Dr Aurel Sari
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2017 December

Is it lawful to destroy the enemy?

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“A dead terrorist can’t cause any harm to Britain,” said the Secretary of State for Defence Gavin Williamson in a Daily Mail interview in December 2017. “I do not believe that any terrorist, whether they come from this country or any other, should ever be allowed back into this country,” he continued. “We should do everything we can do to destroy and eliminate that threat.” Mr Williamson’s comments sparked widespread consternation in the UK press, having been condemned as contrary to international law. In this post, published on Lawfire, Michael Schmitt and I examine whether this really is the case.

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2017 October

Was the drone strike on IS recruiter Sally Jones lawful?

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Sally Jones, a British member of Islamic State (IS), was reportedly killed by a US drone strike in June 2017 inside Syria. Her 12-year-old son, JoJo, is believed to have been killed alongside her. In news reports about the strike, which has come to light only recently, there has been confusion about the legal framework governing the operation. An article in the Guardian assessed its legality in light of the rules governing the use of force, which determine under what circumstances states may use force in international relations. However, whether or not Jones and her son were lawful targets depends on an entirely different body of law, known as the law of armed conflict – or international humanitarian law – which regulates the conduct of hostilities once an armed conflict has come into existence. In this post, I briefly consider what the law of armed conflict has to say about the strike.

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2016 December

Writing on the Wall: The Format of the Article 50 Notification

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Does a notice to withdraw from the EU pursuant to Article 50 TEU have to be in written form? The Treaty of Lisbon has left this question open. In its second paragraph, Article 50 TEU declares that a ‘Member State which decides to withdraw shall notify the European Council of its intention.’ Nothing in this passage dictates that the notice has to be made in writing, yet nothing indicates that it may not be made in writing either. However, three points should be borne in mind in this context.

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2016 October

Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU

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‘There is no going back.’ These were the words of Lord Pannick, uttered before the High Court in response to the question whether the United Kingdom could rescind its notification to withdraw from the European Union once issued under Article 50 TEU (Santos and M v Secretary of State for Exiting The European Union, uncorrected transcripts, p. 17). The claimants and the Government appear to agree on this point and accept that the UK cannot reverse its notification of withdrawal. This post explains why this position does not reflect the law.

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2016 September

EJIL:Talk post on Reprieve, ‘Kill Lists’ and Human Rights Advocacy

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Earlier this year, human rights charity Reprieve published a report entitled ‘Britain’s Kill List. In its report, Reprieve claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project. In particular, Reprieve alleges that the British Government has been complicit in preparing and executing a ‘kill list’ for

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2015 December

Lawfare post on ‘Targeting ISIL Oil Transport Trucks’

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In this comment, I offer some thoughts in response to Butch Bracknell’s recent post on the targeting of ISIL oil transport trucks by the US in eastern Syria. As has been reported in the New York Times, the aircraft carrying out these strikes have issued advance warnings to persuade the drivers to abandon their vehicles before the attacks commenced. Bracknell accepts that a number of policy reasons militate in favour of issuing advance warnings in the present case. However, he suggests that such warnings were not in fact required by the law of armed conflict.It is useful to revisit this assessment, partly because the legal and policy consideration seem to be more closely aligned than Bracknell’s conclusion suggests and partly because the case brings to light some interesting aspects of legal inter-operability.

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2015 October

Lawfare post on ‘Legal Aspects of Hybrid Warfare’

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I recently had the pleasure and privilege of convening a workshop on the legal aspects of hybrid warfare and influence operations at the Strategy and Security Institute of the University of Exeter in the United Kingdom. Held in collaboration with the NATO Office of Legal Affairs (many thanks to NATO Legal Adviser Steven Hill) and the Allied Rapid Reaction Corps, the event brought together senior legal advisors and experts working in a national and international capacity over the course of one and a half days. The workshop was held under the Chatham House Rule. While this prevents me from describing the proceedings and participants in greater detail, I have written up my thoughts on the subject, shaped in part by the discussions we had at Exeter, in a blog post published at Lawfare.

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2015 August

The Authority to Detain in NIACs Revisited: Serdar Mohammed in the Court of Appeal

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As the English Court of Appeal breaks for the summer vacation, scores of international lawyers are about to descend on one of its latest decisions: Mohammed v Secretary of State for Defence; Rahmatullah and Ors v MoD and FCO [2015] EWCA Civ 843. In this 109-page long judgment, the Court upholds the conclusion reached at first instance by Leggatt J that British armed forces participating in ISAF lacked the legal authority under international law to detain suspected insurgents captured in Afghanistan.The implications of Serdar Mohammed are considerable. The case raises difficult questions about the place the European Convention on Human Rights (ECHR) occupies in the international legal order and, more broadly, about the relationship between international human rights law and international humanitarian law (IHL). Those who have followed this debate will recall that we were not convinced by Leggatt J’s reasoning on these points (see here, here and here). In so far as it upholds his main conclusions, we also find ourselves in disagreement with the judgment now delivered by the Court of Appeal. Rather than rehearsing our arguments on the underlying issues in full (see in detail here), in this post we would like to briefly comment on those aspects of the Court’s decision which, in our view, take the debate forward and those which do not.

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2015 April

Barking up the Wrong Tree: How Not to Save the British Armed Forces from Legal Defeat

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Judicial imperialism is defeating the British armed forces. At least this is what the authors of a report recently published by the Policy Exchange, an influential British think tank, claim. There is little doubt that the British armed forces are facing significant legal challenges. These must be addressed as a matter of priority. However, neither the fiery tone of the Policy Exchange's latest report nor its actual policy recommendations are best suited to preserve the operational freedom of the military. In this post, we seek to explain why this is so.

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