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The UK and the right to life: Some preliminary remarks on the UK Government’s observations on the Draft General Comment no 36

In July 2017 the UN Human Rights Committee finalised the first reading of its Draft General Comment no 36 on article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). All stakeholders, including Member States, other UN and regional human rights mechanisms, National Human Rights Institutions, NGOs, research institutions, and academics were invited to provide their observations by 6 October 2017.  In November 2017, the UN Human rights Committee started the second reading of its Draft General Comment. This post aims to provide some preliminary remarks on the UK Government submissions, which should be interpreted while bearing in mind a significant difference between the UK position and the Draft Comment: according to the former, indeed, there is no hierarchical relationship among rights, and the right to life is not the ‘supreme’ right among all others, as it is, conversely, for the latter.[1] This post will focus on three specific areas of concern for the UK: the desirability of an international treaty banning any Lethal Autonomous Weapons Systems (LAWS), the relationship between the regimes of international human rights and international humanitarian law, the linkage between the right to life and any act of aggression.

 

On the ban of any Lethal Autonomous Weapons Systems (LAWS)

 

Starting from the assumption that in the development of new kind of weapons Sates should always consider the possible implications of such weapons for the right to life, the UN Human Rights Committee, at paragraph 12 of its Draft General Comment, holds that ‘the development for use in military operations of new lethal autonomous robotics lacking in human compassion and judgement, raises difficult legal and ethical questions concerning the right to life, including questions relating to legal responsibility for their use’. The Committee therefore concludes that this kind of weapons should not be developed or put in operation; neither in time of war or peace. The UK Government, on the contrary, considers that since it is unclear whether these weapons would ever be developed, it would be pointless to have an international agreement banning them pre-emptively.[2] Thus, the UK ‘strongly urges’ to delete the part relating to the need to avoid the development and/or ban of any LAWS. Yet, this conclusion seems to lie more on the non-existence of such weapons, which furthermore still lack of a definition, than on their legality under international law. In this respect, the UK aligns its positions to the other EU member states. As Veronique Caruana has pointed out, however, in the future we might witness «the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”». Considering that the issue has been broadly debated among governments, scholars,[3] and NGOs, the prospect of developing such weapons seems in fact to be a concrete possibility.

 

On the relationship between International Humanitarian Law and Human Rights Law

According to paragraph 67 of the Draft General Comment, the Covenant as a whole continues to apply in time of armed conflict,[4] as the two regimes of Human Rights Law and International Humanitarian Law (IHL) are complementary, rather than mutually exclusive. The UN Human Rights Committee concludes that during an armed conflict States have therefore an obligation to disclose, inter alia, ‘whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards.’[5] In respect of both these points the UK Government submits that International Humanitarian Law is lex specialis applicable during an armed conflict,[6] and under this regime there is no rule imposing upon states an obligation to consider whether a non-lethal means was available.[7] Moreover, while it is admitted that States have an obligation to investigate breaches of IHL in accordance to international legal standards, they reject the submission that in time of an armed conflict such obligation to investigate would also apply to any violation of article 6 ICCPR.[8] This would be somehow equal to interpret the two regimes of International Humanitarian Law and Human Rights Law as mutually exclusive, and might have serious implications when it comes to the implementation of the principles of proportionality and necessity, which are much more stringent within the context of the International Human Rights regime.[9] This would also place the UK far from the interpretation given by the European Court of Human Rights (ECtHR) of the positive procedural obligations stemming from article 2 (Right to life) of the European Convention of Human Rights (ECHR).[10] The ECtHR has indeed ‘held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict’.[11] In the opinion of the Strasbourg Court these obligations include a duty to carry out an effective investigation,[12] which might comprise criminal procedures, but also inquiries on state responsibility. [13] This might apply to cases of death of civilians as well as soldiers,[14] and can also require the investigators to ‘establish basic facts about the use of indiscriminate weapons’, when the former were ‘crucial for the assessment of the causal link between their use and the casualties’.[15] The Court has in fact found that the ‘use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary’. [16]

 

 

On the implications for the right to life as a result of acts of aggression

 

The last two paragraphs of the Draft Comment no 36 are dedicated to the implications for the right to life in case of war, and even more specifically, in the event of the commission of any act of aggression contrary to the UN Charter. Paragraph 71, notably provides as follows: ‘States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant. Moreover, States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.’

The UK, at paragraph 34 of its observations, comments by stating: ‘We are rather surprised at the inclusion of paragraphs 70 and 71; these appear to be better suited to an aspirational document rather than a General Comment. We do not consider that the content is helpful, nor that it is within the Committee’s mandate.’ Thus, in the UK Government’s opinion the loss of lives resulting from the usage of an unlawful means, that is, in this specific case, an illegal war or an act of aggression, would not fall within the jurisdiction of the UN Human Rights Committee. It is however unclear where this limitation should be inferred from. In Europe, the Strasbourg Court has kept holding that article 2 ECHR (right to life) cannot be subject to any derogation, under article 15 ECHR, if not with regard to ‘lawful acts of war’.[17] A contrario, one might argue that all other means should be considered as unlawful and cannot find any justification under the ECHR. Moreover, it rests to be shown how, under which circumstances and towards whom such paragraphs might ever end up being in any way ‘unhelpful’.

 

Conclusion

 

The UN Human Rights Committee is currently at its second reading of the Draft General Comment no 36 on article 6 ICCPR (right to life). Between its first and second reading, the Committee invited all stakeholders to submit their observations. This post focused on the UK position on article 6 ICCPR, which significantly departs from the Draft Comment in many aspects. First, the UK while aligning itself with the position taken by all other EU member states, differs from the UN Committee’s Draft General Comment, when the Government considers it pointless to ban or refrain from developing any LAWS. In the opinion of the UK Government, in fact, these weapons have not been developed yet and a significant amount of uncertainty surrounds their future characteristics, effects and even definition. Second, while the UN Human Rights Committee considers the Covenant to apply during an armed conflict, the UK sees the regime of International Humanitarian Law as lex specialis and deems there exists no positive obligation to investigate any violation of article 6 ICCPR. Nor do they think they have any obligation to disclose whether any non-lethal means was available. This might have huge implications on the implementation of the principles of necessity and proportionality, which refer to different standards, depending on which regime, i.e., Human Rights Law or International Humanitarian Law, is indeed applicable. In this respect, the UK would put itself far from the stance of the ECtHR’s case law. Third, the UK considers the UN Human Rights Committee went beyond its jurisdictions, when it inserted paragraphs 70-71 in the Draft General Comment. These paragraphs concern the casual relation between any unlawful armed conflicts, or more specifically any acts of aggression contrary to the UN Charter, and an automatic violation of article 6 ICCPR. However, when it comes to any possible implications for the right to life, it is unclear where the UK could infer any limitation of the UN Human Rights Committee’s ratione materiae jurisdiction. Moreover, it rests to be shown how, and especially under which circumstances and towards whom, such paragraphs could be in any way ‘unhelpful’. In sum, the UK position on the right to life differs significantly from the UN Committee, and in many occasions this would be equal to a less comprehensive protection of the individuals’ right to life. This might find an explanation in the UK vision of human rights, which according to the Government’s observations relating to the Draft General Comment no 36, would not have any hierarchical relationship, so that the right to life would not be seen as ‘the supreme’ among all other rights any more.

[1] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 5. Cf Human Rights Committee, ‘General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (Revised draft prepared by the Rapporteur) available at < http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> visited on 5 December 2017. Cf Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 599.

[2] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 12.

[3] See, e.g., Nehal Bhuta, Claus Kreβ, Autonomous Weapons Systems: Law, Ethics, Policy (CUP 2016).

[4] Cf The relevant ECtHR’s case law. See William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 154-55.

[5] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 67. Cf William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 156-58.

[6] Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para. 106. See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) 168, para. 216.

[7] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 33.

[8] Ibid.

[9] As for the ‘absolute necessity’ requirement according to the ECtHR, see Case of McCann and Others v. The United Kingdom App no 18984/91 (ECHR, 27 September 1995) at 149; Case of Andreou v. Turkey App no 45653/99 (ECHR, 27 October 2009) at 55; Case of Putintseva v. Russia App no 33498/04 (ECHR, 10 May 2012) at 69. As for the proportionality requirement as developed by the ECtHR, see Case of Wasilewska and Kałucka v. Poland App nos 28975/04 and 33406/04 (ECHR, 23 February 2010) at 56-57; Case of Finogenov and Others v. Russia App nos 18299/03 and 27311/03 (ECHR, 4 June 2012) at 236. See also Conor Foley, UN Peacekeeping Operations and the Protection of Civilians: Saving Succeeding Generations (CUP 2017) 183.

[10] William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 139. Cf Case of the “Mapiripán Massacre” v. Colombia (Inter-American Court of Human Rights, 15 September 2005) at 238.

[11] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 164;Case of Mocanu and Others v. Romania App nos 10865/09, 45886/07 and 32431/08 (ECHR, 17 September 2014) at 319. See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 184.

[12] See, for instance, See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 198.

[13] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 174.

[14] Smith v Secretary of State for Defence [2010] UKSC 29, at 70-72.

[15] Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 527.

[16] ibid at 609.

[17] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 162.

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The US and Information and Telecommunications in the Context of International Security: Which implications for the ius ad bellum?

INTRODUCTION

The issue of information security has been the subject of study of the First Committee of the UN General Assembly since 1998. This study originated in a proposal submitted to the General Assembly by the Russian Federation , which later became the consensus Resolution 53/70, inviting all States to inform the Secretary-General of their views about, inter alia, the ‘[a]dvisability of developing international principles that would enhance the security of global information and telecommunications systems and help to combat information terrorism and criminality’.[1] Since then, four Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who is asked to report to the General Assembly. A fifth group has been established in December 2015, being expected to meet for the first time in August 2016 and submit its report in 2017.

In October 2014 the US submitted before the fourth GEEs a position paper, which was not, however, completely embraced by the other experts in their 2015 final report. This paper is in any case relevant as it is possible to derive from it important conclusions regarding the US opinio iuris on some aspects of the ius ad bellum, in particular the law of self-defence. This post aims at highlighting such implications and is structured as follows. First, I will analyse the issue of Information and Telecommunications in the Context of International Security as it has been dealt with within the UN; then, I will focus on the US position paper. I will conclude that, when it comes to the notion of ‘armed attack,’ the US Administration might have a broader understanding than the international community as a whole, to such an extent as to include any violation of article 2(4) UN Charter.

 

Information and Telecommunications in the Context of International Security at the UN

In line with its predecessors’ mandate, the fifth GGEs is supposed ‘to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them and how international law applies to the use of information and communications technologies by States’.[2] Since both the 2013 and 2015 reports consistently affirmed that international law, in particular the UN Charter, is applicable to the cyber-sphere, and that the latter applies ‘in its entirety’,[3] it is unclear why it could still remain to be seen how the Charter would apply. In fact, the UN Charter and all relevant UN instruments should provide sufficient guidance in this respect.

The reasons behind this uncertainty seems to be connected with a political tension within the GEEs. Russia, China, Pakistan, Malaysia and Belarus have in fact strongly opposed the US proposal of making an express reference to article 51 UN Charter, namely, the provision regulating states’ inherent right to use force on the grounds of self-defence to repel or prevent an actual or imminent attack.[4] They argued that the acceptance of this proposal would permit the US to affirm its supremacy in the cyberspace, which would then become another militarized area.

The report finally adopted does not mention article 51 UN Charter, but identifies

‘as of central importance the commitments of States to the following principles of the Charter and other international law: sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.’[5]

Moreover, while recognizing the need for further study in this respect, the report notes ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter.’ [6] The reference here is clearly to the right to use force in self-defence, without explicitly mentioning it.

The US and the notion of armed attack

Leaving aside any consideration with regard to what the next GGEs could further establish, what is interesting here is the US legal position on the matter. Indeed, it might help clarifying the Administration’s stand on some aspects of the ius ad bellum as they are provided by the UN Charter, the corresponding norms of customary law, and all other relevant instruments adopted within the UN, including the UN GA Res 3314 (1974).

This Resolution, adopted by consensus by the General Assembly in 1974, provided a definition of aggression, which -at least in some of its parts- has been considered reflective of customary law by the International Court of Justice.[7] Its article 3 also provides a non-exhaustive list of acts that constitute aggression. At the 2010 Kampala Review Conference, States Parties to the International Criminal Court adopted a consensus definition of the crime of aggression which makes an explicit reference to the Resolution and incorporates its article 3. The US has since then kept consistently opposing the Kampala amendment for a number of reasons, including its reference to Resolution 3314.

While not all acts of aggression would also constitute an ‘armed attack’ within the meaning of article 51 of UN Charter, the latter is no doubt both an act of aggression and a serious violation of article 2(4) UN Charter, which requires states to refrain ‘in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.[8] The force to which the provision makes reference has been originally conceived so as to encompass only military episodes.[9]

The US position paper submitted in 2014 broadens the range of situations in which a state may legally resort to force in self-defence. First, the paper expands the definition of armed attack, and therefore indirectly enlarged the list of acts of aggression, by including some cyber activities. In particular,

‘States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force / armed attack.’[10]

Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’,[11] and, consistently with what the US has been affirming since the 9/11 terrorist attacks,[12] can be committed by states or non-state actors.

Second, the position paper equated an armed attack to a generic ‘use of force’ (borrowing this language from article 2(4) UN Charter), without specifying the gravity or seriousness thereof. This means, therefore, that every single violation of article 2(4) UN Charter would constitute an armed attack and, as a consequence, an act of aggression.

Last but not least, in relation to those cases of self-defence fought against non-state actors and without the consent of the so-called territorial state, the US position paper reaffirmed what has been claimed over the last decades with regard to the US war against different terrorist organizations, namely, that an alleged victim State may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack.[13] This would also apply to the case of an ‘armed’ attack launched in or through cyberspace. However, it was added,

‘[i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as “unwilling”.’[14]

This statement constitutes further clarification with respect to previous practice and could no doubt apply within the context of any US pre-emptive use of force against terrorist groups based in a state considered to be unwilling because it is ‘publicly silent’ when facing the risk of a military intervention justified on such grounds.

CONCLUSION

Although not wholly embraced by the fourth UN GEEs’s report adopted, the US position paper submitted to the Group in 2014 might reflect the Administration’s opinio iuris in relation to some spheres of the law of self-defence. On the one hand, as consistently claimed by the US since the 9/11 terrorist attacks, an armed attack within the meaning of article 51 UN Charter may be committed by either state or non-state actors. Moreover, an alleged victim state could act in self-defence also against a non-state actor, and even in the absence of the territorial state’s express consent.

On the other hand, the US position paper suggested that the US Administration could consider as armed attack (which, by its nature, is also an act of aggression) any violation of article 2(4) UN Charter. It furthermore provided a broader definition of armed attack so as to include cyber activities that do not imply any kinetic force. These two aspects, if upheld by the group, might well contribute to the modification of both the relevant provisions of the UN Charter and the correspondent customary norms.

[1] UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70, para 2(c) [emphasis added].

[2] UNGA Res 70/237 (23 December 2015) UN Doc A/RES/70/2376, para. 5 [emphasis added].

[3] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 paras. 24 and 28 (c). Cf UNGA 68/98 (24 June 2013) UN Doc A/68/98 para. 19.

[4] US Secretary of States, Daniel Webster, Letter to the British Envoy Extraordinary and Minister

Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze, Malgosia Fitzmaurice,

Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247-1255.

[5] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 26 [emphasis added].

[6] ibid. para. 28 (c) [emphasis added].

[7] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 195.

[8] Article 2 (4) UN Charter [emphasis added].

[9] See, e.g., US Representative to the Sixth Committee of the UN General Assembly, John S Cooper,

Statement on 25 November 1968 (1080th meeting) in OR of the UN General Assembly (Twentythird

session). Sixth Committee. Legal questions. Summary records of meeting (1968).

[10] Ibid.

[11] Ibid.

[12] See US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946.

[13] See Yoram Dinstein, War, Aggression and Self -Defence (5th ed., Cambridge University Press 2011) 275.

[14] United States paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014).

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