Dr Aurel Sari
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2015 April

The Fable of the Law of the Flag

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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.

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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’.

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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.

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2014 April

The Legal Framework of Future Military Operations

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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.

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2014 March

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

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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.

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2013 December

Derogations from the European Convention on Human Rights in Deployed Operations

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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.

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2013 October

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

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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.

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2012 February

HPCR Live Seminar

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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.

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