A qualified defense of American drone attacks in northwest Pakistan under international humanitarian law

Since the terrorist attacks of September 11, 2001, international law has had to grapple with the fundamental challenges that large-scale violence carried out by non-State actors poses to the traditional inter- State orientation of international law. Questions related to the “adequacy” and “effectiveness” of international humanitarian law, international human rights law and the law related to the use of force have been particularly pronounced. This paper focuses on the international humanitarian law implications of American drone attacks in northwest Pakistan. A highly-advanced modality of modern warfare, armed drones highlight the possibilities, problems, prospects and pitfalls of high-tech warfare. How is the battlefield to be defined and delineated geographically and temporally? Who can be targeted, and by whom? Ultimately, this paper concludes that American drone attacks in northwest Pakistan are not unlawful as such under international humanitarian law, though, like any tactical decision in the context of asymmetric warfare, they should be continuously and closely monitored according to the dictates of law with sensitivity to facts on the ground.

The Kurdish conflict: international humanitarian law and post-conflict mechanisms

This book is highly topical considering the recent resurgence of violence by the PKK, the incursions into Northern Iraq by the Turkish army and security forces and Turkey’s EU accession negotiations. Turkey has become an increasingly important player in Middle Eastern geopolitics. More than two decades of serious conflict in Turkey are proving to be a barrier to improved relations between Turkey and the EU. This book is the first study to address fully the legal and political dimensions of the conflict, and their impact on mechanisms for conflict resolution in the region, offering a scholarly exploration of a debate that is often politically and emotionally highly charged. Kerim Yildiz and Susan Breau look at the practical application of the law of armed conflicts to the ongoing situation in Turkey and Northern Iraq. The application of the law in this region also means addressing larger questions in international law, global politics and conflict resolution. Examples include belligerency in international law, whether the ‘war on terror’ has resulted in changes to the law of armed conflict and terrorism and conflict resolution. The Kurdish Conflict explores the practical possibilities of conflict resolution in the region, examining the political dynamics of the region, and suggesting where lessons can be drawn from other peace processes, such as in Northern Ireland. This book will be of great value to policy-makers, regional experts, and others interested in international humanitarian law and conflict resolution.

Non-Refoulement between 'Common Article 1' and 'Common Article 3'

This article considers whether, in the context of armed conflicts, certain non-refoulement obligations of non-belligerent States can be derived from the 1949 Geneva Conventions. According to Common Article 1 (CA1) thereof, all High Contracting Parties (HCPs) undertake to ‘respect and to ensure respect’ for the four conventions ‘in all circumstances’. It is contended that CA1 applies both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs). In turn, it is suggested that Common Article 3 (CA3) which regulates conduct in NIACs serves as a ‘minimum yardstick’ also applicable in IACs. It is widely (though not uniformly) acknowledged that the undertaking to ‘ensure respect’ in a given armed conflict extends to HCPs that are not parties to it; nevertheless, the precise scope of this undertaking is subject to scholarly debate. This article concerns situations where, in the course of an (international or non-international) armed conflict, persons ’taking no active part in hostilities’ flee from States where violations of CA3 are (likely to be) occurring to a non-belligerent State. Based on the undertaking in CA1, the central claim of this article is that, as long as risk of exposure to these violations persists, persons should not be refouled notwithstanding possible assessment of whether they qualify as refugees based on the 1951 Refugee Convention definition, or could be eligible for complementary or subsidiary forms of protection that are regulated in regional arrangements. The analysis does not affect the explicit protection from refoulement that the Fourth Geneva Convention accords to ‘protected persons’ (as defined in Article 4 thereof). It is submitted that CA1 should be read in tandem with other obligations of non-belligerent States under the 1949 Geneva Conventions. Most pertinently, all HCPs are required to take specific measures to repress ‘grave breaches’ and to take measures necessary for the suppression of all acts contrary to the 1949 Geneva Conventions other than the grave breaches. A HCP that is capable of protecting displaced persons from exposure to risks of violations of CA3 and nonetheless refoules them to face such risks is arguably failing to take lawful measures at its disposal in order to suppress acts contrary to the conventions and, consequently, fails to ‘ensure respect’ for the conventions. KEYWORDS Non-refoulement; International Armed Conflict; Non-International Armed Conflict; Common Article 1; Common Article 3

The international law implications of the Turkish/Kurdish conflict

This article considers the threaties and customs governing armed conflict in the context of the long standing insurgency in southeast Turkey. The first part of the article analyzes the existing treaty and customary law concerning the threshold of an armed conflict and concludes that the insurgency in Southeast Turkey existing since 1984 rises to the level of an armed conflict based on criteria identified both in treaty and customary international law. The next consideration is the classification of this conflict and this part concludes that this situation is a non-international armed conflict due to lack of involvement of forces of another country. Finally, this article considers international humanitarian law applicable to this non-international armed conflict and reveals that as a result of the monumental International Committee of the Red Cross customary humanitarian law study, particularly with respect to the law of targeting, that the rules applicable to international and non-international armed conflict have never been closer.

Second Strike and you are (finally) out? The Quashing of the Prevention of Infiltration Law (Amendment no. 4)

The blog-post critically analyses the Israeli Supreme Court judgment (HCJ 8425/13 Anon v. Knesset et al) quashing the Prevention of Infiltration Law (Amendment no. 4), offering themes of comparative constitutional interest.

Regulating non-international armed conflicts: a review essay of 'The Law of Non-International Armed Conflict' by Sandesh Sivakumaran

This review essay engages with Sandesh Sivakumaran’s book The Law of Non-International Armed Conflict, exploring its significance both in international humanitarian law and international law more generally.

The role of competition and state aid policy in financial and monetary law

During the financial crisis, companies and lenders found themselves in distressed situations. Competition authorities across the globe had to deal with controversial issues such as the application of the failing firm defence in merger transactions as well as assessment of emergency aid granted by states. This article considers competition policy in periods of crisis, in particular the failing firm defence in merger control and its state aid policy.