human rights

2016 January

Human Rights in Armed Conflict: Law, Practice, Policy

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Gerd Oberleitner, Human Rights in Armed Conflict: Law, Practice, Policy (Cambridge University Press, 2015, 431 + xx pp, £109.99) ISBN 9781107087545, Hardback. Today, it is widely recognised that human rights continue to apply in times of war. However, the implications of this principle remain contested. The international community is deeply divided about the proper role of

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.

2015 July

Human Rights and Military Operations: Confronting the Challenges

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Noëlle Quénivet (UWE Bris­tol) and myself have just published SSI Occasional Paper No 2, entitled ‘Human Rights and Military Operations: Confronting the Challenges’. The paper summarizes the findings of a workshop held in February 2015 as part of a British Academy-funded research project we are conducting on the impact of international human rights law on the British armed forces.

2015 June

Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands

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In this article, I argue that the European Court has taken one step forward in the Jaloud case by introducing the notion of full command into the debate on extra-territorial jurisdiction, but two steps back by sowing unnecessary confusion with regard to the applicable rules of attribution.

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.

2014 November

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

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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’.

2014 September

Clearing the Fog of Law

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Led by Professor Noëlle Quénivet (UWE Bristol) and Dr Aurel Sari (University of Exeter), the purpose of the present project aims to develop a more sophisticated understanding of the challenges posed by international human rights law and its real and perceived impact on military operations. The work is funded by the British Academy and will involve a series of workshops and other activities over two years.

2014 May

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

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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.