Online posts

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

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.

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

‘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.

The UK’s New Derogation Policy for Armed Conflicts: Making a Success of the ECHR?

Speaking at the annual conference of the Conservative Party on October 4, U.K. Defence Secretary Michael Fallon sought to reassure Britain’s nervous allies and the general public about the implications of Brexit. Leaving the European Union, he said, “does not mean we are stepping back from our commitment to the security of our continent.” The Government is investing in new aircraft carriers, maritime patrol aircraft, attack helicopters and armoured vehicles to ensure that Britain is “ready to defend freedom and the rule of law to advance democracy and protect human rights.” But new equipment is not enough. As the Defence Secretary explained, the Government will also take action to protect the British armed forces from vexatious human rights claims. This new derogation policy should not come as a surprise. In its election manifesto of 2015, the Conservative Party had promised to ensure that the armed forces are not subject to “persistent human rights claims” when acting overseas (Conservative Manifesto, p. 77). Nevertheless, Michael Fallon’s announcement marks a dramatic shift in government policy. This post examines that shift and its implications. It suggests that the potential costs of the Government’s new derogation policy could be considerable and its benefits remain uncertain. Read the full post here

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

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 years, that such a ‘kill list’ is incompatible with the rule of law and that the Prime Minister has deceived the public about Britain’s involvement in this ‘disturbing’ practice. These are serious allegations. All the more so, since on closer inspection they reveal an astonishing appetite for sensationalism and disregard for accuracy. Read the full post here

Lawfare post on ‘Targeting ISIL Oil Transport Trucks’

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.

Lawfare post on ‘Legal Aspects of Hybrid Warfare’

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.

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

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.

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

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.

The Fable of the Law of the Flag

For a couple of years, I have contributed to the NATO Legal Advisors Course at NATO School Oberammergau. In the past, I spoke about the European Union's practice in the field of status of forces agreements and the application of the rules of international responsibility to NATO. This year, my brief was to place the NATO Status of Forces Agreement of 1951 into its broader context by providing an overview of the legal framework governing the status of foreign armed forces in international law. In doing so, my aim was to dispell two persisent myths: first, that the so-called 'law of the flag' principle represents the traditional position of international law in this area and, second, that in the absence of status of forces agreements, soldiers enjoy the same legal position as tourists. In this post, I briefly explain why both of these assumptions are wrong.

Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations

Jaloud v Netherlands is the latest in a growing line of Strasbourg cases addressing the application of the Convention to extra-territorial military operations. In this post, I discuss the jurisdictional aspects of the case. Two points merit attention: the Court’s reasons for finding that the jurisdiction of the Netherlands was not excluded and the new category of extra-territorial jurisdiction over ‘persons passing through a checkpoint’.

Sorry Sir, We’re All Non-State Actors Now

The recent High Court judgment in the case of Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) has sparked a lively debate about the authority to detain individuals in the context of a non-international armed conflict (NIAC). In response to a post by Kubo Mačák offering a critical perspective on Mohammed, Lawrence Hill-Cawthorne and Dapo Akande have lent their support to the judgment in arguing that no legal basis for lethal targeting and detention exists in IHL.Essentially, Lawrence and Dapo advocate an understanding of IHL which conceives it as a purely regulatory framework in the sense that its sole purpose is to impose constraints on how States and non-State actors conduct hostilities, without recognising or conferring any rights on them to engage in such hostilities in the first place. On this view, killing and detention is permissible in armed conflict not because it is authorized by the rules of IHL, but because, and only in so far as, it is not prohibited by other rules of international law. In this post, I intend to demonstrate why this ‘Lotus approach’ to IHL is not compelling.

The Legal Framework of Future Military Operations

In July 2013, the House of Commons Defence Committee launched an inquiry into the legal framework governing future operations of the British armed forces as part of its preparations for the next Strategic Defence and Security Review. The Committee has now published its findings in a report entitled ‘UK Armed Forces Personnel and the Legal Framework for Future Operations’. This post reviews some of the main features of the report.

Ukraine Insta-Symposium: When does the Breach of a Status of Forces Agreement amount to an Act of Aggression?

This post examines the deployment of Russian troops in Crimea as part of a symposium on the Crimea crisis convened by Opinio Juris.I argue that a strong case can be made that the Russian Federation is in material breach of the Black Sea Fleet Status of Forces Agreement and as such is responsible for committing an act of aggression within the meaning of Article 3(e) of the Definition of Aggression.

Derogations from the European Convention on Human Rights in Deployed Operations

The European Convention on Human Rights (ECHR) is a key component of the legal framework governing the activities of the British armed forces. In recent years, the Convention’s application to military operations has come under growing criticism, leading commentators to call upon the Government to derogate from the ECHR during deployed operations. It is not immediately clear, however, whether or not derogations are in fact available to the UK in such circumstances. The purpose of this submission is to shed some light on this issue.

Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?

In October 2013, the Policy Exchange, a British think tank dedicated to the development and promotion of new policy ideas, published a Report entitled ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’. The Report makes fascinating reading and deserves serious attention. Written by Thomas Tugendhat and Laura Croft, its aim is to explain how the cumulative effect of legal developments taking place over the past decade has undermined the ability of Britain’s armed forces to operate effectively on the battlefield. In this post, I offer some critical thoughts on the report.

HPCR Live Seminar

On 26 January 2012, I contributed to an online seminar on Regulating the Conduct of Military Personnel in Peace Operations, hosted by the Program on Humanitarian Policy and Conflict Research at Harvard University. Repeated reports about human rights abuses committed by members of peace support operations have raised important questions about the legal framework applicable to peace operations and the need to hold the perpetrators of such abuses to account. My contribution focused on the role of status of forces agreements in this context.

The NATO SOFA at Sixty: Heading for Retirement or Has Life Just Begun?

In this short contribution to the NATO Legal Gazette, I examine the impact the NATO SOFA has had over the past six decades, in particular its possible contribution to the formation of rules of customary international law.

Normative Power Europe: Status of Forces Agreements in the Field of European Security and Defence Cooperation

In this second contribution to the NATO Legal Gazette, I provide an overview of the status of forces agreements concluded by the EU and its Member States in the context of European security and defence cooperation