In this contribution to the Research Handbook on Jurisdiction and Immunities in International Law (edited by Alexander Orakhelashvili), I explore how the rules of State jurisdiction and State immunity apply to foreign armed forces. What is the law of the flag? Why is the legal status of foreign military personnel not the same as that of tourists? Find out here!
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.
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.
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.
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.
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.
This article examines the implications of the Serdar Mohammed case on the law of armed conflict. It argues that the judgment is mistaken as a matter of law and undesirable as a matter of policy, as it drives the convergence between international human rights law and the law of armed conflict too far.
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’.
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.
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.
