Presumption of Guilt: Islamic State and UK Criminal Law

Islamic State Fighters (Picture Credit: The Guardian)Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to  ominously declare a “greater and deeper threat to our security than we have known before”.    Continue reading “Presumption of Guilt: Islamic State and UK Criminal Law”

Presumption of Guilt: Islamic State and UK Criminal Law

Isis, the Caliphate and new states

 _75935223_iraq_syria_isis_caliphate_20140630_624_v1The rapid advance of Isis, (The Islamic State in Iraq and the Levant/Islamic State in Iraq and Syria or Islamic State in Iraq and al-Sham), its renaming of itself as “Islamic State” combined with the declaration of a Caliphate and added to recent statements made by the regional government of Iraqi Kurdistan around its potential future have brought questions as to the continued existence of Iraq and potentially, Syria, as states to the fore. In their statement declaring a Caliph, Isis have explicitly referred to the Sykes-Picot Pact (the division by the UK and France of former Ottoman Territories during the First World War, for a repudiation of the claim that the colonial period has some role to play, see here) as coming to an end. In doing so, Isis are making use of the coverage of the First World War anniversaries in the West (for example ceremonies this weekend on the 100th anniversary of the assassination of Archduke Franz Ferdinand in Serbia) questioning the aims of that war and the narrative of the so-called “democratic” states standing for freedom against the imperial powers at Europe’s centre but also the legitimacy of the present status of Iraq and Syria from their inception as states following the collapse of the Ottoman Empire. In doing so Isis are attempting to challenge the tenets of legitimacy under which statehood currently operate but perhaps in considering their own claims to statehood ought to consider whether the same tools that brought Syria and Iraq into fruition may be employed again. The broader question for international law is whether this question of statehood ought to rest on apparently ‘objective’ factors that have little to do with internal legitimacy or historical events and ought to be replaced with a normative, perhaps human rights framework, or whether the present state of law is preferable even with its apparent lack of normative code.

Their claim to legitimacy stems quite clearly from an interpretation of Islam that enables Isis to act as they have but within these arguments there is a clear narrative conforming to the traditional claims to statehood and are interesting when set alongside other contemporary debates such as Ukraine and Kosovo. Traditionally international law has not cared as to the internal character of a state and the existence of a theocracy is certainly no bar given the acceptance of the Vatican (Holy See) or Iran as states. Indeed, by the early 1980s most states had stopped recognising governments on the basis that state recognition was what was required for international law and the recognition of governments was a political decision. Recent actions by European states as well as the US and Russia regarding the Arab Spring or the Ukraine does open the possibility that this policy may have changed as the Cold War political exigencies that caused the initial change are no longer relevant. Thus Isis’ character as a government is no bar to statehood. Of course this is not to suggest that other elements of international law such as rights pertaining to women, minorities and freedom of thought or expression would not be violated but rather to clearly argue that this is not related to statehood as generally accepted within international law. EU states did require the former Yugoslav and USSR Republics to conform to human rights protection before recognising them but this has not been replicated with any uniformity since that period. The UN aims at universal membership and thus is highly unlikely it would bar Isis’ Islamic state from membership if it to be recognised as a state.

Statehood as outlined in the Montevideo Convention requires;

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states

In their statement today Isis claimed to fill the first and second criteria by making a definite claim to territory and population that runs from ‘northern Syria to the Iraqi province of Diyala north-east of Baghdad.’ Of course a claim does not necessarily reflect reality. Large swathes of these territories have very sparse populations and certainly both Damascus and Baghdad would argue that these borders are contested even if they currently do not exercise firm control over them. While there are no temporal requirements for control of population or territory when these are combined with the other two elements of Montevideo some form of long-term governance does appear necessary. Governments, as already discussed, do not have to conform to any particular form but the normal activities of governance such as control of the use of force or the functioning of utilities combined with some of revenue collection would indicate a government in control. Currently it is unclear as to whether Isis would meet such a standard. The last criteria, the capacity to enter into relations with other states, does not actually require other states to do so just that this is possible. For Isis this criteria does appear lacking if social media is discounted. While of course the entire legitimacy of such criteria as Montevideo could be dismissed by Isis in all probability it is what will be applied by other states. One potential barrier may be the right to self-determination which would require some form of consultation with the populations that are controlled by Isis but in itself self-determination is not a right to statehood. Whether self-determination can put a bar on declaring statehood once the other criteria are satisfied is open to question and has not been resolved by a recent International Court of Justice Advisory Opinion on Kosovo which touched upon this issue.

In contrast to Isis, the Government in Kurdish Iraq appear far better placed to fulfill these criteria though the advance into Kirkuk makes at least some of its border disputable but also gives it a further source of revenue. Their current boundaries are defined, (even if they intend to make further claims in Turkey or Iran), there is a permanent population (albeit with a current influx of refugees), there is a government and this government has representatives in other states, although they are not currently at the status of ambassador. The non-recognition of a new Islamic State or a new Kurdish state does not necessarily mean either the continuation or disappearance of Iraq and Syria. The rump of either can continue, as Ukraine and the former Yugoslav states have clearly demonstrated. While Isis’ claims cause an existential threat to all states in the region the Kurdish question is more problematic for Turkey, Iran and Iraq. The malleability of state definitions leaves open a range of possibilities for those states potentially wishing to recognise the latter over the former but the broader issue of the legitimacy of governments remains a political query where states have to decide whether they are going to claim to have normative values, including human rights particularly with regard to women, or whether statehood will be the de minimus Montevideo requirement only for recognition.

New borders are possible as are new states. The recent up surge of territories claiming statehood (in Ukraine, in Georgia, within Russia, Kosovo, potentially Scotland or the Basque region) may slowly lead to a change in how we go about identifying new states that sets a clear break between the Montevideo criteria and what followed the break-up of the USSR and Yugoslavia, but at present, the law appears devoid of any claim to require a government to be democratically elected, representative or that it grants any form of rights to its citizens.

Isis, the Caliphate and new states

Floundering attempts at peace in Syria

The Security Council’s mandate in Syria has come to an end and while a UN liaison office will remain in the country, all the peace observers have vacated their mission. Coupled with Kofi Annan’s decision to end his role as envoy of the UN and Arab League, this pull out  suggests that the international institutional and legal machinery has failed to either bring the violence to an end or to restrain both sides of the conflict from descending into ever-more vicious attacks, leaving the Syrian population to their own ends. The various blog posts on Syria chronicle the most violent iteration of the Arab Spring and presents a litany of failures both by the parties within Syria but also the various institutions and states who have been aiming to end the conflict or, at the very least, ameliorate the suffering of the Syrians.

Several rationales can be given for why international action in Syria failed while in Libya, it comparatively succeeded, and these explanations are not simply based upon Russian and Chinese intransigence at the Security Council. First, there was the relatively slow reaction of those outside Syria to the growing protests. Continue reading “Floundering attempts at peace in Syria”

Floundering attempts at peace in Syria

NATO, Turkey and Syrian Airspace

In my previous post on Syria I discussed the possibility of NATO action in Syria. The shooting down of a Turkish military plane in international waters by Syrian forces once again raises the issue of potential NATO involvement in the conflict. In the earlier post, I noted that previous Syrian military engagement across the border into Turkey do not reach the level of an ‘armed attack’ that would be necessary for the invocation of self-defence under the UN Charter. The invocation of self-defence and subsequent use of force, does not require Security Council authorisation and thus would allow for action beyond the strictures of the UN. If Syria were to carry out such an armed attack,  Turkey as a member of NATO, potentially could invoke article 5 of the North Atlantic Treaty allowing for collective self-defence on behalf of any of its members. At the time of the previous post I suggested that this was unlikely but that the potential for a wider conflict is not beyond the realm of possibility. Events over the weekend, and the statements of the Turkish Government, certainly suggests that such NATO action has, since my post, become a more likely possibility.

While Turkey did send tanks and anti-aircraft weapons to its border with Syria and requested a NATO meeting to discuss the shooting down of its plane, at present, this does not appear to be leading to any further action. NATO Secretary General  Anders Fogh Rasmussen did state that NATO stood behind Turkey but the members, currently do not seem to suggesting any immediate military action. Continue reading “NATO, Turkey and Syrian Airspace”

NATO, Turkey and Syrian Airspace

Syria and International Action

The recent events in Houla have, yet again, put Syria front and centre of news reports. Over recent months we have featured posts on Syria here, here, here and here but as the situation disintegrates and fears regarding a sectarian civil war rise, this post discusses, with a particular focus on the Security Council, what the options are from an international legal perspective .

First, clearly the Security Council, with few exceptions, holds all the cards with regard to any use of force and thus makes any decision to act reliant on the agreement of the permanent five member states. Article 2 (1) and 2(4) of the UN Charter which guarantees both the sovereignty equality of states and prohibits the use of force appears to be the basis on which Russia, and also though with lesser fanfare China, is refusing to back any action, either short of or the use of force, by the UN. Russia’s continued insistence that Syria be allowed to control its own affairs has led to the United States’ alleging  that they are contributing to a possible civil war.

The descent into further violence raises questions of whether Syria has already spiralled into an internal armed conflict. The Syrian Government has continuously used the language of terrorism, perhaps with the attempt of not recognising the Free Syrian Army and thus maintaining the conflict on the level of civil disobedience and not humanitarian law. The invocation of humanitarian law would have serious consequences for the conflict, including the raising of responsibilities,  not only the Syrian Government but also the Free Syrian Army, to comply with laws of war. Continue reading “Syria and International Action”

Syria and International Action

6 Things I Learned at the London “Building Restorative International Justice: the ICC of the Future” Conference

On Friday of last week a conference entitled “Building Restorative International Justice: the ICC of the Future” took place in the Royal Commonwealth Society in London to discuss the most pertinent issues regarding the present performance and future direction of the International Court. Taking place in the immediate aftermath of the Lubanga conviction, the conference arrived at a highly propitious time for assessing the Court’s record and prospects. Bringing together some of the great and the good in the academy and practice (and of course those with a foot in both fields), the papers presented represented some of the staunchest advocates of the Rome Statute apparatus and some very vociferous critics (the programme is here). As the Conference was organised by IC Publications who print the New African, there was a very strong African focus, reflecting the fact that all active cases are based there.

Continue reading “6 Things I Learned at the London “Building Restorative International Justice: the ICC of the Future” Conference”

6 Things I Learned at the London “Building Restorative International Justice: the ICC of the Future” Conference

O'Gorman on Syria and UN reform

We are delighted to welcome this guest post by Colm O’Gorman, Executive Director of Amnesty International Ireland. It considers the need for UN reform in light of the Syrian crisis. This piece first appeared in the Irish Examiner on May 3rd.

A couple of months ago I was watching a BBC report from the city of Homs, in Syria. At the end of the clip, a small group of young men dashed across rocky ground at night. They were burying a seven-year-old girl who had been killed that day. They were doing it at night because it was too dangerous to bury the dead in daylight.

Since the uprising in Syria began in March 2011 the images and testimonies coming from victims and survivors have been graphic and disturbing. But somehow, this stood out. A nameless young girl killed, but no time to mourn, instead a hurried burial under fire by young men risking their lives for a dead child.

Continue reading “O'Gorman on Syria and UN reform”

O'Gorman on Syria and UN reform

Visit of Vice-president Xi Jinping and Ireland's response to difficult issues in international relations

The publicity surrounding the visit of Vice-president Xi Jinping to Ireland affirms the important role China now plays within the international legal order. Other than perhaps the pomp and ceremony surrounding the visits of US Presidents, his visit is as well publicised, if not better, than what most heads of state usually receive. Such ceremony, even though Vice- President Xi is the Vice-President rather than President of China. Admittedly, according to most reports, he is the heir apparent to China’s Presidency. When President Hu Jintao steps down next October Xi Jinping will, most likely, succeed him. In fact, he was greeted in a similar fashion in the United States last week. The fact that the Chinese Vice-President is greeted with such ceremony indicates just how important states now consider good relations with the Government in Beijing.

The publicity surrounding the visit has centered on trade relations and improving ties, though the Tánaiste stated that human rights issues were raised,

in the context of our candidacy for the Human Rights Council of the United Nations, and I underlined the importance Ireland attaches to human rights and our view that human rights are universal Continue reading “Visit of Vice-president Xi Jinping and Ireland's response to difficult issues in international relations”

Visit of Vice-president Xi Jinping and Ireland's response to difficult issues in international relations

International Law in 2011

While, there probably has never been a year that has not been ‘interesting’ for modern international law,  the past twelve months has seen several developments which were entirely unpredicted this time last year. This post aims to give a general overview of the various developments in international law over the past year. While significant events such as Libya and the Durban environmental conference, particularly Canada’s decision to leave the Kyoto Protocol to reduce carbon emissions, have dominated the news, a number of other significant events have also contributed to an absorbing year for international law. The events chosen here are mainly picked based on their impact on the development of international law at a general level, more specific developments in particular human rights fields are left for those more expert in their fields to discuss.

At the United Nations the suspension of Libya from the Human Rights Council, the attempts of Palestine to become a member as well as its successful application to join UNESCO, the establishment of a Special Rapporteur for Transitional Justice, as well as the annual General Assembly speeches and the usual Security Council wranglings regarding sanctions on Iran were dominant.

Continue reading “International Law in 2011”

International Law in 2011

Syria and the Arab League

The Arab League has taken an uncharacteristic turn in its activities over the past ten months. While the Arab Spring is takings its toll on states in the region, it appears that the most important regional organisation in North Africa and the Middle East, the Arab League, is catching some of the euphoria of change. This is unexpected, particularly from an organisation dominated by undemocratic states whose main purpose was seen by many to simply attack Israeli policies and be an ineffectual talking shop for support of the Palestinian cause. Its decision to support NATO airstrikes against Libya in conjunction with the UN was surprising enough however its recent activities with regard to Syria is frankly, astonishing. The extent of this change is evidenced by Syrian claims that the Arab League are acting on the basis of some Zionist plot.

The League of Arab States, as it is officially called, was established in 1945 by six original members Egypt, Iraq, Transjordan, Lebanon, Saudi Arabia and Syria. Currently it has 22 members, including Palestine, located across the Middle East and North Africa. The Charter sets out the aims of the organisation which is mainly centred on co-operation and economic relations and more critically safeguard the independence and sovereignty of its members. The first Arab League summit was not held until 1964.  Under Article III, decision-making is based upon 1 member 1 vote. Under Article V, the resort to force to resolve conflicts between two member states is prohibited:

Any resort to force in order to resolve disputes between two or more member-states of the League is prohibited. If there should arise among them a difference which does not concern a state’s independence, sovereignty, or territorial integrity, and if the parties to the dispute have recourse to the Council for the settlement of this difference, the decision of the Council shall then be enforceable and obligatory. Continue reading “Syria and the Arab League”

Syria and the Arab League