Responsibility for peace, and responsibility in war: on the military operation in Mali

 Posted by: Bérénice Boutin

It has been almost two weeks since France began a military intervention to help the Malian army fight Islamist groups controlling the north of the country. The operation — code-named ‘Serval’ — was sparked by the ‘serious deterioration of the situation’ in Mali, after successful offensives by extremists who managed to take over the city of Konna, ‘a frontier town that had been the de facto line of government control’. The action of France, coming about after months of lengthy negotiations attempting to resolve the crisis in Mali, has been overall welcomed by the international community, and reportedly relatively successful in pushing back Islamists. In terms of international law, the military operation raises a number of issues, two aspects of which this blog post will address: the responsibility for maintaining peace, and the responsibility during the conduct of war.

1. RESPONSIBILITY FOR MAINTAINING PEACE

France has repeatedly stated that it was acting in accordance with international law, referring to UN Security Council Resolutions, Mali’s request, and/or Article 51 of the UN Charter to support its claim, but fell short of elaborating which specific legal ground was actually justifying its operation. To begin with, French actions cannot be said to fall within the ambit of UNSC Resolution 2085, which authorized on 20 December 2012 the deployment of an international military force in Mali. Resolution 2085 indeed authorized an African-led International Support Mission in Mali (AFISMA), to be composed of troops from member States of the AU and ECOWAS and other countries in the region. Besides, the Resolution states that ‘the military planning will need to be further refined before the commencement of the offensive operation’. The fact that the UN Secretary-General expressed the hope that the intervention would be ‘consistent with the spirit’ of UNSC Resolutions only confirms that the French operation is not based on any of them. Although authorized by the UN, the deployment of the AFISMA has been protracted inasmuch as the force ‘was not expected to even begin its offensive before next September or October’. In this context, the French operation was a very swift answer to an urgent call for help from the Malian government, at a time where troops from neighboring States were not in the position to rapidly react.

This request by Mali is actually what justifies best the use of force by France. Indeed, pursuant to Article 20 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR), valid consent from a State ‘precludes the wrongfulness of that act in relation to’ this State. Accordingly, since Mali solicited France to use force in its territory, the forceful action otherwise wrongful became justified. Some doubts have been raised as to whether the consent expressed by the current Government of Mali, an interim government in place since only a few months and established in the wake of a military coup, can qualify as ‘valid’ in the sense of Article 20 ASR. The legitimacy of a government is indeed an element to be considered in appraising the validity of consent according to ILC commentary to Article 20 (para 5); yet the notion is far from having a settled meaning in international law and rather depends on the perceptions of each State. An unequivocal appraisal of the legitimacy of the Malian Government would be difficult and does not appear necessary for the purpose of Article 20 ASR. What can be demonstrated is that a number of States — which positively considered Mali’s request — are of the opinion that the Government is, so to speak, ‘legitimate enough’ to demand an intervention. Indeed, Mali’s interim President Traoré was admittedly not elected, but was appointed with relative international support, notably from ECOWAS. Besides, the local population has appeared very favorable to the military operation since its inception, confirming the legitimacy of the Government’s consent.

In such a situation of requested intervention within an internal conflict, Article 2(4) of the UN Charter, which prohibits the use of force between States, actually ‘does not come into play’[1]. The absence of inter-State conflict is also why the argument of (collective) self-defense — notably advanced before the UNSC by the Permanent Representative of France to the UN ­— ought to be discarded. As rightly demonstrated by Prof. Christakis and Dr. Bannelier on EJIL:Talk!, it does not make sense to interpret Article 51 of the UN Charter so as to include self-defense against rebel groups in northern Mali.

The operation thus appears justified, and has been overall widely praised by the international community given the urgency of the situation. This formal support however stands in sharp contrast with the very limited concrete support contributed to the operation. A number of Western States have expressed their willingness to contribute logistical support, but none has offered to participate in combat operations. The UK, for instance, has agreed to make transport aircrafts available to France, and even sent a few troops charged with providing strategic support, but stressed that no troops will be deployed in combat operations. Belgium, Canada, Denmark, Germany and the US are amongst the other States which deployed transport planes to help transporting French equipment and troops to Mali. The EU has accelerated the approval of a EU Training Mission (EUTM), but its troops will be focused on training the Malian army, and will not directly help fighting rebels. As mentioned above, African States have the willingness to participate but have a limited capacity to deploy their troops in haste. Many of them confirmed their commitment to send troops for the AFISMA, but ‘even if some troops arrive in Mali soon, training will take more time’, so that help from States able to quickly react is needed until the peacekeeping force is fully deployed.

The various contributions provided are useful and welcome. It is nonetheless striking that most international actors support the intervention, but none of them want to get dirty hands by actually going to war. In other words, many States seem unwilling to share the burden of restoring peace in the area. In his 2004 Report ‘A more secure world: our shared responsibility’, the UN Secretary-General insisted that ‘States should strongly support’[2] and broadly participate in efforts to effectively implement the system of collective security. Whether to participate in a military operation aimed at restoring peace is, in any case, a decision that a State is free to make, so that no strict obligation to engage in a war can be formulated. But the collective duty to ensure that peace is maintained in the world is shared by all States. As long as States remain the only actors with military capacities, the aims of this shared duty can only be achieved by increasing cooperation and promoting a wider participation of States.

2. RESPONSIBILITY FOR WRONGFUL ACTS IN MILITARY OPERATIONS

For those States which decide to actively engage in the conflict comes the risk of having their responsibility engaged for internationally wrongful acts. Responsibility in this strict sense refers to the obligation of reparation incurred by a State when a breach of international law is attributable to it. Some allegations of possible wrongful acts in Mali have been made, concerning summary executions by Malian armed forces and civilian deaths resulting from French air strikes. In this military operation, France and Mali are fighting together against Islamist groups. In terms of attribution, the question arises whether their acts can be individually attributed or ought to be attributed to both.

Although cooperating at the strategic level, French and Malian actions have been up to now clearly separable. The armed forces remain under national command with no unified command over both forces, so that every organ remains fully under the authority of its State. Besides, the two States have at first not engaged in common operations. To retake the town of Diabaly, Malian forces fought on the ground, with French forces ‘providing only air support’, and control of the Gao airport was taken by French ground forces acting alone. In these circumstances, wrongful acts occurring in the operations can be individually attributed to each State under Article 4 ASR.

Complicating factors are however likely to emerge. For instance, French and Malian troops could conduct joint operations. It is debated whether a specific conduct alleged as wrongful can be attributed to two States on the ground that they were jointly acting. Article 47 ASR recognizes that the same internationally wrongful act can be attributed to more than one State, and joint acts are one of the circumstances of possible dual attribution mentioned by the ILC in its commentary to this Article. But unless two soldiers pull the trigger together, it can often be argued that a conduct is individually attributed to the State whose organ was acting. Another layer of complexity is to be added with the progressive arrival of forces composing the AFISMA, as well as troops part of the EUTM. The command structures of the each mission will remain distinct, but they will certainly cooperate and possibly contribute to common injuries. The difficulty in such a situation would be to assess the amount of damages to be paid by each responsible party. In time to come, the multiplicity of actors involved in the conflict will raise complex questions of responsibility, which will assuredly be further discussed on this blog.

---

[1] Y. Dinstein, War, Aggression and Self-Defence (5th edn, 2011), p 119.

[2] A more secure world: Our shared responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (2004), p 69.

Update – The Dutch Courts and Asylum at the ICC: From Shared Obligations to Obligations of No One

 Posted by: Irving Emma

In October 2012, the SHARES Blog carried a post that discussed a September Dutch Court decision concerning the on-going asylum situation at the ICC. Since then there are have been two important developments: the matter has been taken to the European Court of Human Rights (ECtHR) and the original Dutch decision has been overturned on appeal.

First, one of the detained witnesses sought to challenge his detention by bringing a claim against the host State of the ICC before the European Court of Human Rights (ECtHR). However, the application in Longa v The Netherlands was declared inadmissible on the basis that The Netherlands had no jurisdiction under Article 1 of the European Convention on Human Rights. While acknowledging that jurisdiction is primarily linked to territory, the ECtHR drew on previous case law dealing with the ICTY to decide that the mere presence of the ICC on Dutch territory is not sufficient to engage Dutch jurisdiction. It went on to dismiss the arguments made that the level of human rights protection at the ICC is deficient, and then rejected the notion that by accepting jurisdiction to hear the asylum claims the Netherlands had also accepted jurisdiction under the Convention. The Court held that there was no obligation on member States of the ECHR to allow a person to await to outcome of an asylum claim on its territory.

Armed with the Longa decision, the Dutch authorities filed an appeal to the earlier Dutch Court decision that would have compelled The Netherlands to take over control of the witnesses. The Appeals Court overturned the first instance decision on 18 December 2012. In this decision, the Dutch Appeals Court denied the lower court’s assertion that the witnesses were in a dead end detention situation, which as it had no end in sight, had therefore become illegal. It was held that just because the asylum procedure was lengthy, did not mean it was unending. The Court held that in any case, it was not for it to consider whether there was a conflict between the detention and Articles 5 and 13 ECHR: as the ECtHR had said in Longa, the Netherlands lacked jurisdiction under Article 1.

Once the ECtHR handed down its opinion on the situation of the detained witnesses, The Netherlands was offered an easy way out of the compromising position which the judge of the first instance court had placed it in. The Dutch authorities were no longer compelled to take over the witnesses, and suffer the precedential and political consequences that would entail. However that does not remove the question of whether the Longa decision was indeed a good one. On closer inspection, one might wonder whether the precedent the ECtHR relied on was not easily distinguishable. Having read the arguments of the applicant, one is struck by the fact that the ECtHR seems to have overlooked a number of relevant facts which may have led it to a different conclusion.

It is to be regretted that an unconvincing decision of the ECtHR has left the witnesses detained at the ICC unprotected. The September Dutch Court decision arguably took the better approach to the legal questions raised by the situation. Now the most pertinent question is to whom can the witnesses turn to seek relief? Not to the ICC, nor the DRC, and now not to the Netherlands. The result is an example of where shared obligations result in obligations for no one.

Adjudicating Somali Piracy Cases – German Courts in a Double Bind

 Posted by: Ahlborn Christiane

Cross-posted on the CJICL blog

On 19 October 2012, a court of first instance in Hamburg sentenced ten Somalis to prison in what was the first piracy case before German courts in over four hundred years (the decision has not yet been released but for a comprehensive press release of the court in German see: here). The acts of piracy took place on 5 April 2010 when the Somalis entered the German container ship “Taipan”, which was on its way from Haifa to Mombasa, with a distance of about 530 nautical miles from the Horn of Africa. The heavily armed Somalis intended to take the crew of the Taipan hostage and to hold them for ransom, but the crew fled into a hidden safe room and cut the ship’s energy supply. Shortly thereafter the Somalis were arrested by the Dutch frigate “Hr. Ms. Tromp”, brought to the Netherlands and handed over to Germany on 10 June 2010. The procedure began on 22 November 2010, and ended with prison sentences ranging from two to seven years for extortionate kidnapping (§ 239 (a) para. 1 of the German Criminal Code) and attacking sea transportation (§ 316 (c) para. 1 no. 1 of the German Criminal Code).

The recent increase in piracy trials before domestic courts in Europe and beyond – also including courts in the Netherlands, Italy, France, and the United States – is the result of intensified efforts to fight piracy off the Horn of Africa. In 2008, the Somali government had asked the UN Security Council for support in this regard. The UN Security Council reacted to the request by passing resolutions 1814 (15 May 2008), Resolution 1816 (2 June 2008) and 1838 (7 October 2008), which authorised UN member states to take measures to fight piracy in Somali waters. The resulting international anti-piracy efforts are led by the EU’s ATALANTA operation (EU-NAVFOR Somalia), which the Council of the EU established by means of EU Council Joint Action 2008/851 and EU Council Decision 2008/918, on 8 December 2008. Since 2009 ATALANTA’s efforts are further reinforced by NATO’s Operation Ocean Shield and the US-led Combined Task Force (CTF-151). The international security presence has undoubtedly had a deterrent effect on pirates in the Indian Ocean, which should not be underestimated. Nonetheless, despite the UN Security Council mandates, warships are somewhat reluctant to arrest suspected pirates on the high seas, possibly anticipating the legal difficulties related to their treatment back home. For instance, the German navy – following orders by German or EU authorities – has repeatedly released suspected pirates for lack of authority over them (for press reports see here and here).

In view of President Guillaume’s statement in the Arrest Warrant case that piracy is the only true case of universal jurisdiction under customary international law (p. 37, para. 5), the reluctance of states to arrest and try suspected pirates might come as a surprise. Indeed, Cicero already characterized pirates as “enemies of all peoples” (hostes humani generis in De Officiis iii 29) and piracy is nowadays considered ius cogens. The details of this ius are fleshed out in Articles 101 to 107 and 110 of the UN Convention on the Law of the Sea (UNCLOS). Article 101 of UNCLOS defines piracy as consisting of (a) any illegal acts of violence or detention, committed for private ends, against a ship, aircraft, property of persons (i) on the high seas or (ii) outside the jurisdiction of any state. Paragraphs (b) and (c) of Article 101 of UNCLOS also include voluntary participation and incitement or intentional facilitation in the definition of piracy. According to Article 105 of UNCLOS, the capturing warship may send pirates for trial before its own courts, thus recognizing that states have universal jurisdiction. Nonetheless, Article 105 of UNCLOS does not establish an obligation for the capturing state or third states to bring pirates to trial (see Douglas Guilfoyle’s analysis on EJIL:Talk! here) and domestic courts are generally hesitant to establish jurisdiction in cases of piracy without any direct links with their respective countries. Only few exceptions exist in this regard. In 2010 a Dutch court in Rotterdam held that it had universal jurisdiction over five Somali pirates arrested by a Danish frigate (for the English press release see here), and in the 2012 decision in United States v. Ali a US Court found that a Somali interpreter could be lawfully subject to domestic prosecution on counts of aiding and abetting acts of piracy even without a nexus with the US. Most recently, on 18 October 2012, a Court of Appeal in Nairobi referred to universal jurisdiction under international law when repealing a controversial 2010 judgment in which a lower court had held that Kenyan courts had no jurisdiction to try suspects of piracy charges allegedly committed in the Indian Ocean beyond Kenya’s territorial waters (for a detailed news report see here)

The Hamburg criminal court chose a similar approach to justify its jurisdiction over the ten Somali pirates, but also referred to the fact that German nationals were affected by the criminal acts at sea. In addition to international law considerations, German jurisdiction over the pirates – and in particular the jurisdiction of the Hamburg court – was also based on the German Code of Criminal Procedure. The determination of the court of jurisdiction for criminal acts committed on ships and planes is regulated in section 10 of that Code. Accordingly, criminal acts at sea are adjudicated by the court in whose district the ship’s home port is located. More precisely, section 10 (as translated by gesetze-im-internet.de) provides: “If the criminal offence was committed outside the territorial scope of this statute on a ship authorized to fly the Federal flag, the competent court shall be the court in whose district the ship’s home port is located, or the port within the territorial scope of this statute first reached by the ship after commission of the offence.”

Despite the fact that the Somalis had violently attacked a German ship, the lengthy (105 days in court) and complex trial in Hamburg was heavily criticized in the German public, mainly for reasons related to the overall purpose and costs of this “non-sense justice” (see the comment on Spiegel Online here). The defence argued that the detention of the pirates was already unlawful because the Somalis were not brought before a German judge without delay while being detained on the Dutch warship Tromp. However, the European Convention of Human Rights (ECHR) – on the basis of which the Hamburg decision may be ultimately checked – allows for some degree of flexibility. The potential limits of this flexibility were determined in the above-mentioned Rotterdam case, in which the Dutch court found that the waiting period of 40 days between the arrest of the Somali pirates and the hearing by a judge violated Article 5 of the ECHR (see in this regard the decisions of the European Court of Human Rights (ECtHR) in Rigopoulos v. Spain and Medvedyev v. France).

Besides procedural concerns, substantive human rights considerations arguably weighed more heavily in the Hamburg proceedings. Several of the pirates pleaded that they were coerced to commit acts of piracy; others had argued that they did not have another possibilities to make a living under the harsh conditions in Somalia. The Hamburg court rejected these arguments in light of the available evidence, but took into account the dire living conditions in Somalia in determining the different sentences. However, while dire living conditions per se can certainly not have an exculpatory function, the application of German criminal law to Somalis that have never stepped on European soil before their trial in Hamburg has rightly resulted in considerable criticism. German media have repeatedly pointed out that the suspects – some of them possibly under age – were unfit for a trial before German courts. When asked for his birth details, for instance, one pirate stated that he was born “under a tree” or “during the rainy season”. Considering this criticism from a more legal point of view, a look at the relatively dense case law of the European Court of Human Rights on the principle of legality may indeed reveal that the Hamburg decision does not comply with established standards such as accessibility and foreseeability of the applicable law. Although the Somalis were certainly aware of their wrongdoing when capturing the Taipan, they could not expect their possible punishment under German criminal law, and act accordingly. In fact, the Hamburg court stayed below the substantially longer sentences requested by the prosecution – a decision that might also have been based on legal, and not only socio-economic, reasons. More generally, the adjudication of Somali piracy cases calls into question the aims of criminal justice, in particular with regard to post-detention re-integration into society.

Interestingly, another German court has taken a more human rights friendly stance about a year before the Hamburg decision. On 11 November 2011, a German administrative court in Cologne ruled that Germany had violated the prohibition of torture, inhuman and degrading treatment (Articles 3 ECHR and 7 ICCPR) by transferring Somali pirates to Kenya, who had previously been arrested for suspected acts of piracy by the German frigate “Rheinland-Pfalz” acting in the framework of ATALANTA (the judgement is available here). The reason why the suspected pirates were transferred to Kenya was an Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of piracy, which was approved by the Council of the EU on 26 February 2009 (Council Decision 2009/293/CFSP). The German court rejected two other claims by the plaintiffs that the arrest and detention on the Rheinland-Pfalz were in violation of international and German constitutional law, thereby explicitly discussing arguments also brought forward in the Hamburg case regarding universal jurisdiction under UNCLOS (paras. 29-34 of the Cologne judgment) and procedural detention standards under the ECHR and the German Basic Law (paras 35-48 of the Cologne judgment).

As much as the decision of the Hamburg court has been criticized, the court arguably was in a double bind. On the one hand, it was clear from the facts that the suspects had hijacked the German ship – much clearer than in the above-mentioned case before the Cologne court that dealt with German responsibility for the transfer of suspected pirates. On the basis of the available evidence, the Hamburg court did therefore not really have the option to acquit and release the pirates despite possible rule of law violations. On the other hand, the alternative solution of sending the pirates back for trial in Somalia or Kenya was equally not available, for reasons illustrated by the judgement of the Cologne administrative court. In other words, the German court was faced with conflicting human rights considerations. While the respect for the principle of legality, including the foreseeability and accessibility of the law, might have warranted the transfer of the suspected pirates Somalia or Kenya, concerns of possible degrading and inhuman treatment in these countries prevented such an approach. Either road taken by the German Court would have lead to wrongful results, possibly engaging Germany’s responsibility for different human rights violations.

In this context, it is noteworthy that not only Germany would run the risk of incurring international responsibility. The pirates were handed over to German authorities by the Netherlands. Moreover, both the Netherlands and Germany acted under the auspices of ATALANTA and under a Security Council mandate. Indeed, the fact that the German warship Rheinland-Pfalz was part of the EU’s ATALANTA mission played a role in the proceedings before the Cologne administrative court. On the basis of the Behrami and Saramati decision of the ECtHR, Germany pleaded that it was acting under the control of ATALANTA so that the transfer was attributable to the European Union. After investigating the factual details based on the Behrami standard, however, the Cologne court found that the decision to hand over the arrested Somalis to Kenya was attributable to Germany. The court thereby took into consideration that four German ministries had convened to decide about the transfer of the Somalis to Kenya and that the German ministry of defence had given ordered the Rheinland-Pfalz to head for Mombasa (paras. 49-57 of the Cologne judgment). In this regard, it also did not make a difference for the court that Kenya provided assurances and guarantees with regard to human rights protection in the country, and also granted the EU extensive rights of supervision and control in this regard in the above-mentioned Exchange of Letters that was approved by the EU only a few days before the transfer.

When adjudicating piracy, domestic courts are put in a position where they almost inevitably violate human rights standards. This inacceptable situation provides additional support to the on-going debate whether piracy should be regulated on a broader scheme. For instance, it has been suggested to establish international or regional tribunals to take care of piracy cases. Alternatively, piracy cases could be handled by another Hamburg court, the International Tribunal of the Law of the Sea (ITLOS). Since ITLOS only has jurisdiction over states and international organizations, the implementation of such a proposal would require some inventive talent. An international instance with jurisdiction over individuals is the International Criminal Court in The Hague. However, the suggestion of including piracy in the Rome Statute has been rejected. In the absence of any immediate political solutions to address the root causes of piracy in failed states, the number of piracy cases before domestic courts is thus likely to increase. As a matter of fact, nine out of ten Somali pirates filed an appeal against the decision of the Hamburg court. It remains to be seen whether the competent Federal Court of Justice (Bundesgerichtshof), the highest German appellate court in civil and criminal matters, will be able to untie the knot in which the lower courts are wound up.