detect the American helicopters because the radar installed on the western borders were inactive on the day of the incident. The U.S. helicopters also reportedly used radar-evading measures, such as stealth technology, to avoid detection. It was obvious that the Pakistani authority or relevant agencies thereof were not aware of the attack and, according to America, since Pakistan had considerably harboured OBL, America’s attack contemplated any hindrance that would be posed by them.

The right of a State to use force in response to an armed attack by terrorists will depend on the degree of responsibility of the harbouring state for the attack, and possibly on its willingness or capability of acting to apprehend the terrorists and prevent them from carrying out further attacks. It has to be again, emphasized that when the host state is not directly sponsoring a terrorist group in its territory, or is unable or incapable of preventing their activities, the right of self defence of the victim state under Article 51 UN Charter does not reasonably crystallize, the right to sovereignty of the host state remaining intact. In its Advisory Opinion on the Legal Consequences of the Wall, the ICJ opined that only an attack by a state can constitute the type of armed attack contemplated by Article 51 of the UN Charter.[12] Though, numerous scholars have different views,[13] and three of the judges on the Court disassociated themselves from the Court’s opinion on this issue,[14] the basis of this judgment is quite telling; holding otherwise would engender a system where countries will be incessantly invaded in any specter of threat by a perceived enemy or terrorist group. Of great importance is the fact that numerous criminal groups come under the guise of known terrorist groups to perpetrate heinous acts in order to go undetected. The alleged unwillingness by the Pakistani authorities has not been substantiated over the years in the way that the Security Council would urge other states through the General Assembly to employ different measures towards compelling the Pakistani authority for better cooperation.[15]

However, Security Council Resolutions adopted on 12 and 28 September, 2001 were carefully worded to affirm, within the context of a broader response to terrorism, the right of self defence in customary international law. A passage in Namibia Advisory Opinion states that the language of the Security Council Resolution should be carefully analysed having regards to the terms of the resolution to be interpreted, the discussions leading to it, the charter provisions invoked, and in general, all circumstances that might assist in determining the legal consequences.[16] Taking this guide into consideration, it is obvious that the context of Resolution 1373[17] and the kind of steps identified, suggests an interpretation that does not contemplate a chapter VII kind of authorization for the use of force.[18] The diplomats who drafted this resolution later admitted that they did not take into consideration possible consequences of the resolution.[19] In my view, in the wake of the 9/11 incident and in disregard of some due procedural niceties involved in seeking the permission of Security Council in invoking the right to self defence under Article 51 of the Charter and getting the cooperation of the state habouring a suspected terrorist which involves the submission of culpability evidence to such state, the drafters of Resolution 1373 became so liberal in their draftsmanship with utter disregard of the right of sovereignty of states.

The conclusion drawn on February 2001 that there was a “sound intelligent basis” for pursuing Bin Laden and the March and April (2011) National Security Council meetings in America “to develop courses of action to bring justice to Osama Bin Laden” were somehow erroneous. The public opinion encapsulated in several media reports showed that Bin Laden masterminded the 9/11 incident. Also, other pieces of evidence abound in terms of his video broadcast across the world where he admitted such acts. First, in order to show transparency in the war against Bin Laden, there ought to have been other independent corroborative evidence in the form of a report from an independent body not based in the USA but representing a global interest. Second, such corroborative report would have been made known to the Security Council under Article 51 UN Charter obligations and then to Pakistan in respect of her sovereignty and invariably beefing up better collaborative measures. Furthermore, the fundamental basis of self defence is that the victim state will be authorized to act against terrorists who present a real threat prior to the threat materializing, based on sound, reliable and corroborated intelligence information or sufficient substantial evidence rather than reacting to an attack that already occurred.[20]

It was equally reported that US briefed Pakistan and other world leaders after the raid. It is yet to be known whether such briefing was in compliance with respect to Pakistani sovereignty under Article 2(4) of the UN Charter. It is equally to be known whether the alleged agreement between George W. Bush and then-Pakistani leader Pervez Musharraf nearly a decade prior to the raid, and renewed during the civilian government elections of 2008, authorising a unilateral raid with little or no notice should OBL be located on Pakistani soil[21] ultimately compromised the territorial sovereignty of Pakistan. Also the issue of Pakistan waiving their sovereignty initially by applauding the attack, and later accused the USA on the basis that such act forming a precedent should be avoided has remained controversial.

Following Israel’s capture of Adolf Eichmann, the Nazi war criminal, in Argentina and after unsuccessful secret negotiations with Israel, Argentina requested an urgent meeting of the United Nations Security Council, to protest what Argentina regarded as the “violation of the sovereign rights of the Argentine Republic.”[22] In the ensuing debate, Israeli representative Golda Meir claimed that the abductors were not Israeli agents but private individuals, so that the incident was only an “isolated violation of Argentine law.”[23] Eventually the Council passed Resolution 138, which requested Israel “to make appropriate reparation”, while stating that “Eichmann should be brought to appropriate justice for the crimes of which he is accused” and that “this resolution should in no way be interpreted as condoning the odious crimes of which Eichmann is accused.”[24] After further negotiations, Israel and Argentina agreed to end their dispute with a joint statement that “the Governments of Israel and the Republic of Argentina, imbued with the wish to give effect to the resolution of the Security Council of June 23, 1960, in which the hope was expressed that the traditionally friendly relations between the two countries will be advanced, have decided to regard as closed the incident that arose out of the action taken by Israel nationals which infringed fundamental rights of the State of Argentina.”[25] In the subsequent trial and appeal, the Israeli courts avoided the issue of the legality of Eichmann’s capture, relying instead on legal precedents that the circumstances of his capture had no bearing on the legality of his trial. The Israeli Court also determined that because “Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.”[26]

The raid in Pakistan by the US Navy SEAL that killed OBL under the command of President Obama, which he initially revealed in his presidential campaign in 2008, obviously violated Pakistani sovereignty. In the case of Eichmann, Resolution 138 mandated Israel to pay reparation for the said violation; whether this should have applied in the case of Pakistan is a question no one has raised. Targeted killing policies, if not curtailed under a definite legal framework could breed catastrophe of unimaginable dimension as states hide under its cloak to violate the sovereignty of other states in attempt to crush perceived enemies. The world through the United Nations should rise up against this misuse of force in violation of the sovereignty of states.


[1] Elias Offor obtained his  Master’s Degree International Crime and Justice from University of Torino and UNICRI.

[2] Thomas Hunter, Targeted Killing: Self Defence, Preemption and the War on Terrorism 11 (2009).

[3] Timothy Kearly, Raising the Caroline, 17 Wis.Int’L.J. 325, 325 (1999).

[4] The Facts of the case are taken from: D.J. Harris, Cases and Materials on International Law, 894 (5th ed., 1998).

[5] Extracts from Mr. Webster’s letter of April 24, 1841, taken from D.J. Harris supra, note 87 at. 895.

[6] Clive Parry et. al. eds., Encyclopedic Dictionary of International Law 361 (1988).

[7] Timothy Kearly, supra note 86 at 332.

[8] Yoram Dinstein, War Aggression and Self-Defense 176 (3rd ed. 2001).

[9] See id.

[10] Mary Ellen O’Connell, The Myth of Preemptive Self-Defense, Paper for the American Society of International Law, August 2002 at 5.

[11] Brennan, Osama Bin Laden Killed in U.S. Raid, Buried at Sea, Washington Post, May 2, 2011.

[12] ICJ, Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, 43 ILM (2004) 1009, at para. 139.

[13] Y. Dinstein, War, Aggression and Self-Defence 214 (3rd ed, 2001).

[14] See Separate Opinion of Judge Higgins, at paras. 33–34; Separate Opinion of Judge Kooijmans, at paras. 35–36; Declaration of Judge Buergenthal, at paras. 5–6.

[15] Karin Brulliard & Karen DeYoung, U.S.-Pakistan Cooperation Has Led to Capture of Afghan Taliban Insurgents, Washington Post February 19, 2010.

[16] Namibia Advisory Opinion (1971) ICJ Reports 15.

[17] UN DOC SC/7158 http:www.un.org/documents/scres.htm.

[18] Michael Byers: Terrorism, the Use of Force and International Law after 11 September, (2006).

[19] See Financial Times (US Edition) 4th October, 2001.

[20] Amos Guiora, Targeted killing as active self defence, 36 Case W. Res. J. Int’l L. 319, 14 (2004).

[21] Walsh, Declan, Osama Bin Laden Mission Agreed in Secret 10 Years Ago by US and Pakistan, The Guardian (London) May 9, 2001.

[22] M. Lippmann, The trial of Adolf Eichmann and the Protection of Universal Human Rights Under International Law, Houston Journal of International Law, 1-34 (1982).

[23] Security Council resolution 138, June 23, 1960 (Symbol S/4349) Un.org. Retrieved 2012-05-14.

[24] L. C. Green, Legal Issues of the Eichmann trial, Tulane Law Review 641, 634- 683 (1962–3).

[26] Eichmann trial: Opening speech of Attorney General Gideon Hausner at Youtube.com.

The ICC: Protection for the Rohingya?

Written by: Regina Paulose

In November 2012, the Office of the Prosecutor (OTP) of the ICC released its Report on Preliminary Examination Activities 2012, which examines situations in various countries for acts which could potentially amount to crimes against humanity and/or war crimes. Some of the countries mentioned in this report are North Korea, Columbia, and Afghanistan.[1] While one could question some of the cases the OTP is currently investigating,[2] this author takes the position that there are other atrocious human rights situations which need the immediate attention of the ICC.  In particular, the OTP should begin to make efforts to investigate and address the continued persecution and abuse of the Rohingya population in Burma.[3]

The Status Quo Conflict and Response

According to some scholars, the Rohingya’s origins are not entirely clear.[4] Setting aside this debate, the Rohingya mainly reside in Burma on the western side. The Rohingya are a Muslim minority in Burma where the majority of the population is Buddhist. It is estimated that there are currently 800,000 to 1 million Rohingya living in Burma. Since the 1970’s the regime in Burma has been trying to drive out or restrict the Rohingya.[5] This sentiment was put into law in 1982 when it created a Citizenship Law, which mandates that a person must prove their Burmese ancestry dating back to 1823 in order to have freedom of movement and access to other basic rights such as education in the country.[6] (Recall: Armenian Genocide and Nazi Germany). This law is one of the prime reasons why the Rohingya have become “stateless.”

The Rohingya have been the target of violence and recent clashes, which has left “dozens dead and tens of thousands internally displaced.”[7] One does not have to look further than the last 8 months to truly see how the regime continues to treat the Rohingya. In June 2012, an outbreak in communal violence between the Buddhist and Muslim Rakhine and the Rohingya lead to massive sweeps resulting in detention of Rohingya men and boys. (Recall the massacre at Srebrenica). Reports indicated that these groups were subject to ill treatment and were held “incommunicado.”[8] In October 2012, satellite images showed that homes of the Rohingya were being destroyed by security forces. The security forces then overwhelmed and cornered the Rohingya to drive them out of the area. This destruction is on top of the gruesome reports of beheading and killing of women and children.[9] (Recall: Rwanda).  The violence has continued in spurts, but is clearly directed at the Rohingya and motivated purely by hatred.

Faced with no other alternatives and with no access to justice in their country, the Rohingya have begun to flee only to be met with rejection from other countries. On the first day of 2013, some members of the Rohingya group were intercepted by Thai authorities and were deported back to Burma.[10] The Thai Navy is under orders to send them away from Thailand. Bangladesh has also expressed that it is not willing to accept Rohingya into their country.

Some countries however are reaching out to the Rohingya. For instance, Malaysia does accept the Rohingya as refugees. Iran recently sent humanitarian aid in order to help and has called upon the UN to take action.[11] Regionally, ASEAN offered to conduct “talks” but that was “rejected.” The regime explained that it sees the escalating violence as an “internal problem.”[12]

After a close examination of these events, the U.S. Presidential visit in November 2012, made the waters murky. President Obama felt that Burma was “moving in a better direction” and that there were “flickers of progress.” During the visit the President met with an advocate of the Rohingya population. While President Obama stated that his visit was not an endorsement of the current government, simple questions arise as to what the U.S. would be willing to do (or not do) to prevent this sectarian violence from escalating.[13] Not surprisingly, after the visit, Thein Sein made 2013 human rights news, when his regime admitted to using air raids against the Kachin rebels who are battling the government for control over certain territories.[14]

Rohingya Refugees

The ICC and its potential involvement

There are two interesting points of discussion that this scenario creates. The first is how the Office of The Prosecutor (OTP) would be able to meet jurisdictional requirements if it were to seriously consider prosecution. The controversial propio motu powers of the Prosecutor would allow her to investigate this situation. Articles 13, 15, and 53 of the Rome Statute require temporal jurisdiction, territorial or personal jurisdiction, and material jurisdiction. In addition, there are requirements in the Statute concerning admissibility. Burma is not a state party to the Rome Statute. The real challenge with this case would be with meeting the territorial or personal jurisdiction elements. Of course the easiest way to meet this requirement would be if the UN Security Council (UNSC) would be willing to refer the case as it did with Bashir of  Sudan.  As stated above, the U.S. Presidential visit does not make clear at this time what the U.S. position would be, especially considering the U.S. also eased sanctions, perhaps as a symbol of new relations, on the regime in November.

Another interesting point of discussion also concerns the potential charges. This author believes that this is a strong case for various charges under crimes against humanity against the Government. Another added dimension to this is that there are also civilians who target the Rohingya and seek to remove them from Burma. Since the posting of this article in January, there has been a recent increase in violence between Buddhist monks, civilians, and the Rohingya.  As previously noted, the regime has continuously called the situation with the Rohingya an “internal problem.”  The situation with the Rohingya can be distinguished from the conflict with the Kachin rebel/soldiers who are fighting for territory and independence.

Some other kind of action is now necessary besides dialogue and commentary from high level UN officials. Our cries of “never again” have become hollow.  The purpose of the ICC should be to facilitate deterrence in addition to punish perpetrators of grave crimes. The international community waits for these situations to become so grave that every action becomes too late. We cannot say we are students of history, when we continually are faced with the same situations over again and repeat the same mistakes. Our ability to ignore tragedy has come at the expense of hundreds of thousands of lives.

Interested in reading more or the full length analysis? Check out: A Road Well Traveled: Religion, Just War, and the Rome Statute, 2(2) A38JIL (2013) 178.

http://www.athirtyeight.com/2013/06/volume-2-issue-2.html


[1] A copy of this report can be found at ICC Coalition website which keeps an excellent record of documents pertaining to the ICC and the OTP: http://www.iccnow.org/?mod=browserdoc&type=14&year=2012

[2] This author questions some of the potential charging decisions being made by the ICC – for instance – the case involving North Korea and South Korea, is a clear act of aggression, but is under examination as a war crime. The death toll in this case is 22 people. The OTP is spending resources in Colombia, to assess whether the government is prosecuting the FARC properly. The author concurs that these cases are worthy of ICC attention, but questions why the ICC wont deal with situations that are ongoing which need immediate intervention. (Besides financial reasons).

[3] The great name debate: the U.S. recognizes the official name of the country as Burma.  Myanmar is the name was introduced by the former military regime, 23 years ago, and is preferred by the current regime. President Obama reportedly did refer to the country as Myanmar out of diplomatic courtesy when meeting with Thein Sein, President  in November 2012. See http://www.cnn.com/2012/11/19/politics/obama-asia-trip/index.html

[4] For a comprehensive report on the Rohingya situation, see Human Rights Watch, “The Government Could Have Stopped This” a report released July 31, 2012 and available at http://www.hrw.org/reports/2012/07/31/government-could-have-stopped . Khaled Ahmed, “Who are the Rohingya?” The Express Tribune, July 31, 2012, available at: http://tribune.com.pk/story/415447/who-are-the-rohingya/

[5] Gianluca Mezzofiore, “Myanmar Rohingya Muslims: The Hidden Genocide” August 22, 2012, available at: http://www.ibtimes.co.uk/articles/376189/20120822/burma-myanmar-rohingya-muslims-ethnic-cleansing.htm

[7] UN News Centre, “Independent UN expert calls on Myanmar to carry out latest human rights pledges.” November 20, 2012, available at: http://www.un.org/apps/news/story.asp?NewsID=43550

[8] Amnesty International, “Myanmar: Abuses against Rohingya erode human rights progress.” July 19, 2012, available at: http://www.amnesty.org/en/news/myanmar-rohingya-abuses-show-human-rights-progress-backtracking-2012-07-19

[9] Human Rights Watch, “Burma: Satellite Images Show Widespread Attacks on Rohingya” November 17, 2012 available at: http://www.hrw.org/news/2012/11/17/burma-satellite-images-show-widespread-attacks-rohingya

[10] Human Rights Watch, “Thailand: Don’t Deport Rohingya ‘Boat People’” January 2, 2013, available at: http://www.hrw.org/node/112247

[11] Ahlul Bayt News Agency, “Iran to Send 30 tons of Humanitarian Aid to Myanmar’s Rohingyas” January 5, 2013, available at: http://abna.ir/data.asp?lang=3&Id=378800

[12] ALJAZEERA, “Myanmar rejects talks on ethnic violence” October 31, 2012, available at: http://www.aljazeera.com/news/asia-pacific/2012/10/2012103161130375846.html

[13] Although I thoroughly question the impact of sanctions and their utility, some sanctions were eased on Burma in the days leading up to the Presidential visit.

[14] See Thomas Fuller, “Myanmar Military Admits to Airstrikes on Kachin Rebels” New York Times, January 2, 2013, available at: http://www.nytimes.com/2013/01/03/world/asia/myanmar-military-admits-air-raids-on-kachin-rebels.html?smid=tw-nytimesworld&seid=auto&_r=1&. See also Associated Press, “Myanmar’s Kachin rebels accuse government of artillery attack on headquarter city” January 6, 2013, available at: http://www.washingtonpost.com/world/asia_pacific/apnewsbreak-myanmars-kachin-rebels-accuse-government-of-artillery-attack-on-headquarter-city/2013/01/06/dc668006-57fa-11e2-b8b2-0d18a64c8dfa_story.htm

Ahoy Captain! Universal means UNIVERSAL!

By Ronald Rogo  rogo.ronald@gmail.com

 

                                                               “The code is the law!”

                                            Captain Teague in Pirates of the Caribbean

The fight against piracy has gained urgency in recent times, especially off the coast of the Somalia waters. Perhaps the most troubled waters in the world, the increased incidents of piracy have not only caused unnecessary deaths but increased the costs of doing business[1].  The international community has therefore been forced to seek for solutions to this vice. The United Nations Security Council, for example, has passed several resolutions on combating piracy off the coast of Somalia[2], most of which give authority to the member states to enter and use force, even within the territorial waters of Somalia, in order to combat piracy. This, in essence, was an echo of the principle of universal jurisdiction which was first enunciated in relation to acts of piracy. The principle of universal jurisdiction, essentially states that any country has the jurisdiction to try certain crimes, irrespective of the fact that there is no clear nexus between the criminal activities and the trial state[3]. The universal jurisdiction of states in relation to acts of piracy is also recognized under the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS). Article 105 gives any signatory state the power to “seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board” whenever a vessel is on the high seas[4]. The rationale is that since the high seas are essentially “no man’s land” criminal activities that occur here should not go unpunished due to the lack of territorial or national jurisdiction by any state.

The issue of the universal jurisdiction of states was expounded in the Kenyan case of Republic V Chief Magistrates Court, Mombasa Ex-Parte Mohamud Mohamed Hashi & 8 Others[5]. In this case the applicants were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help a U.S. helicopter assigned to the USS – Monterey. They were then taken to Mombasa Kenya and placed in the custody of the Kenyan police. They were later charged with the offence of piracy jure gentium for attacking  the sailing vessel named MV Courier while armed with three AK 47 Rifles, one pistol Tokalev, one RPG-7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle and putting the lives of the crew in fear. The accused persons filed a judicial review application in the High Court of Kenya challenging their charges on the basis that the alleged offense took place in the high seas of the Gulf of Eden. The Kenyan courts, they argued, did not therefore have the jurisdiction to try them since “the offence alleged was committed outside the territorial jurisdiction of Kenya and outside the Kenyan waters…neither a Kenyan citizen or Kenya property was involved…the arrest was made by the German Navy taking part in operations in the Gulf of Aden”. The High Court accepted this argument holding inter alia, that “The High Seas are not and cannot be a place in Kenya or within the territorial waters of Kenya. In fact by definition they are strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction whether Municipal Law or an International Convention etc”. The High court further held that the trial court “had no jurisdiction over the matter when the charges were preferred, and when the proceedings took place. The said court acted without jurisdiction when they took the pleas of the Applicants and heard the case up to the close of the prosecution case. The whole process was therefore null and void, ab initio. A nullity from the word go”[6]. However, the High Court of Kenya ignored the provisions of UNCLOS providing for universal jurisdiction[7]. This decision was later overturned by the Court of Appeal. The Court of Appeal held that the High Court failed “to appreciate the applicability of the doctrine of universal jurisdiction in reference to the case at hand”[8].

That said, it is important to note that Article 105 of UNCLOS provides that “the courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith” (emphasis mine). In other words the State that seizes any vessel on the high seas ought to be the one that actually tries the suspected pirates[9]. This rule has largely been ignored in current practice where states in the developed world only arrest the pirates and “dump” them in countries in the developing world[10]. A few examples should suffice to illustrate the point. On February 19, 2012, four suspected Somali pirates, captured by the Danish naval troops, were taken to Kenya after being rejected by the government in Seychelles.  In March 2009, seven suspected pirates were arrested in the Gulf of Aden by the US Navy after a tanker, Polaris, sent a distress call that they were being attacked[11]. Eugene Kotnorovich estimates that “universal jurisdiction was used in prosecuting only 0.53% of clearly universally punishable piracy cases between 1998 and 2007, with the figure increasing to 2.5% between 2008 and June 2009, and reporting that Kenya accounts for all but three cases of invoking universal jurisdiction over piracy in the past 12 years, with responsibility for 79% of cases[12] (emphasis mine).

The reasons for this misnomer are varied. However, the most common issue is the question of what to do with the pirates if they are acquitted or once they have served their sentence. Since the principle of non refoulement applies universally as a peremptory norm of international law, the states where the trials are held will be “stuck” with the pirates either on acquittal or upon serving sentence as they often cannot return them to Somalia and the trial state will be obliged to offer them asylum[13].William Langeweshice, quotes an Indian official, for example of stating: “What would happen if India convicted and imprisoned them, but after their release Indonesia refused to recognize or accept them? . . . They would become stateless people . . . Then the problem for India would be where to send them”[14]. But this problem creates greater burdens to poorer countries like Kenya and Seychelles which have an additional cost to the trial process. An already overwhelmed police and prison system is further stretched without significant financial assistance from the international community[15]. I therefore hold the view that the current practice is not sustainable. The country that arrests the suspected pirates ought to be the one that prosecutes. After all, universal jurisdiction means just that…universal!


[1] For more analysis of effects of piracy off the coastal shelf refer to previous posts on this blog on the subject.

[2] United nations Security Council Resolutions No. 1816, 1838, 1846 and 1851 of 2008, 1897 of 2009, 1918 and 1950 of 2010, 1976, 2015 and 2020 of 2011.

[3] The common nexus in relation to criminal jurisdiction relates to criminal activities that occur within the territory of a given state. However, some states also have jurisdiction over some criminal activities committed by their nationals overseas and criminal activities overseas where their nationals are victims.

[4] In Article 86 of UNCLOS, the high seas is taken to mean “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”

[6] Ibid

[8] The full decision of the Court of Appeal can be accessed online at http://piracylaw.files.wordpress.com/2012/10/kenya-hashi-appeal-opinion.pdf. The same position was held in the case of Hassan M. Ahmed V Republic [2009] eKLR. It can be accessed online at http://kenyalaw.org/CaseSearch/view_preview1.php?link=66028601162227766885163

[9] Admittedly, the provision is a drafted in permissive rather than in a rigid way. However, it is my view that it represents the rule-of-the-thumb arrangement, only to be departed from in exceptional cases.

[10] For analysis of the number of piracy related trials held by various countries go to http://www.cbrne-terrorism-newsletter.com/resources/2011%20-%20Prosecuting%20Pirates_Challenges%20for%20the%20Prisons.pdf

[12] Eugene Kontorovich & Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy (Northwestern Public Law Research Paper No. 09-26, 2010); 104 AM. J. INT‘L. L. 8-9 (forthcoming 2010), available at http://ssrn.com/abstract=1519518

[13] The principle of non refoulment is also expounded in CAT Article 3(1), ICCPR Article 7, and ECHR Article 3, which all protect individuals from being returned to a country where they are at risk of torture, inhuman or degrading treatment, or punishment.

[14] William Langewiesche, The Outlaw Sea: Chaos And Crime On The World‘S Oceans 75 (2004)