Special Rules of Attribution of Conduct in International Law

Are there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of international law? This is the first article to systematically analyze the notion of special rules of attribution in international law. In particular, it searches for such rules in international humanitarian law, the law on the use of force, and European human rights law. The article argues that, to the extent special rules of attribution exist, they are rare and never uncontroversial. In most situations, putative special rules of attribution can be, and should be, conceptualized differently. It is particularly difficult to justify why rules of attribution should vary depending on the context or particular subject matter, for example, why a special rule of attribution should exist for terrorism but not (say) for genocide. Therefore, we should, to the extent reasonably possible, try to reconcile the various jurisprudential divergences identified in this article with the general attribution framework so as to minimize the incidence of special rules, unless there is a very good reason why such a rule should exist. One such reason could be emerging subject-specific state complicity doctrines, which do require sectoral adjustment, but even these doctrines would in most cases not be attributive in nature

The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life

On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. This article seeks to comprehensively analyze Khashoggi’s killing from the standpoint of the human right to life. It sets out the relevant legal framework, addressing inter alia the issue that Saudi Arabia is not a party to what would otherwise be the most relevant human rights treaty, the International Covenant on Civil and Political Rights. It examines not only the obligations of Saudi Arabia, but also those of Turkey and the United States, in protecting Khashoggi’s right to life from third parties, and ensuring respect through an effective investigation of his killing and mutual cooperation for the purpose of that investigation. It also looks at the extraterritorial scope of these various obligations. Finally, the article examines possible norm conflicts between state obligations under human rights law and their obligations under diplomatic and consular law, such as the inviolability of diplomatic and consular premises, agents, and means of transportation

The end of application of international humanitarian law

This article provides a systematic overview of the rules governing the end of application of international humanitarian law, or the law of armed conflict. It articulates the general principle that unless there is a good reason of text, principle or policy that warrants an exception, the application of IHL will cease once the conditions that triggered its application in the first place are no longer met. For IHL to apply, its distinct thresholds of application – international armed conflict, belligerent occupation, and non-international armed conflict – must continue to be satisfied at any given point in time. The article also examines situations in which a departure from the general rule is warranted, as well as the factors that need to be taken into account in determining the end of each type of armed conflict. In doing so, the article analyzes terminating processes and events, which generally end the application of IHL (but not necessarily all of it), and transformative processes and events, which end the application of one IHL sub-regime but immediately engage another. Finally, the article briefly looks at the (putative) armed conflict between the US and Al-Qaeda and its seemingly imminent end

Intelligence Sharing in Multinational Military Operations and Complicity under International Law

This article examines the international legal framework applicable to intelligence sharing in multinational military operations, with a particular focus on complicity scenarios. It first provides a theoretical overview of the role of fault in complicity, of how intent and knowledge can be conceptualized, and of the attribution of fault to States. It then looks in detail at the rule codified in Article 16 of the International Law Commission’s Articles on State Responsibility, and argues that this rule is best understood as employing multiple modes of fault (direct and indirect intent and wilful blindness). The article also argues that international humanitarian law (IHL) and international human rights law (IHRL) possess their own complicity rules. These regime-specific rules can apply to State assistance to non-state actors and can employ more relaxed modes of fault than Article 16. A State could thus be responsible for facilitating the commission of serious violations of IHL and IHRL through the sharing of intelligence or the provision of other aid if it consciously disregarded a risk that its partner would commit such violations with the aid provided. The article then looks at the role that mitigation measures employed by the assisting State, such as diplomatic assurances, have in assessing its responsibility for complicity, and at whether risks generated by the provision of assistance can lawfully be balanced against the risks generated by suspending assistance. Finally, the article examines two basic scenarios – that of sharing intelligence that facilitates a partner’s wrongful act, and that of receiving unlawfully obtained or shared intelligence

Courting failure: when are international criminal courts likely to be believed by local audiences?

The primary role of international criminal courts and tribunals is to punish those deserving of punishment. But beyond dispensing individualized justice, the question still remains whether such tribunals can also help deeply traumatized and divided societies heal on a more fundamental level. To do that, the factual accounts these tribunals produce – about the guilt of specific individuals for specific crimes, but also about the systemic nature and causes of these crimes – at least at some point need to be accepted by their local audiences. Crimes need to be believed to be remedied. Some courts, like the International Criminal Tribunal for the Former Yugoslavia, have failed in this broader task. But is every international criminal court or tribunal similarly doomed to fail? Can we at least with some measure of reliability predict when such failure is likely? Drawing on research in social psychology and on a series of opinion polls in the former Yugoslavia, as well as on an analysis of the successes and failures of the Nuremberg, Tokyo, Rwanda, Sierra Leone and Cambodia tribunals, this chapter puts forward such a general predictive theory. The chapter thus argues that whether an international criminal tribunal and its account of responsibility for committed atrocities will be trusted by local populations depends little on the quality of the tribunal’s work, the fairness of its procedures, or the scope of its outreach programme. It depends mostly on whether the tribunal’s outputs – decisions on whom to prosecute, convict, or acquit – align with what these populations want to hear in their particular context and at that particular time. Psychological mechanisms of identity-protective reasoning can easily lead to the widespread rejection of the relevant tribunal and its factual account. Whether this will in fact happen depends largely on one variable – the reaction of dominant local political, media and intellectual elites. The likelihood and potency of an adverse reaction can, in turn, be predicted by reference to four factors: (1) the degree of continuing group cohesion and polarization; (2) the degree of elite continuity in terms of both personnel and ideology; (3) the degree of authoritarianism in the relevant society; and, most importantly (4) the degree of threat that the work of the tribunal is perceived to pose to the power and influence of these elites