International Humanitarian Law and Cyber Warfare: Old Laws Vs. New Phenomena

By Jordan Hawthorne

Cyber WarfareWar. A term which traditionally conjures images of uniformed armies, guns, bombs, and other forms of conventional military warfare. Yet the 21st century has seen the rise of a new form of war, one divorced from these traditional methods and means: ‘cyber warfare’.

‘Cyber warfare’ refers to war that is waged not through military hostilities on the ground, but through virtual means and methods, within the domain of ‘cyberspace.’  Despite its unconventional nature, the international legal community agrees that international humanitarian law (‘IHL’) can apply to cyber warfare, provided that attacks are committed within the context of an armed conflict, (see the Tallinn Manual). However, the question of how to transpose and apply IHL rules to this modern phenomenon remains problematic.

One of the greatest challenges arising in the context of a cyber attack is the application of the principle of distinction. The principle of distinction is a cornerstone of IHL, one which requires that parties to a conflict differentiate between civilians/civilian objects, and combatants/military objectives at all times (the latter being legitimate targets in an armed attack, while the former cannot be attacked under any circumstances). Making such a distinction in cyberspace is however wrought with difficulty, due to characteristics of the forum, such as its interconnectivity. Cyberspace is a complex network of countless, interconnected computer systems, spanning across the globe. Civilian and military computer systems therefore may be, and often are, intertwined (with the latter sometimes even relying on the former). As a result, it is incredibly difficult to identify ‘legitimate’ targets, and to limit the effects of an attack to a pure military objective. Continue reading

Will Seven Million Starving Yemenis Ever Find Justice?

The control of food importation into Yemen is being used as a weapon of war, seemingly by all sides.

By Catriona Murdoch* and Wayne Jordash**

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family's hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

A photograph from September 2016 shows a malnourished boy laying on a bed outside his family’s hut in Hodaida, Yemen [Abduljabbar Zeyad/Reuters]

The last two decades have seen a significant expansion of international, regional and domestic accountability mechanisms for an array of international crimes and a variety of forgotten victims. Much of this activity has been focused on the conduct of senior military and political leaders who control or significantly contribute to excesses on the battlefield. However, as is becoming clear, this focus does not adequately confront the scale or scope of victims living in the path of armed conflict or under the yoke of brutalising regimes.

This year has seen the resurgence of famineSouth Sudan is enduring the first famine to be declared globally for six years. NigeriaSomalia and Yemen are all on the brink of famine. In each, deliberate political and military action has contributed to the resulting death and injury of thousands of innocent civilians, demanding that serious consideration be given to prosecuting those responsible. Yemen is emblematic of the problem and a may provide a backdrop for the development of the potential remedy proffered by a more imaginative approach to the prosecution of those who engineer, or fail to act to prevent, mass starvation.

Yemen has been described as the “war the world forgot” eclipsed by Syria and complicated by a Saudi-led coalition supported by the United States, the United Kingdomand France. The resulting humanitarian disaster features a famine of cataclysmic proportions. The word “famine” evokes images of dusty pot-bellied children and the wrath of nature. However, the reality is that this is less nature’s cruelty and more mans: “starvation” often more accurately reflects these wholly human-made and preventable catastrophes, where failed diplomacy and ostensible military objectives collide. Continue reading

Where Do We Find a Solution to the ‘Abuse’ of Diplomatic Immunity?

By Rishikeesh Wijaya*

Court HammerUproar about purported ‘abuses’ of diplomatic immunity has not been uncommon, most recently involving the wife of the sitting Head of State of Zimbabwe, Dr. Grace Mugabe. Media reports assert that Dr. Mugabe attacked a South African model with a piece of electrical cord in a Johannesburg hotel suite. South Africa retrospectively granted her diplomatic immunity, following an assertion by the Embassy of Zimbabwe, and she eventually left the country to return to Zimbabwe with no charges pressed against her.

This was a “U-turn” from the initial decision preventing her from leaving pending the outcome of investigations. Deputy President of South Africa, Mr. Cyril Ramaphosa in response to questioning by South African Members of Parliament, said that immunity was granted in line with “internationally-recognised immunity regulations” but also admitted that it was “the first time [they] have utilized this type of convention”. It is unclear what convention he was referring to.

A separate incident occurred during Turkish President Erdogan’s trip to the United States America in May 2017. Members of his security detail and security guards from the Turkish embassy clashed with peaceful protestors outside the home of the Turkish ambassador in Washington DC.

Diplomatic immunity was initially claimed by Turkish authorities but it has now been reported that 19 people, including 15 identified as Turkish security officials were indicted by a grand jury in Washington DC. Several of these security officials returned to Turkey and it is unclear if there will be any legal repercussions in the United States. It is also unclear if any of those indicted remain in the US as diplomatic staff for Turkey. Continue reading

The World Most Unwanted People: Crime Against Humanity in Arakan

by Abdurrahman Erol and Selman Aksünger*

While a lot of attention has been devoted to North Korea and referendum in Northern Iraq, comments must be made on one of the most tyrannous mass human rights violations of the last couple years. Recently, news on Myanmar and Rohingyas started to hit the headlines again. Graphic pictures and videos from the decades-long conflict zone Arakan, a.k.a Rakhine state, have started to spread in some news and social media sites. Although the State Peace and Development Council of Myanmar does not recognize the Rohingyas as one of the 135 ethnic minority groups, they are indeed such a minority group, which is estimated to constitute 25% of the population of Arakan. It is believed that around 800.000 Muslim Rohingyas live in Arakan and are mainly concentrated in the northern part of the Arakan state. The Buddhist Rakhine constitutes the majority ethnic group in Arakan.

There are different claims about the origins of the Rohingyas. Former and current governments in Myanmar argue that they are illegal immigrants from adjacent Muslim regions who came after the Anglo-Myanmar War in 1824. However, on the other hand, the Rohingyas and some renowned scholars state that they are descendants of the first Muslim residents of Arakan who came there in or around the 9th century by way of the new emerging trade routes through the Bay of Bengal and the Andaman Sea. This debate forms the basis of today’s problems in Arakan and the mistreatment of Rohingyas, resulting in gross human rights violations by the government and majority groups in Arakan. Continue reading

Amnesty International: Launch of a New Platform for the Promotion of Human Rights in International Justice

Amnesty InternationalAmnesty International has recently launched an advocacy platform, called Amnesty International’s Human Rights in International Justice Project.

The platform seeks to promote the latest efforts by Amnesty International, international and national civil society groups and others to strengthen international justice. It will also provide regular opinion pieces on the latest developments and emerging human rights concerns.

By doing this, Amnesty International hopes to provide:

  • better access for victims to national justice and, if that fails, international justice;
  • stronger national and international laws aimed at ending impunity;
  • human rights compliance by all international justice mechanisms.

In order to access the platform, click here.

To Prevent Enforced Disappearances, Rethink the Justice and Security Equation

By David Tolbert*

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

A 2013 art project for Bassel Khartabil, one of Syria’s leading pro-free speech and democracy activists, who was recently confirmed as having been secretly executed while in detention in a regime prison in 2015. ©Pete Ippel

Nearly every city and village in Syria has a story to tell about enforced disappearances: civilians being snatched off the streets or from their homes by the police, Syrian military or an armed group, never to be heard from again. The victims are usually tortured, killed or enslaved. Their families are left haunted, not knowing if their loved ones are alive or dead.

Today, we are seeing an alarming rise in the incidence of enforced disappearances around the world, particularly in a number of the “Arab Spring” states, such as Syria, Egypt and Yemen, where reaction has triumphed over hope for a rights-based future.

In Syria, we are witnessing a catastrophe the consequences of which will be felt for generations to come. This includes not only millions fleeing their homes, the shredding of the Geneva Conventions and massive criminality by the Assad regime and others, but also the enforced disappearance of over 65,000 people, including entire families and thousands of children.

In Egypt since early 2015, hundreds of Egyptians have vanished at the hands of the state. Secret prisons in southern Yemen, where officials have forcibly disappeared people and ordered continued arbitrary detention, are called “no-return prisons.” And these are just a few of the many places where enforced disappearances are occurring with terrible human consequences.

Enforced disappearance was a phenomenon many thought was a product of the brutal internal conflicts of the 1980s and early 1990s. Tremendous efforts were taken by countries and the international community to address the crime, on a number of fronts. Continue reading

Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call For A Purposive Interpretation of Article 30(2) of the East African Community Treaty

by Dr. Ally Possi*

Introduction

East African Court of JusticeThis post exposes a major obstacle facing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty). Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.

Following a significant level of silence on the stringent rule, this post is vitally important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty. The grounds used to deny to extend the two months’ time window are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch the rigorous time limitation clause. Continue reading

ICC Al-Bashir case: South Africa Failed to Comply but is not Referred to ASP/UNSC

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

On Thursday 6 July 2017, Pre-Trial Chamber II of the International Criminal Court (ICC) found that South Africa failed to comply with its obligations under the Rome Statute in the Omar Al-Bashir case. The former President of Sudan had visited South Africa on 13 June 2015 to attend the 25th Assembly of the African Union.  The South African government then took no steps to arrest Omar Al Bashir, claiming he benefited from immunity as a head of State. In March 2016, the Supreme Court of Appeal of South Africa had ruled the government had shown unlawful conduct “in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir.”

The ICC found that South Africa failed to comply with its obligations by not arresting and surrendering Omar Al-Bashir to the Court while he was on South African territory between 13 and 15 June 2015. The Court considered that immunities did not apply as Sudan was in an analogous situation to those of States Parties to the Statute as a result of the UNSC’s resolution, under Chapter VII of the UN Charter, triggering the Court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court.

However, the Chamber considered that it is not warranted to refer South Africa’s non-compliance to the Assembly of States Parties (ASP) or the Security Council of the United Nations (UNSC). This decision was motivated on the facts that South Africa was the first State Party to seek from the Court a final legal determination on the extent of its obligations to execute a request for arrest and surrender of Omar Al-Bashir and that South Africa’s domestic courts have already found South Africa to be in breach of its obligations under its domestic legal framework.

For the full decision, click here.

ICC Prosecutor Calls for Immediate Arrest of Saif Al-Islam Gaddafi

Saif al IslamThe Prosecutor of the International Criminal Court (ICC) yesterday called on the Libyan authorities and all other states who are in a position to do so, to immediately arrest and surrender Mr. Saif Al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, to the ICC.

She noted that she was aware of the latest media reports alleging that on 9 June 2017, Mr. Gaddafi was released from the custody of the Abu-Bakr al-Siddiq Brigade of the eastern Libyan town of Zintan, where he had been held since November 2011. The Prosecutor stated that her office is currently verifying these reports and is taking all necessary steps to determine Mr Gaddafi’s whereabouts.

The Prosecutor, Ms. Fatou Bensouda, stressed that the arrest warrant issued by the ICC against Mr Gaddafi on 27 June 2011 for the crimes against humanity of murder and persecution, allegedly committed in Libya during the uprising that ousted his father in 2011, remains valid.

According to Ms. Bensouda, the purported amnesty law, under which Mr. Gaddafi has said to been freed, does not relieve Libya of its obligation to immediately arrest and surrender Mr. Gaddafi to the ICC.

In the same statement, the Prosecutor called for the immediate arrest and surrender of Mr Al-Tuhamy Mohamed Khaled, who is also the subject of an ICC arrest warrant in the Libya situation, made public on 24 April 2017.

Mr. Al-Tuhamy is Muammar Gaddafi’s former security chief and is alleged to be responsible for the crimes against humanity of imprisonment, torture, other inhumane acts, and persecution, as well as for the war crimes of torture, cruel treatment and outrages upon personal dignity, committed in Libya in 2011.

Media outlets report that the release of Saif Al-Islam Gaddafi could fuel further instability in the country, which has been under the rule of three different governments since Muammar Gaddafi’s fall in 2011. The UN-backed Tripoli government condemned the release.

In July 2015, Saif al-Islam Gaddafi was sentenced to death in absentia by a court in Tripoli in a mass trial of former Gaddafi government officials. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

Gaddafi’s Son Saif al Islam Released from Prison in Libya

Saif Al-Islam GaddafiSaif al-Islam Gaddafi, the son of fomer Libyan leader Muammar Gaddafi, has been released. He had been in custody since November 2011 in the town of Zintan, in Libya.

The Abu Bakr al-Sadiq Brigade, a militia of former rebels that controls Zintan, where Gaddafi was detained since November 2011, said he was freed under an amnesty law promulgated by the parliament based in the eastern city of Tobruk.

The north African country has rival administrations, with the authorities in the east not recognising the UN-backed government of national accord (GNA) based in the capital.

Gaddafi’s lawyer also said he had been released but would not say which city Saif al-Islam had travelled to for security reasons.

The commander of the Abu Bakr al-Sadiq Brigade was set to release a video statement explaining the details of the release.

Saif al-Islam Gaddafi was captured in 2011 as he was fleeing to neighbouring Niger after opposition fighters seized Tripoli.

He was sentenced to death in absentia by a court in Tripoli in July 2015 in a mass trial of former Gaddafi government officials. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

Saif al-Islam is also wanted by the International Criminal Court in The Hague, which issued an arrest warrant in 2011 on preliminary charges of crimes against humanity, murder and persecution for being part of the inner circle of his father’s regime.