THE CORE

We've moved

2008-01-25T01:31:00.000+01:00

I am happy to report that our blogging hiatus is finally over.

However, we won't be updating this site anymore - Tobias, Nicki and I are now part of the new team of the Invisible College.

We hope to see you there.

The ICJ Tackles the Bosnian Genocide: Part 1a: Some More Thoughts on Jurisdiction

2007-06-23T18:44:00.000+02:00

Yes, I know I have already written a fair bit about the jurisdiction-related aspects of the Genocide case, but recent research, and a few ideas resulting from that, leads me to add a few short comments on the notion of res judicata applied by the Court (the judgment is now here, the Court’s website having been much improved since my original post).

It will be recalled that the Court treated the 1996 judgment as deciding not only that the Court had jurisdiction under Article 36 of the Statute, but also that the parties had a right of access to the Court under Article 35 of the Statute.
This may seem unremarkable – or at any rate, not nearly as remarkable as some other aspects of the 2007 decision on jurisdiction. After all, the parties’ right of access to the Court is of the first importance: where there is no access, there can be no jurisdiction stricto sensu. The latter question would not even arise. It is therefore hardly beyond the bounds of reason to say that a finding of jurisdiction in the sense of Article 36 implicitly makes a finding on access within the meaning of Article 35 (and Article 34(1), as well).

The truly exceptional holding in the jurisdiction part of the merits judgment is that the doctrine of res judicata can apply even to such an implicit finding, as opposed to one that the Court has clearly expressed and for which it has given reasons.
It is this part of the judgment on jurisdiction that has come in for very serious criticism, not least from the dissenters within the Court itself (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma, passim). Also, one of my lecturers at the University of Edinburgh has commented on the whole merits judgment only by saying that on the issue of res judicata, ‘the Court has got it badly wrong.’
For what it’s worth, I have already argued that the Court’s conception of res judicata may not be as wrong as it might seem. I acknowledge, however, that this conception is a novel one, and rather goes against one of the central tenets of the doctrine, as it had been understood until now, namely the element by which res judicata effect would attach only to the actual content of a judgment (see the Joint Dissenting Opinion, supra, paras. 3-4, and also the Opinion of Advocate-General Léger in Köbler v. Republic of Austria (ECJ), para. 101).

I now derive some support for my – still somewhat cautious – propositions from the common law, which suggests that the finality of a judgment may not actually be limited to what the judgment clearly says. This in turn would suggest that the dissenters in the ICJ were wrong to paint their supposed limitation of res judicata effect as a general principle, and conversely, that the majority of the Court did not so much extend the concept of res judicata, but only applied a broader notion that had existed previously.

In English law, the leading case on the finality of judgments is Henderson v. Henderson (1843) 3 Hare 100, in which Sir James Wigram V-C said at pp. 114-115 (the case is not online, but the quote appears at para. 55 of Aldi Stores Ltd. v. WSP Group Plc and Others [2007] EWHC 55 (TCC):

‘In trying this question, I believe that I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ (My emphasis)

A much later court said this about the case: ‘The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well-known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first instance but failed to raise.’ (Barrow v. Bankside Agency Ltd. [1996] 1 WLR 257, 260 [CA, per Sir Thomas Bingham MR])
The rule is therefore ‘not concerned with cases where a court has decided the matter; but rather cases where the court has not decided the matter, but where in a (usually late) succeeding action someone wants to bring a claim which should have been brought, if at all, in earlier concluded proceedings.’ (Manson v. Vooght [1999] BPIR 376, 387 [CA, per May LJ])

The same principles are recognised in the legal orders of the Republic of Ireland (Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345; Carroll v. Ryan [2003] IESC 1, [2003] 1 IR 309; A (A) v. The Medical Council [2003] IESC 70, [2003] 4 IR 302, 315-317; Law Society of Ireland v. Malocco [2005] IESC 5; Mitchell v. Ireland [2007] IESC 11) and of Scotland (British Airways Plc v. Employment Appeal Tribunal [2001] IRLR 157, paras. 4-8; Clarke v. Fennoscandia Ltd. 2005 SCLR 322, para. 40).

To be sure, the rule in Henderson v. Henderson is now accepted as relating not to res judicata in the strict sense of the word, but to express a separate rule of abuse of process: a party to case A would, in seeking in a case B to relitigate case A or to litigate anew arguments which he could have brought forward in case A, abuse the process of the court in case B, and case B would therefore be dismissed. (See Johnson v. Gore Wood [2002] 2 AC 1, 31 [HL, per Lord Bingham of Cornhill]; Barrow, supra, ibid.; Manson, supra, ibid.; Bradford and Bingley Building Society v. Seddon [1999] 1 WLR 1482, 1490 [CA, per Auld LJ])
However, nothing turns on the description of the rule as either an ‘extended application of the res judicata doctrine’ (C (A Minor) v. Hackney London Borough Council [1996] 1 WLR 789, 796 [CA, per Simon Brown LJ]) or as something else; indeed, the Supreme Court of Ireland, in A (A), supra, at p. 315, describes the discussion on this as merely a matter of ‘taxonomy’. As for the material content of the rule, the House of Lords has explained as follows:
‘But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from [res judicata], has much in common with [it]. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Johnson v. Gore Wood, supra, ibid.)
In speaking of the ‘finality in litigation’, the House cannot have meant the finality of actual judicial findings, because in Henderson v. Henderson cases, there are no such findings. It must therefore refer to the finality of the earlier case in the sense that the first hearing on a general question (e.g. liability, or jurisdiction) should also be the only, and hence the last, or final, one.

It may be argued that the same reasoning is appropriate in the procedural law of the ICJ. Certainly, it is an abuse of (the Latin) language to describe a matter that has not been adjudicated upon as a res judicata (an adjudicated matter). But the rule in Henderson v. Henderson, whatever its present description at common law, is also based on the fundamental interest of the law in the finality of judgments, and it should be recalled that it is this finality that Article 60 of the ICJ’s Statute enshrines, not the doctrine of res judicata in those terms (which are only in this context more specific than the ‘finality’ formulation).
This is not to say that the ICJ has adopted the rule of Henderson v. Henderson in the Genocide case; there is no indication that the ICJ has left the domain of the doctrine of res judicata and entered the field of some form of ‘abuse of process’ jurisdiction (for which there are only a few hints in ICJ case-law). Instead, the Court has failed to make any argument at all as to why the doctrine of res judicata should now extend to implicit holdings; the reasoning that the Court did deploy was exclusively directed at the anterior question whether there had been any implicit holding on the issue of access in the 1996 judgment.
Of course, that question would not strictly have arisen on the Henderson v. Henderson approach, which expressly applies to questions that were not decided. Nonetheless, Henderson v. Henderson requires an exercise not dissimilar to that conducted by the Court, to find whether the issue sought to be presented was one that, while not addressed squarely in the earlier case, ‘properly belonged to the subject of litigation’ of that case (to borrow a phrase from Henderson v. Henderson). For instance, in the Genocide case, the issue of access would not have ‘properly belonged to the subject of litigation’ if the jurisdiction stage had not encompassed also the issue under Article 35 of the Statute.
What I do seek to argue first and foremost is that the rule in Henderson v. Henderson shows that the reasons behind the doctrine of res judicata are capable of supporting an application of res judicata concepts outside the confines of the express holding of the earlier judgment. This being so, and the fact being recognised in several common law jurisdictions, it may be permissible to extend the concept of res judicata itself, as it applies in international procedural law. Indeed, the suggestion that the doctrine of res judicata generally and in every legal order applies only to actually decided matters appears to be correct, as regards the common law, only as a matter of legal language; after all, the rule in Henderson v. Henderson practically extends the concept of res judicata, while using another name for it (that of ‘abuse of process’).

The application of such an extended concept of res judicata (under whatever name) may, however, be somewhat more difficult than that of the bare concept of res judicata as applicable to matters that have actually been argued and decided.
This is because the approach exemplified by Henderson v. Henderson does not merely prevent the re-litigation of issues that have been presented and decided before. It prevents the first litigation of issues that only could have been presented earlier, and have never been decided. (Johnson v. Gore Wood, supra, at p. 59 [per Lord Millett]) An overly zealous application of the rule is therefore liable to exclude a ‘genuine subject of litigation.’ (ibid., quoting Brisbane City Council v. Attorney-General for Queensland [1979] AC 411, 425 [PC, per Lord Wilberforce])
That is why the test of the rule in Henderson v. Henderson in English law, is not merely whether the issue presented could have been argued in the earlier case (i.e. whether it ‘properly belonged to the subject of litigation’ of that case), but whether it ‘could and should’ have been (Divine-Bortey v. Brent London Borough Council [1998] ICR 886, 888 [CA, per Simon Brown LJ]; Manson, supra, at 388; my emphasis). There are many judicial illustrations of this, but there are no hard and fast rules. The judge faced with the second case is to form a ‘broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.’ (Johnson v. Gore Wood, supra, at 31) This may, but need not mean that ‘[t]he bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (…) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Ibid.)
This ‘should’ part of the test would not be easy to apply in the Genocide case. The Federal Republic of Yugoslavia (as the respondent was then called) chose in 1996 not to plead the issue of its own access to the Court because its political position, expressed in many fora, was that it remained a member of the United Nations as the continuation of the old Yugoslavia (the SFRY). Requesting the Court to dismiss the case under Article 35 of the Statute would have been to abandon that argument. Based on what we know today, it would have been possible to present the point as a mere question, for resolution by the Court proprio motu, and without taking a firm position on it. But this power in and duty on the Court to examine proprio motu the issue of the parties’ access to the Court was only stated on 15 December 2004, in the Legality of Use of Force cases (see the case against Belgium here, at para. 36). That being so, it is difficult to argue that, in this instance, the sovereign interest of Yugoslavia in maintaining its position on its own identity should take a back seat to the Court’s interest in being able to decide all issues relevant to the jurisdiction stage in one go (i.e. in 1996).
But it is by no means certain that an acceptance of the extension of res judicata effect exemplified by the rule in Henderson v. Henderson would have to include the precise test developed at common law. Indeed, this would almost certainly be going too far, as it cannot seriously be argued that the Court should defer to the authority of English (and Irish and Scottish) judges. A cautious application of the doctrine is possible even without the specific limitations of the formula ‘could and should’. In particular, the interest in the finality of the first judgment, in which the new issue was first relevant, would seem to support the extension of res judicata effect even without any additional elements.
Applied to the Genocide case, this extension would mean that Yugoslavia should have argued the issue of access already in 1996, and having failed to do so must face the consequence of the argument being unavailable to it later. The lesson then is to deploy at the jurisdiction stage everything that has a bearing on jurisdiction.

I, for one, can see no objection to such a course of action. I find it at the very least arguable that the Court’s extension of the concept of res judicata is neither unprincipled, nor even without precedent. It is almost certainly incorrect that res judicata was, before the Court’s judgment was delivered, universally understood as available only in respect of express holdings; the citations I have given to the common law are intended to show that at least one of the main legal systems of the world goes considerably further in maintaining the finality of the judgments of its courts. I find nothing wrong with the ICJ taking a similar line.

Going on hiatus

2007-04-21T20:43:00.000+02:00

As our loyal readers will have noticed, during the last weeks/months, we haven't had the time to blog as often as we would have liked to. It's not that there aren't interesting things to blog about, it's simply that we all don't have the time/energy, what with dissertations to write etc.
As we don't really see that changing for a couple of months at least, we decided to make it an "official" blog hiatus. We might come back for a post or two to finish those "Part 1 of X"-series, but in general, don't expect much news on this blog for the next months. (Unlike, you know, those wild last few months...)

The ICJ Tackles the Bosnian Genocide: Part 1: Jurisdiction

2007-02-27T00:54:00.000+01:00

As the international legal blogosphere has noted elsewhere, the International Court of Justice has today delivered its long-awaited judgment in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro). I now propose to join the ranks of bloggers expressing their opinions on the case. I realise that the case is somewhat beyond the specialisation of this blog, but given the importance of the case, I feel it right to deviate. Readers are, of course, free to disagree…
While the actual subject-matter of the proceedings, and the merits of today’s judgment, deal with questions close to my fellow blogger Björn’s heart, i.e. genocide and thus international criminal law, I will compound my deviation from the general subject-matter of this site by going into the procedural issues dealt with by the Court. This will form Part 1 of my comments on the case, to be followed by Part 2 on the merits.

As I have sought to explain in a lengthy earlier post (without much in the way of prophecy, as it turns out), the Court faced a few problems relating to its jurisdiction to decide the case. These resulted from the difficult position of the former Yugoslavia vis-à-vis the United Nations from 1992 until 2000, and more particularly from the Court’s own prior pronouncements on the question of whether the State had been a member of the UN or not.
Thus, the Court had decided in 1996 that it had jurisdiction to hear the case decided today (Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections), but later, in 2003 and 2004, discovered a very serious issue calling into question its competence to go ahead with the case.
This was because the Federal Republic of Yugoslavia had by then abandoned its claim of identity in international law with the old Socialist Federal Republic of Yugoslavia, and had therefore accepted that it had not been a member of the United Nations between 1992 and its admission to the Organization in 2000. If that were indeed the case, Yugoslavia would not have had a right of access to the Court under Article 35 (1) of the Statute of the Court, and would therefore not have been capable of being a respondent party in a case before the ICJ.
This point was impressed upon the Court in a 2001 request for a revision of the 1996 judgment, which had found in favour of the Court’s jurisdiction without going into the questions under Article 35 of the Statute, i.e. the matter of the respondent’s access to the Court. The request was, in 2003, rejected largely on the grounds of the specific requirements of the revision procedure under Article 61 of the Statute, but the Court also made reference to the ‘sui generis position’ Yugoslavia had enjoyed vis-à-vis the UN (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia-Herzegovina), paras. 50, 71). What this meant was never entirely clear, but it was widely understood as implying that Yugoslavia had in the relevant period enjoyed some rights of membership in the UN, but not others. Indeed, the ICTY expressly said as much in The Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola Sainović (Case No. IT-99-37-PT, Decision on Motion Challenging Jurisdiction, paras. 37-44), citing the ICJ revision judgment in support of this position.
Whatever this ‘sui generis position’ meant, the notion was not to be around for very long. In a separate set of proceedings instituted by Yugoslavia against all the member States of NATO relating to the Kosovo air campaign, the Court firmly stated in December 2004 that Yugoslavia had not been a member of the United Nations, that it had therefore not enjoyed a right of access to the Court, and that the Court was therefore not competent to deal with the case (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, para. 91).
The Court was, of course, much criticised for thus departing from its own, very recent precedent, as established in the 2003 revision judgment (see ibid., Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Buergenthal and Elaraby, esp. paras. 3, 12).

There was, now, recent ICJ authority saying in the clearest possible terms that Yugoslavia had not been capable of being a party to a case before the Court, when the Genocide case, decided today, was introduced (that being the relevant point in time). This would be expected to give Serbia and Montenegro (as it was by then called) high hopes that the case against them would be dismissed in line with the Court’s 2004 opinion. But the Court today did nothing of the kind.

Instead, the Court today returned to its 1996 judgment, in which it had found that it had jurisdiction. That judgment never went into the question relevant today, namely that of the respondent State’s access to the Court under Article 35 of the Statute, but this did not trouble today’s Court. It held that the 1996 judgment was dispositive of the jurisdiction issue as a whole, and that it had to be interpreted as encompassing not only the matter of jurisdiction under Article 36 of the Statute (which requires the agreement of the parties to bring the case before the Court, in this case established generally in Article IX of the 1948 Genocide Convention), but also the logically anterior question of whether both parties were indeed capable of being parties to the case under Article 35 (and, presumably, Article 34 (1), as well, although this did not present any problems). In other words, the judgment finding for the Court’s jurisdiction would be understood to say not only what it clearly did say, but also to establish what it logically had to say.
This having been established, the 1996 judgment was res judicata as between the parties, which meant that the Court could not go back and re-enter questions it had finally determined at the earlier stage. The power in and obligation on the Court to satisfy itself, if need be proprio motu, of its own jurisdiction, and particularly of the competency of the case under Articles 34 and 35 of the Statute, did not trump res judicata, as no precedent showed this power and obligation to exist in cases where the constraints of res judicata applied.

This presents a novel reading of the doctrine of res judicata, which would previously have been understood as referring only to what has really been decided and reasoned by the earlier Court, and to nothing more (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma appended to today’s judgment, paras. 3-4). Also, the dissenting judges argue that the broader reading of res judicata adopted by the Court could not be reconciled with Article 56 of the Statute, which requires the Court to give reasons for its decisions: if that is so, surely the Court cannot be accepted as having decided an issue without having given even the slightest reasoning to support its supposed holding (ibid., para. 3)?
To be sure, the duty to give reasons for a decision is an indispensable part of all judicial work (see Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports (1954), pp. 47, 52; L.F. Damrosch, in: A. Zimmermann, C. Tomuschat, K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (2006), Art. 56 MN 19-22). But the argument derived from this may still not be as compelling as it would appear: the force of res judicata is a corollary of the finality of the Court’s judgments (Article 60, cl. 1 of the Statute); indeed, it may be no more than another word for it. Such finality exists in the interests of ‘the stability of legal relations’ (today’s judgment, para. 116; in other words, legal certainty), and thus in the interests of all the parties (ibid.), and ultimately the rule of law itself (see ibid., para. 116 in fine, and Hornsby v. Greece (ECtHR), para. 40). It is difficult to see how any of these interests could be diminished if the Court has failed to give reasons for its resolution to the case before it (the relevant aspect of the rule of law is that of legal certainty, not of the material correctness of the decision).
In particular, it is not the Court’s authority that is protected by the preclusive effect of res judicata. If that were the case, the doctrine would apply even to later cases between other parties, and to later cases where there is no complete ‘identity of cause [and] of subject-matter’ with the previous case (see on these requirements of res judicata the Joint Dissenting Opinion, supra, para. 4); it would operate a lot like a doctrine of stare decisis. This it does not do (see ibid.). It is therefore also no argument against the majority view of res judicata that the Court’s authority is not involved if it has never pronounced on a given aspect of a case.

There might be a problem in the Court’s approach in that it ascribed finality to a holding in an earlier decision on which the parties had not at that time presented any argument. But this only really goes to the procedure in the previous case, not to the question of whether the case can be regarded later as having finally determined any issue. After all, even the most explicit holdings can, in certain circumstances, go beyond or otherwise stray from the arguments of the parties (although the doctrine of ne ultra petita, albeit limited by the possibilities of Court action proprio motu, will prevent the Court from going beyond the parties’ claims), and conversely, an issue argued at some length by the parties might appear in the judgment only as a logically implicit holding, like the one found by the Court today.
Also, the preclusive effect of the doctrine of res judicata will obviously not prevent the parties from arguing their case on the previously decided points; the Court is always very slow indeed to interfere with a State’s choice of arguments. While this does not really give the parties ‘their day in court’ if the Court cannot reply to such arguments, full argument may lead the Court to decide that the matter was not, after all, decided in the earlier case.

While neither the argument based on the absence of reasons from the earlier case, nor the one on the absence of argument by the parties provide conclusive general reasons against the judgment of the Court, both do indicate that the course chosen is far from desirable.
But in the circumstances, the solution adopted may have been the most elegant way out of a dilemma: the Court otherwise had a choice on whether it would continue to hold that Yugoslavia had not been a member of the UN, or revert to its previous holding that only some rights of membership were available to that State.
In the former case, it would have again contradicted its 2003 revision judgment, and greatly alienated not only the applicant, but also many other States interested in hearing the Court’s judgment on the merits. The result might even have been comparable to the disaster that struck the Court after its infamous 1966 South West Africa Cases, when States more or less ignored the Court, and starved it of cases. (Perhaps ironically, the Court would appear to have nailed the final nail in the coffin of South West Africa, 1966: if its present view of res judicata had been taken in 1966, the 1962 judgment would almost certainly have prevailed over the 1966 Court’s own opinion).
In the latter case, the Court would again have departed from its own precedent, and, it might be added, for no good substantive reasons. This volte-face might also have served to alienate States, as they could no longer be confident that the Court would faithfully apply its own case-law. Legal certainty is important to litigants, and the absence of legal certainty may wreck a court.
Instead of taking either of these routes, the Court said that while the substantive law is as stated in the 2004 Legality of Use of Force cases (i.e. Yugoslavia was not, at the relevant time, a member of the UN), the Court was bound by the earlier res judicata, and could not give effect to the actual state of the law.
The expansive view of res judicata necessary for this way out of the problem may be open to some doubt, but it does take some more doing to criticise it than to attack either of the other options. Also, the view actually taken may not become relevant again, and thus probably does not carry any risk that States will be seriously unhappy about it (except Serbia).

Finally, a few quick words on whether res judicata, if it does apply, can be overcome by the duty on the Court to satisfy itself of its own jurisdiction. First, it is demonstrated by the Court that there is no precedent demanding a positive answer to the question. This is unsurprising, as the case will hardly ever arise.
Secondly, the Court has also said (at para. 138) that there is no risk that it could ever give judgment on the merits without having jurisdiction, after having erroneously having found that it is competent in a previous judgment on preliminary objections. This is because the question of the Court’s jurisdiction is for it alone to finally decide (Article 36 (6) of the Statute). Therefore, if the Court has found that it has jurisdiction, and is substantively wrong in this, Article 36 (6) of the Statute has the effect of turning the Court’s positive decision on jurisdiction into a title of compulsory jurisdiction; the judgment alone gives the Court jurisdiction. It follows that, ‘as a matter of law’ (ibid.; emphasis in the original), the Court can transform a case without jurisdiction into one without any such problems. Accordingly, if Article 36 (6) of the Statute applies also to decisions on Article 35 (and who else could be entitled to make that decision?), the Court’s decision on access will create a right of access, if it finds one that does not really exist. Therefore, there can be no question of the Court having to go into the matter of the right of access again after that decision, simply because there is no absence of access to rectify, and the Court could only ever come up with a positive answer.

To sum up, I agree with the Court that it was entitled to exercise its jurisdiction, though not without some misgivings. Such misgivings as there are, however, are due not so much to errors on the part of the Court, but to the inconvenient circumstances in which it now found itself. Its solution seems to have been the best possible.

More ICC News: Indictments in Darfur situation to be announced on Tuesday

2007-02-23T15:23:00.000+01:00

As already noted by Julian Ku over at Opinio Juris, the ICC Prosecutor has announced that he "will submit evidence, in connection with named individuals, of war crimes and crimes against humanity in Darfur," and that this evidence will be "file[d] with the ICC judges".
I guess that means that the first applications for warrants of arrest will be submitted on Tuesday.

The big question, of course, is whom the OTP will choose to focus on, especially whether it will also seek warrants against Sudanese government officials and thus risk the non-cooperation of that government. I find this hard to predict - so far, the OTP has in all instances only prosecuted one party to the conflict (i.e. the UPC in the DR Congo and the Lord's Resistance Army in Uganda), but then again, those were state, not Security Council, referrals...

We'll see. In the meantime, the discussion, typcial of international criminal law issues, of "rule of law" vs. "Realpolitik" (or "justice" vs. "peace", or however one wants to frame this discussion) seems to be already beginning at Opinio Juris.

Developments at the ICC - Principal Defence Counsel Hired; New Defense Counsel for Lubanga?

2007-02-23T14:22:00.000+01:00

More on the Confirmation Decision in the Lubanga case soon. In the meantime, there have been some new developments at the ICC concerning the Defence:

First of all, it seems that Thomas Lubanga Dyilo is trying to find a new Defense Counsel as his current counsel Jean Flamme is suffering from health problems: These had already been referred to when the Defence had requested extensions of time limits in the context of appealing the Confirmation Decision of 29 January (see, e.g., para. 2 of this Appeals Chamber document).
In an Appeals Chamber decision of today, we learn that the Defence has submitted a "Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense." The precise content of this document is still confidential, but I guess the title pretty much says it all. The Appeals Chamber has extended the time limits for certain Defence actions until 23 March 2007, so it seems likely that a new Counsel will be chosen by that date at the latest.

In other Defence-related news, the ICC has finally succeeded in hiring a Principal Counsel for the Office of Public Counsel for the Defence, Xavier-Jean Keita of the French bar. Surprisingly little information is available on the web about this new head of the Defence at the ICC (actually, none at all on the ICC website). I find this interesting, especially when compared to the quite abundant information on, e.g., the Chief Prosecutor and his Deputies (see, e.g., this Press Release on the ceremony surrounding the swearing in of Luis Moreno Ocampo) - so much for making the Defence an equal partner and "Fourth Pillar" (next to Judiciary, OTP and Registry) at the ICC, I guess.

Anyway, one of Keita's first acts in office was a response to a decision of the Pre-Trial Chamber "inviting" his office to undertake specicic work for the Lubanga Defence (namely redactions in the application for leave to appeal the Confirmation Decision) in the absence of Counsel Jean Flamme. In his response, Maitre Keita notes not only that his office is not technically able to follow this invitation (not having been granted access to all necessary documents, see para. 22), but also that its mission is to assist Defence Counsel before the Court in general, not to undertake specific work related to a single case, especially where the Defence team in question has not requested the Office to do so (see especially para. 19).

It'll be interesting to see how the relationship of the OPCD to both Defence Counsel and the Chambers of the Court develops further.

Another warm welcome to the International Law blogosphere...

2007-02-15T12:28:00.000+01:00

... to "1948 - An International Blog at the University of Leiden" by Richard Norman and Otto Spijkers. Norman has a background in Conflict Studie, Spijkers is an International Law Ph.D. Candidate at Leiden; accordingly their blog covers not only international law, but also other related topics.
The blog certainly looks spiffy, and in the two weeks that it has been up, the two have already written interesting posts on such diverse topics as "Calvin and Hobbes and International Law" and the ideology of the North Korean regime.

Time for us to update our blogroll...

Thoughts on the Lubanga Confirmation Decision - Part 1 of ?

2007-02-08T18:42:00.000+01:00

Having finally read the Confirmation Decision (which, so far, is available only in French here), here are some initial thoughts:

Some smart Ph.D. student or scholarly inclined Defence Lawyer will have to write a book about disclosure, especially about restrictions to disclosure, at international criminal tribunals.
The disclosure process makes up the bulk of the paper produced in the pre-confirmation procedure, what with all those requests for authorisation of redactions, disclosure notes and inspection reports, etc. I would venture the guess that the whole disclosure process is responsible for a large part of the eight month delay between the first appearance of Thomas Lubanga and the beginning of the Confirmation Hearing - and this in a trial concerning charges which are rather uncomplicated both legally and as regards the evidence required to prove them.
What's more, it also seems to be one of the most legally complicated and divisive issues, with up to now three judgments of the Appeals Chamber reversing Pre-Trial Chamber decisions (one on appeal by the Prosecution - see here; two on appeal by the Defence - see here and here).
And it again features prominently in the Confirmation Decision, where the Pre-Trial Chamber has to deal with the fallout from the last two of these Appeals Chamber judgments, which only arrived after the end of the Confirmation Hearing. Quite frankly, I have all but given up on trying to follow proceedings on these questions in depth, but I do sympathize with the Defence's worries, as detailed e.g. by Melinda Taylor from the Office of Public Counsel for the Defence during the First Day of the Confirmation Hearing (starting on page 171, time-stamp 17:41:00)

Coming to the more substantive issues dealt with by the Chamber, the first refers to the chapeau of Art. 8 Rome Statute, i.e. the existence of an armed conflict in Ituri province at the time of the alleged crimes. The Chamber finds that from July 2002 to June 2003, the Ituri conflict was of an international character due to occupation by Ugandan armed forces. The Chamber also finds that there was some evidence of involvement of Rwandan troops in the conflict, but that there was not enough evidence for it to decide whether this involvement could be characterized as "direct or indirect intervention". Two remarks on these findings:

First of all, they might be taken as indicative of the ICC's behavior towards findings by other international courts, especially on questions of general international law. In this regard, as far as the legal standard for, e.g., armed occupation is concerned, the Chamber relies on a mix of ICJ and ICTY jdugments. As for the factual pronouncements, there are some obvious parallels between the Chamber's decision and earlier ICJ judgments in parallel cases: In proceedings brought by the DR Congo against Uganda, the ICJ had found that Uganda had violated internationa law by, among others, occupying parts of the DR Congo's territory. In parallel proceedings against Rwanda, however, the ICJ found that it lacked jurisdiction to deal with the issue.

Secondly, the Chamber's characterization of the conflict conflicts (bad pun actually not intended) with that of the Office of the Prosecutor, which had characterized the conflict as non-international for all of the material time. The OTP had, in fact, charged Lubanga only with the war crime of recruitment of child soldiers in non-international armed conflict (Art. 8 (2) (e) (vii) Rome Statute) and not alternatively or additionally with the similar crime in international armed conflict (Art. 8 (2) (b) (xxvi) Rome Statute). In such situations, i.e. where the Chamber's legal characterization of acts charged differs from that of the OTP, Art. 61 (7) (c) (ii) Rome Statute foresees that the Chamber adjourns the hearing and requests the Prosecutor to consider amending the charges in this regard. The Chamber, however, chose to instead confirm the charges while substituting (Art. 8 (2) (b) (xxvi) for Art. 8 (2) (e) (vii) (or, in other words, amending them itself), pointing to the substantial similarity between the two crimes. I guess that from the perspective of judicial economy (and thus from a speedy trial perspective), that makes sense. At the same time, it could also be seen as a further stage in the struggle between the PTCs and the OTP about who has control over pre-trial proceedings (I am working on an article on this question, and I also hope to post some more about it in the near future) - in fact, the OTP has asked for leave to appeal the Confirmation Decision, under Art. 82 (1) (d) Rome Statute, for precisely the reason that the Chamber substituted the charges.

Speaking of appeals: Not only the OTP has appealed the decision, but so has the Defence.
First of all, Defence Counsel has brought an appeal an appeal under Art. 82 (1) (b) of the Statute, which grants a right to appeal against "a decision granting or denying release of the person investigated or prosecuted." While it is true that the Confirmation Decision effectively leads to Lubanga's further detention, I am not sure that this means that it is covered by Art. 82 (1) (b), and apparently neither is the Appeals Chamber, which instructed parties to focus on this very question first (see the Defence Submission on the question here).
Second, as becomes clear from this decision of the PTC Single Judge, the Defence has also asked for leave to appeal the Confirmation Decision under Art. 82 (1) (d). We'll have to wait and see how things develop, but my guess would be that none of these appeals will reach the "merits" phase.

This much for now - stay tuned for future posts on the substantive findings on Arts. 8 and 27 Rome Statute and for a first attempt at characterizing the Pre-Trial proceedings as a whole.

Non-Justiciability and the Right of Access to a Court: Some Closing Remarks

2007-02-06T00:34:00.000+01:00

Over the last few months, I have grappled with some American rules of justiciability, and considered whether these are in violation of human rights law, specifically the International Covenant on Civil and Political Rights (ICCPR). Now seems to be the time to draw some conclusions, and add some final remarks.

I have argued in the first post on this subject that Article 14(1)(2) ICCPR, on its face a right to a fair trial, includes an obligation of granting litigants access to a court’s process if the litigation relates to their ‘rights and obligations’. On this basis, I argued that, if a case on its individual facts raises a litigant’s civil ‘rights and obligations’, dismissal of that case on the grounds of non-justiciability is an infringement of the right of access to a court, and as such requires justification (which is essentially a proportionality test, with a consequent prohibition on wholesale negations of the right). It is, in particular, of no immediate relevance that political cases might be said in US constitutional law not to present a ‘case or controversy’ (see Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)), and that political cases are therefore outside the ‘institutional competence’ of the courts (Bancoult v. McNamara, D.C. Cir. 2006, at p. 16 of the PDF file). The right of access to a court does not depend on the domestic view of the separation of powers, but itself requires that the courts be, as a general matter, competent to deal with all cases raising legal ‘rights and obligations’, as defined autonomously under the Covenant, not under the domestic constitution. Where the courts are not so competent, and a case raising such ‘rights and obligations’ is dismissed, the permissibility of the dismissal will therefore be unaffected by the existence of constitutional limits to the courts’ competence, but depend only on whether such limits can be defended as proportionate for the achievement of a legitimate aim (see my post on the political question doctrine).
I have further argued that the political question doctrine presents very grave problems in this respect, and that it may, in its broad form, well be said to violate international law. The state secrets doctrine, while still problematic, may be defended if it is applied with due regard to a fair balance between the protection of genuine state secrets and the right of access to a court. Similarly, the act of state doctrine seems to leave the courts sufficient leeway to warrant dismissal only in cases where it truly appears meritorious.

So, I have concluded that the American rules on justiciability are somewhat problematic. To be sure, the American courts will not care very much, as they accept the Senate’s interpretative declaration appended to the ICCPR that the Covenant is not self-executing (see Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)). However, this clearly does not affect the question of whether the US is in violation of international law if a case is dismissed in violation of the Covenant. The problem I have sought to set out still exists at the international level, regardless of its (lack of) adoption in domestic law.
Assuming I am right in all this, is there a way out of the problem?

Yes, there is. As I pointed out in my post on the act of state doctrine, the right of access to a court can only rule out procedural limitations on what the courts can be called upon to do. If the limitation on the ability of a court to accede to a request follows from the substantive law pleaded by the plaintiffs before it, then the plaintiffs just do not have the right they seek to have judicially protected, and no ‘rights and obligations’ are at issue. The right of access therefore does not apply (see Powell and Rayner v. United Kingdom (ECtHR), at para. 36; Z and Others v. United Kingdom (ECtHR), at paras. 87, 100).
The answer to any problem that justiciability issues might create under the right of access is therefore quite straightforward: the state can simply remove the procedural limitations, and replace them with changes to the substantive law. States might, for instance, accept that highly political questions will be litigated, but at the same time make sure that, in substantive law, the government retains considerable freedom in dealing with such questions. This is, in fact, the general approach taken by German law.
Of course, this approach might raise its own problems under the substantive human rights of the Covenant. For example, if one person makes defamatory statements about another, and the injured person has no substantive right of redress against the defamer, the state may by not providing that right have violated a positive obligation of protection under Article 17 ICCPR (the right to respect for one’s private life, as in Art. 8 ECHR) (see Fayed v. United Kingdom (ECtHR), at paras. 66-67). But where serious issues of policy are concerned, and the government may not wish to be ‘disturbed’ by the law and by the courts, the stringency of human rights law is likely also to be somewhat reduced. Thus, it may be recognized that the state enjoys a broad margin of appreciation e.g. in matters of national security (see Leander v. Sweden (ECtHR), at para. 59; Smith and Grady v. United Kingdom (ECtHR), at paras. 77, 89), or it may be accepted that the state is under no positive obligations in this respect to begin with (see e.g. Jordan v. United Kingdom (ECtHR), at para. 128, and the other European cases reviewed in R (Gentle) v. The Prime Minister [2006] EWCA Civ 1690, at paras. 52-55).

So, the state can turn procedural bars into substantive ones, and be free from the constraints imposed by the right of access to a court (although another human right, like for instance Art. 17 ICCPR, might impose much the same constraints; see Fayed, supra, at para. 67). This means that ‘[i]t may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy’ (ibid.; emphasis added).
If that is so, it may reasonably be asked if the right of access to a court makes any sense. After all, its limitation to procedural issues means that it governs not so much what states can do, but how they must go about doing it. It might be argued that, if such a technical right is not ‘theoretical and illusory’, in exactly the way human rights should not be (see e.g. Airey v. Ireland (ECtHR), at para. 24), nothing is.

But this is to sell short the merits of the right of access to a court. It may be dependent on the content of the substantive law, i.e. the civil ‘rights and obligations’ of a person, at any one time, but it is capable on that basis of strengthening the effectiveness of such law. The right ensures that the courts will be ready to apply and defend the law (or, if they are not, that any grounds for not hearing or deciding a case are reasonable). It therefore protects the role of the courts as the defenders of the rule of law, and requires the courts to faithfully execute this role. The right of access to a court therefore reinforces the rule of law itself, as indeed it was intended to do (see Golder v. United Kingdom, at para. 34); this function is, in addition, strengthened and put into actual practice by the further obligation deriving from this right to ensure that any judgment given as a result of a person’s access to the court’s remedial processes is then complied with and executed (see Hornsby v. Greece, at para. 40).
The fact that the right is dependent on the (arguable) existence of ‘rights and obligations’ under substantive law would seem to entail that the courts are allowed to blindly apply that law without concerning themselves with objections as to its material content. This means that the concept of the rule of law employed is a somewhat technical one, requiring the courts (and other organs of the State) to always apply the law as they find it, but experience (inter alia, that of the Strasbourg Court itself) shows that even this somewhat less than ambitious guarantee is not self-evidently observed, and has been violated. It is therefore right that a guarantee should exist against refusals by the courts to uphold the rule of law.

This is not necessarily to say that overly cautious doctrines on justiciability represent a monstrous abdication by the courts of their function as the ultimate guarantors of the rule of law, but it can be argued that the judges should and must be wary of any step in that direction, on the basis of current international human rights law, as supported by reasons of high principle.

Blog Recommendation: Trials and Denials in Cambodia

2007-02-05T15:24:00.000+01:00

We interrupt our regularly scheduled program to recommend another blog on international criminal law: Trials and Denials in Cambodia, by a Cambodian blogger describing her/himself as a "Thinker", covers the goings-on surrounding the Extraordinary Chambers in the Courts of Cambodia and offers some interesting insights.
Among those: One of the main problems facing the Court's staff at the moment is food.

ICC: Decision on Confirmation of Charges in the Lubanga Case on Monday

2007-01-29T16:08:00.000+01:00

Just a quick heads up to those interested in developments at the International Criminal Court: On Monday 29 January, Pre-Trial Chamber I will deliver its decision on the confirmation of charges in the case against Thomas Lubanga Dyilo, former President of the Union des Patriotes Congolais (see the Court's Press Release here).
If all or some of the charges - enlisting and conspricting children under the age of fifteen and using them to participate actively in hostilities - are confirmed, the first trial at the ICC can be expected to begin this year.
Watch this blog for a first look at the decision early next week - hopefully I'll also find the time to sum up some of the more important decisions in the Pre-Trial Phase.

UPDATE: Charges have been confirmed, a press release summarizing the decision is available here. More after the written decision has been made available online, which apparently may take a couple of days.

English Court Refuses Challenge to Legality of Iraq War

2007-01-16T21:52:00.000+01:00

As I mentioned in an earlier post, the English Court of Appeal (the second highest court in England and Wales, after the House of Lords), has agreed to hear a case effectively challenging the legality (in public international law) of the last Iraq war. The hearing has been held in November, and judgment was delivered on 12 December 2006 (I apologise for reporting this only now; other duties intervened). The case is R (Gentle & Ors) v. The Prime Minister [2006] EWCA Civ 1690.

The applicants in the case were all relatives of British soldiers killed in Iraq, and requested an investigation into their sons’ deaths. This is, as such, nothing extraordinary, and certainly nothing the government would be worried about. In fact, there was no question that an ordinary coroner’s inquest would be held, to find out ‘by what means and in what circumstances’ (see R (Middleton) v. West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para. 35) the soldiers had lost their lives.
But the applicants’ request was rather broader than that, and much more worrisome for the government. They requested that the purview of the inquest be extended to cover also ‘the question whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law’ (para. 3 of Gentle).
The applicants’ argument was basically in two parts:
- There was a procedural obligation under Article 2 ECHR to investigate the circumstances of any death occurring in circumstances where the substantive provisions of Article 2 on the State’s negative and positive obligations with respect to the life of persons under its jurisdiction may have been violated. This much was not contentious, and is quite clearly correct (see again Middleton, supra, para. 3, citing a wealth of European jurisprudence).
- One of these positive obligations with respect to a person’s life was that the State could not send its soldiers into battle unless it had ascertained previously that the battle was in accordance with international law.

This second submission was, of course, contested by the government’s side, and was rejected by the Court of Appeal (it was also, incidentally, very much doubted by yours truly, if partly on other grounds).

The Court began by saying that any claim for judicial review challenging the lawfulness of going to war would ordinarily be bound to fail, as it would take the courts into a ‘forbidden area’, that of the most highly political, and least (domestically) legally controllable, decisions under the Royal prerogative. However, the Court also recognised that the rules of justiciability could not prevent the courts from giving effect to a Convention right.
The question was therefore only whether there was an obligation under Article 2 ECHR not to wage war unless one is sure that the war will be in accordance with international law. The Court accepted, however, that the obvious non-justiciability of the question, as apparently more or less recognised by all member States of the Council of Europe, did present an argument against the existence of the Convention obligation.

The Court held that there was no such obligation. The obligation to make sure that a war was lawful could not be divorced from the much broader question whether it was politically and militarily desirable, but the applicants had clearly disavowed any support for such a broad rule. The question, and with it the question of the legality of a war, was one of policy and within the sole discretion of the State. This was supported by European and domestic authority (with which I will burden this post), whereas the applicants’ position was not.

The Court did not address the further question whether the deaths had occurred ‘within the jurisdiction’ (Article 1 ECHR) of the UK, except in noting very briefly that there was ‘much to be said for the conclusion that the principles in Soering [i.e. the prohibition of sending someone to a place where he or she would run a real risk of subjection to treatment (grossly) contrary to Convention standards] should apply to article 2 as they do to article 3’ (para. 82 of Gentle).

The judgment in Gentle is far from adventurous, but its outcome is clearly correct. It is only a little curious that the Court does not begin to go into the fairly fundamental question why the legality of the Iraq war should have anything to do with the positive obligation of protection that a State owes all persons under its jurisdiction, including its soldiers. As I mentioned in my earlier post, there is no requirement in Article 2 ECHR that any killing be lawful; much less is there a requirement that every State action exposing individuals to a real risk of being killed be lawful. The question here is whether there exists such a real risk, not whether the law (any law) allows the State to take such a risk.
The Court is therefore quite right to say that any obligation of ascertaining the legality of a war would be bound up with the further question of the military advisability of going to war, but this is not due only to the specific circumstances of the government’s examination of the law in this case. Rather, if the Soering-type obligation under Article 2 ECHR did apply, it would surely prevent the deployment of soldiers also where a lawful military campaign created a ‘real risk’ (a relatively high standard) of being killed for the soldiers.
It may appear, as a practical matter, that this consequence will never be drawn judicially. But it may also be mistaken in principle, simply on the grounds that the standard of the ‘real risk’ is too high to ever be achieved in the context of military operations. After all, the standard would have to be met for every soldier individually, so as to prevent his or her deployment. The circumstances of military action will hardly ever be so grim as to force the conclusion that either every soldier, or every one of a given group of soldiers, or one specific soldier, will run a real risk of not returning.
And even if circumstances should be so grim, the State could always enter a derogation under Article 15 ECHR. To be sure, this is limited for Article 2 to a derogation for killings allowed under humanitarian international law (Article 15(2) ECHR; see my earlier post), but the latter body of law does not prevent the killing of soldiers fighting in an armed conflict.
Of course, all this is before we even come to the argument that a soldier necessarily consents to being put in situations of extreme danger, and that he or she therefore waives the Article 2-Soering-right. The waiver argument is rarely very attractive in human rights law, allowing for all sorts of slippery-slope arguments, but it may be acceptable in the present context. If the State was prevented from exposing anyone to a danger of death, regardless of that person’s consent, all kinds of emergency services would face a very real problem (and the consenting person’s autonomy, surely the linchpin of all human rights, would be rather ignored).

Postscript to Tobias' Introduction

2006-10-23T13:00:00.000+02:00

I have been absent from the blogosphere for quite some time now, and apologise to anyone who may have visited this site time and again, only to find that nothing had been posted to it. (I don't know if anyone did)

This is not without reasons: I have recently taken up LL.M. studies at the University of Edinburgh, and was (a) quite busy finding my way around (b) quite busy socially (well, I am a fresher - freshman, to our American readers - again...), and (c) British Telecom took their time in arranging internet access for my flat.

My latest post, No. 3 in a line of posts begun much too long ago, is below. There may be more coming in the next few days, depending on the speed of my research.

The Act of State Doctrine: In Violation of International Law? (Part 3)

2006-10-23T12:43:00.000+02:00

In Part 3 of my series of posts on justiciability and the right of access to a court, I now come to the act of state doctrine, having considered the political question doctrine and the state secrets doctrine in earlier posts, all after having set the scene with some remarks on the relevant rules of international human rights law.

I now repeat very briefly some of those introductory remarks: I concluded that Article 14 (1) (2) ICCPR implied a right of access to a court in much the same way that Article 6 (1) ECHR does (as to which see Golder v. United Kingdom, at para. 26-40). Accordingly, Article 14 demands that all disputes involving a person’s ‘rights and obligations’ be capable of submission to judicial settlement, or else that any dismissal in such a case be justified in accordance with the implicit requirements of the right of access, viz. the proportionate application of rules of law pursuing a legitimate aim.

But now on the doctrine itself:

The act of state doctrine prevents American courts – ‘federal and state courts alike’ (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964); Kirkpatrick v. Environmental Tectonics Corp., 493 U.S. 400, 406 (1990)) – from ‘declar[ing] invalid the official act of a foreign sovereign performed within its own territory’ (Kirkpatrick, supra, at 405). Such an act ‘becomes (…) a rule of decision’ (Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)), so that an American court faced with it must treat it as valid. Accordingly, the jurisdiction of the court to make any decision on the foreign act of state is not ousted by the doctrine; all the doctrine does is to determine the result which the court must take as established, namely the validity of the foreign act of state. The doctrine may therefore be described as ‘an immunization ratione materiae’ (Thomas H. Hill, ‘Sovereign Immunity and the Act of State Doctrine. Theory and Policy in the United States’, RabelsZ 46 (1982), pp. 118, 123).

This means that the doctrine is by no means identical to the rules of state immunity under international law, which do go to the jurisdiction of a court over a foreign state and its actions. This is also shown by the fact that the doctrine can operate where a state, which has itself been sued for its acts before an American court, has waived its immunity from legal process; the doctrine would even then prevent the court from finding an act of that state invalid (Hill, ibid.).

This is because the act of state doctrine does not depend for its validity on the rules of state immunity, or even on related considerations. As the US Supreme Court has explained,

‘The act of state doctrine does (…) have “constitutional” underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.’

(Sabbatino, supra, at 423). The doctrine therefore addresses ‘an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425), in that it prevents the courts from ever denying the validity of the acts of a sovereign state, and reserves this matter entirely to the other branches.

It remains unclear whether the doctrine applies also to the commercial of a foreign state, and whether the executive can ‘waive’ the monopoly afforded to it by the doctrine by declaring that in a specific case, it has no objections to denying validity to the foreign act of state (see Kirkpatrick, supra, at 404-405, citing opinions by two Justices affirming these exceptions, but refusing to decide the questions).

The fact that the doctrine does not, as I said, go to the jurisdiction of the courts generally, but constitutes ‘a rule of decision’ (Ricaud, supra, at 310) and an ‘immunization ratione materiae’ (Hill, supra), raises the first question in the examination of the doctrine under the international legal right of access to a court. This is whether the doctrine forms part of procedural or of substantive law.
If it is essentially a rule of substantive law, it negatives any ‘rights and obligations’ that private persons might otherwise hold in relation to the validity of acts of foreign states, i.e. the rights which such persons may claim to have been violated by a foreign state. Accordingly, the right of access to a court, which requires that such ‘civil rights and obligations’ be present, would not apply (see Z and Others v. United Kingdom, at paras. 87, 100).
If it is a rule of procedural law, this reasoning would not apply, and the right of access would be applicable. Any dismissal would therefore infringe the right, and require justification.

So, does the doctrine annihilate any rights that US law might otherwise grant in relation to foreign acts of state, or does it only prevent the courts from giving effect to US law in a manner that would lead them to declare a foreign act of state invalid? (Note that this is without prejudice to the – very reasonable – point that a right that is unenforceable in court is not really worth very much)
The answer appears to be that the doctrine belongs to procedural law. It is based on the constitutional role of the courts, rather than on any question relating to the substantive law. In content, it in effect renders the foreign act of state immune, if only from negative decisions of the courts. It thus goes to the court’s jurisdiction to make such a negative decision (see also Patrick W. Pearsall, ‘Means/Ends Reciprocity in the Act of State Doctrine’, Columbia Journal of Transnational Law 43 (2004-2005), pp. 999 et seq.), and is therefore substantive only in the sense that the courts will not dismiss for want of subject-matter jurisdiction, but for failure to make a substantive case. However, the substantive right as such remains unaffected, and may conceivably be taken up by the executive. If the rights did not remain extant, and the courts did, for example, recognize the substantive validity of any foreign act of expropriation, then such property rights would have been found to have been lawfully removed by the law of the foreign state, and the executive would face embarrassment when taking up the proprietors’ claim. This would obviously be directly contrary to the intendment of the doctrine.
It follows that, even if the doctrine applies, there remains a question of substantive law – and, possibly, of a person’s ‘rights and obligations.’

It might be noted, however, that there is a problem of translation here. It could be argued that in the understanding prevalent in common law jurisdictions, law exists only insofar as it can be applied by the courts, and that, consequently, any immunity may well be regarded as removing the rights otherwise to be protected by court proceedings. This would be a corollary of the court-centred nature of the common law system, in which, technically, the law does not give rights but grants actions (see e.g. Stig Strömholm, ‘The Tension between Human Rights and Responsibilities’, Juridical Review (2004), pp. 13, 15; see also R (Al-Rawi & Ors) v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, at para. 146, per Laws LJ).
Thus, to give some examples, the exclusion of all actions in nuisance (a tort) in relation to the noise from Heathrow Airport was accepted by the ECtHR as removing the potential claimants’ ‘civil rights’ (Powell and Rayner v. United Kingdom, at para. 36), whereas conversely, the inability of the police to commit a certain tort in English law (as a point of substantive law) is often described as an ‘immunity’ (see for criticism of this terminology Barrett v. London Borough of Enfield [2001] 2 AC 550, per Lord Browne-Wilkinson; this terminology was misunderstood by the ECtHR in Osman v. United Kingdom, at paras. 135-140, as a procedural immunity, in an error acknowledged by the Court in Z and Others v. United Kingdom, supra, at para. 100).
Accordingly, any exclusion of all remedies in court in a common law jurisdiction may fall to be interpreted as affecting the substantive law, and therefore as removing all otherwise existing ‘rights and obligations.’ However, this does not account for the reasoning set out above as to why the reasons behind the doctrine must make it a rule (only) of procedural law.

If my understanding is correct, then there is an infringement of the right of access to a court where a case is dismissed under the act of state doctrine.

This again brings us to the question of justification.

As already stated, such justification is not available on the grounds of compliance with the commands of public international law, since the doctrine does not rest on international grounds. But, while this is true as a general point, there may be cases where the application of the doctrine leads to a result required by the rules of state immunity ratione materiae – although this would mean that the court in question has failed to see the relevance of state immunity, since, as an issue of jurisdiction, it would otherwise have logically arisen before the act of state doctrine. In such a case, justification would certainly be available.

In all other cases, justification of the infringement of the right of access to a court would depend on the acceptability or otherwise of the reasons behind the doctrine. The fact that the doctrine reflects the domestic constitutional arrangements as to the separation of powers, taken by itself, cannot be determinative, as I have previously argued with respect to the political question doctrine: the right of access to a court predetermines one aspect of the separation of powers by demanding that all disputes involving a person’s ‘rights and obligations’ be, absent justification, be capable of adjudication. Any conflicting domestic arrangement would merely create the background for future violations of the right, but would fail to affect the judgment in international law.
However, such an arrangement may be pursuing a legitimate aim and striking a correct balance between the reasons behind it and the right of an individual to have his or her cases heard and determined in court (such are the requirements of justification under the right of access: see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72).

The act of state doctrine ‘arises out of the basic relationships between branches of government in a system of separation of powers’ (Sabbatino, supra, at 423). It reflects ‘a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425)’, and may therefore be said to recognize that the executive is more suited to handling issues of international importance than are the courts. That the presence of sensitive issues in international relations is a good reason for being cautious in granting access to adjudication may have some support in the jurisprudence of the ECtHR: see Al-Adsani v. United Kingdom, Concurring Opinion of Judge Pellonpää, in fine (although this relates to caution in applying international law correctly). This may also be borne out by references by the ECtHR to the state’s margin of appreciation in immunity cases (see e.g. Fogarty v. United Kingdom, at para. 39): while it cannot be within that margin to pretend that the act of state doctrine is as such commanded by international law, there may be grounds for applying a broad margin of appreciation to all areas of international concern. After all, it may be for related reasons that the – Soering-type – prohibition of extradition applies only where there is a risk of severe mistreatment in the receiving state. Similarly, the prohibition on the recognition of foreign judgments resulting from an unfair trial may be said to be limited to cases of flagrant disregard of fair trial standards precisely because of the presence of international interests (see Drozd and Janousek v. France and Spain, at para. 110; but see also Pellegrini v. Italy, at paras. 40-8, where no such limitation was mentioned or applied).

However, this concept of the executive being more capable of handling international issues is a far-reaching one, and the limitations imposed on the right of access to a court must never be such as to ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72). Clearly, any blanket immunity therefore creates particular problems (see Osman v. United Kingdom, at para. 151; Fogarty v. United Kingdom, Dissenting Opinion of Judge Loucaides).
But then, it is also to be noted that the act of state doctrine is somewhat flexible in content (see e.g. Sabbatino, supra, at 427-428; Kirkpatrick, supra, at 409), even if it might be argued that it is of constitutional stature, and may therefore not be altered even by an Act of Congress (as has been argued by Helen Kim, ‘Comment: The Errand Boy’s Revenge: Helms-Burton and the Supreme Court’s Response to Congress’s Abrogation of the Act of State Doctrine’, Emory Law Journal 48 (1999), pp. 305 et seq.; see also Pearsall, supra, at pp. 1012-3). Thus, for example, ‘the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it’ (Sabbatino, supra, at 428); the extent of possible embarrassment for the executive branch will also be relevant (Pearsall, supra, at p. 1006). This may well save the application of the doctrine in many cases from falling foul of the right of access to a court.

In sum, the act of state doctrine does, in my view, create serious problems under the right of access to a court inherent in Article 14 (1) (2) ICCPR, but its flexibility may leave the courts sufficient lee-way to strike a justifiable balance between the public interest in leaving sensitive areas of foreign relations law to the executive and the human rights of people approaching the court for settlement of their grievances.

State Secrets and the Right to a Fair Trial, cont.

2006-08-02T16:47:00.000+02:00

I have argued in an earlier post that the secrecy of information relevant to a civil or criminal court case creates serious problems under Article 6 ECHR and/or Article 14 ICCPR, but that it could potentially be justified if all possible steps short of disclosure are taken in order to alleviate the consequences for any trial of – reasonably ordered – classifications of information.

I return to this because the English Court of Appeal has yesterday (again) spoken on the issue, reviewing a number of relevant authorities (some of which had eluded me) and reaching much the same conclusion as I did: where all the appropriate safeguards (including the provision of special counsel to represent the absent private party in relation to material heard in closed session) are in place, it may be permissible to keep some classified information from a private party to a case: Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, at paras. 69-86.

Needless to say, I agree.

English Court to Hear Challenge on Legality of Iraq War

2006-07-27T13:51:00.000+02:00

The English Court of Appeal yesterday granted permission to claim judicial review in R (Gentle & Ors) v Prime Minister & Ors [2006] EWCA Civ 1078, allowing the claimants to argue before it that the Iraq war was illegal under international law.

The claimants are all relatives of British soldiers killed in Iraq. They argue that the United Kingdom is responsible for the deaths under Article 2 ECHR (the right to life). Accordingly, they request a public inquiry into the deaths, in accordance with the procedural duty to conduct such an inquiry under said Article 2 (see e.g. McKerr v United Kingdom, at para. 111). They further request that such an inquiry should also look into the legality of the Iraq war as such, under the international jus ad bellum.

There are a number of difficulties with this argument:

First, did the fatalities fall within the jurisdiction of the United Kingdom, as required by Article 1 ECHR? The answer to this is little short of ingenious: the United Kingdom is said to be responsible for the soldiers’ deaths because it sent the young men to Iraq, thus exposing them to the risk of being killed, contrary to its Soering-type obligation to protect the men from such risks (on Soering as a case of a ‘duty to protect’, albeit a negative one, see Limbuela v Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440, at para. 64).

Of course, this kind of reasoning could spell disaster for European states, if the simple act of sending soldiers to a region in crisis could be said to involve, without more, a violation of the soldiers’ human rights (of course, as the judge at first instance rightly noted, ‘so-called floodgate arguments are not particularly persuasive in most cases’: [2005] EWHC 3119 (Admin), at para. 32, per Collins J). But perhaps we don’t have to resort to arguments such as the voluntary nature of military service as a waiver of human rights, or similar slippery slope points.

This is because, attractive though this reasoning is, it is not without its own constructive problems: thus, it is as yet unclear whether the Soering-rule, developed in an Article 3 case, applies also to Article 2 (but see the hints in Kareem v Sweden). Also, can it really be said that there is a ‘real risk’ of being killed for a soldier on embarking on a tour of duty? For one thing, the risk may be, while certainly present, not sufficiently grave; for another, the risk may be one common to everyone in the area (and therefore irrelevant to the Soering claim, at least according to Vilvarajah v United Kingdom, at para. 111).

The next difficulty for the claimants lies in the question why the legality of the Iraq war as such should be a matter for decision under the Article 2 claim.

Assuming that the Soering argument does hold water, Article 2 includes no requirement to the effect that any infringement of the right must be covered by lawful authority. Accordingly, the fact that the act of sending soldiers to fight in Iraq may itself have been in violation of international law, and thus unlawful, is nothing to the point.

The claimants therefore refer to Article 15 ECHR, which governs derogations from Article 2 in times of war, and provides in paragraph 2 that such derogations are impermissible ‘except in respect of deaths resulting from lawful acts of war’ (my emphasis). They argue that this refers back to the international rules governing the lawfulness or otherwise of the use of force (Article 2(4) of the UN Charter, and the corresponding rule of customary law).

However, the expression is not ‘resulting from lawful war’, it is ‘resulting from lawful acts of war’. This, like the fact that the ECHR deals with the rights of individuals, not of states, strongly suggests that the reference is to the rules of humanitarian international law governing the lawfulness or otherwise of killing in war (the jus in bello), not the legitimacy of waging war in the first place (the jus ad bellum).

In sum, I would agree with Julian Ku at Opinio Juris that the claim is based on a rather far-fetched argument.

But the claim also faces another very serious obstacle, in the shape of the English rules on justiciability: while there is no general political question doctrine, there are other rules occupying similar ground. Thus, Lord Bingham of Cornhill has explained in R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 30, in a passage that could have been tailored to the present case:

'Resolution of the charge would (...) call for a decision on the culpability in going to war either of Her Majesty's Government or a foreign government, or perhaps both if the states had gone to war as allies. But there are well-established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law.' [There follow extensive citations of authority]

This rule is, of course, subject to any rule of domestic law requiring adjudication even in the face of such circumstances (see Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [2006] 2 WLR 70, at paras. 31 et seq.), but, as I have attempted to show above, the Human Rights Act in this case requires nothing of the kind.

The claim would therefore appear to be certain to fail. Indeed, the Court of Appeal was at pains yesterday to stress that it did not grant permission to pursue the case because it saw any ‘real prospect of success’ (one of the two grounds under CPR 52.3(6) for granting permission); it granted permission only because the case raised questions of general importance and there was therefore ‘some other compelling reason why the appeal should be heard’ (the other ground). The Court also said (at para. 22):

‘We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed.’

In my view, the Court was quite right to add this warning.

Still, the hearing will certainly be interesting. If anyone reading this will be in London in November, I recommend going to the Royal Courts of Justice to hear this sustained legal attack on the decision to go to war in Iraq.

P.S.: It is also an unusual feature of this case that the application for judicial review will be heard not by the High Court, but by the Court of Appeal itself. Moreover, in a pointer to the importance of the case, the Court of Appeal will sit in a rather prominent constitution, being composed of Sir Anthony Clarke, the Master of the Rolls and Head of Civil Justice, Sir Igor Judge, the President of the Queen’s Bench Division, and Lord Justice Dyson.

U.S. Supreme Court Deals a Blow to ICJ, Wrongly

2006-06-29T16:59:00.000+02:00

Yesterday, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon, in which it held that (i) violations of the right to notification under Article 36 (2) of the Vienna Convention on Consular Rights (VCCR) do not make evidence gained from an accused ignorant of his rights inadmissible, (ii) claims of such violations were subject to the ordinary rules on procedural default, by which federal courts will in principle not hear challenges to state judgments that have not been previously raised in state court, and (iii) the fact that the International Court of Justice (ICJ) had held the application of the procedural default doctrine to be in violation of Article 36 (2) VCCR (LaGrand and Avena and Other Mexican Nationals) was nothing to the point, because the ICJ cases were (a) not binding on US courts, and (b) had been wrongly decided.

In my opinion, the only case here to have been wrongly decided is Sanchez-Llamas.

The first problem, to say the least, lies in the question whether the Supreme Court was bound to follow the ICJ. The Supreme Court here held that the US Constitution placed the powers of the Judiciary in US courts and specifically in the ‘one supreme Court,’ and that it therefore was not bound to follow any external cases.
To be sure, there is no doctrine of stare decisis in general international law (although I should point out that stare decisis has recently been advocated as a means of preventing other international courts and tribunals from departing from ICJ case law: see Jasper Finke, Die Parallelität internationaler Streitbeilegungsmechanismen, Duncker und Humblot: Berlin 2004, pp. 365 et seq. I don’t think that such is the law as it stands: see also the review of this book by Karin Oellers-Frahm in the German Yearbook of International Law 47 (2004), pp. 972, 975-76).
The Supreme Court is also quite right in saying that the ICJ is not itself bound by its own precedents (Article 38 (1) (d) in fine of the Statute).

However, states are bound by Article 94 (1) of the UN Charter (always read with Article 59 of the ICJ Statute) ‘to comply with the decision of the [ICJ] in any case to which it is a party.’ Again, to be sure, this binding force exists only ‘between the parties and in respect of the particular case’ (Article 59 of the Statute, emphasis added).
The petitioners in Sanchez-Llamas, Mr Moises Sanchez-Llamas and Mr Mario Bustillo, were not among the persons whose cases were referred to the ICJ in Avena. Mr Bustillo is not even a Mexican national. Nonetheless, it may be possible to argue that Mr Sanchez-Llamas, as a Mexican national, did come within the binding force of the Avena judgment, i.e. that he comes within ‘the particular case’ (Article 59 of the Statute). This is because the ICJ included a finding of general application in the operative and binding part of the Avena judgment: para. 153 (11) of the judgment found ‘that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention’ (emphasis added).
This finding by the ICJ clearly applies to any Mexican nationals, not only to those whose cases were before the Court (this is put beyond doubt by the fact that the same finding, mutatis mutandis, was already contained in LaGrand, at para. 128 (7), which case of course directly concerned two persons who had already been executed). There is a presumption that this command is within the bounds of Article 59 of the Statute, and not ultra vires the ICJ; indeed, this much is supported also by academic comment: see Rudolf Bernhardt, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary, Oxford University Press: Oxford, 2006, Art. 59 MN 36-40 (p. 1243).
In fact, this finding by the ICJ should be understood as following from a German/Mexican request for a general assurance of non-repetition (to which an injured state is, of course, entitled: see Article 30 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, p. 216, and Commentary thereto, ibid., pp. 219 et seq.). The requested assurance or guarantee, allowed by the law of state responsibility, is in effect granted by the judgment of the Court itself.
The United States must therefore abide by it, and the courts of the United States, whether federal or state courts, as organs of the United States of America, must respect the obligation of adherence to the binding judgment, or else the United States will violate international law (see Karin Oellers-Frahm, in Zimmermann/Tomuschat/Oellers-Frahm, op. cit., Art. 94 UN Charter MN 12-14 (pp. 165-67)).
In other words, the United States have yesterday violated international law.

And that’s before we come to an even more troublesome point: the constitutional interpretation chosen by the Supreme Court in order to absolve itself from the duty to follow the ICJ cases appears to be force the Supreme Court, as much as any other American court, from giving effect to the Avena judgment even in cases clearly falling under the obligation of Article 94 (1) of the Charter. If one of the individuals personally covered by the ICJ judgment should ever come to the courts to argue that his case must be reconsidered in accordance with Avena, an American court will be faced with a non-binding international judgment and, on the other hand, yesterday’s very much binding judgment in Sanchez-Llamas. Courts other than the Supreme Court would have no choice but to follow Sanchez-Llamas, and incur responsibility under Article 94 (1) of the Charter.
And even the Supreme Court would be in trouble in such a case: while it may, of course, depart from its own precedents, as from any others, it could hardly say that the VCCR means one thing in an Avena case, and quite another in all other cases (there in accordance with Sanchez-Llamas). This would be astounding.
So, whatever happens (short of the Supreme Court overruling Sanchez-Llamas very soon), the United States’ courts will be incapable of giving effect to Avena, at least as regards the procedural default aspect. At the very least, Sanchez-Llamas therefore means that the US will violate Article 94 (1) of the Charter.

Nor could it be said that the interpretation put on the Convention by the Supreme Court is beyond doubt, or even simply correct.
The Supreme Court put it to the ICJ that the latter had misunderstood the adversarial system of criminal proceedings in the American legal system. This was said to be relevant because Article 36 (2) VCCR provided that ‘[t]he rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state.’
However, this is under the proviso ‘that the said laws must enable full effect to be given to the purposes for which the rights (…) are intended.’ The rights must, accordingly, not be nullified, or restricted beyond usefulness. The ICJ considered that such would be the case if a person could not plead a violation of his or her rights in federal court, on the ground that he or she did not know of his rights earlier, which itself is a consequence of the violation. This appears to be unassailable.
Put simply, the reference to domestic law in Article 36 (2) VCCR does not give a state licence to remove the rights altogether. Nor does it allow a state to keep in operation fundamental rules of its own legal system, no matter what the effect of these rules on the relevant rights. Herein appears to lie much of the fallacy of the Supreme Court.
Also, the right is not the exception; the limitation by domestic law is. Generally speaking, domestic law, including basic features of the legal system, like the adversarial court system or the federal structure, are utterly irrelevant to international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231). The power of domestic law to limit the effect of international rules should therefore be narrowly construed. This the Supreme Court certainly did not do.
In fact, the Supreme Court’s judgment could hardly be described as according ‘respectful consideration’ to the views of the ICJ, to which they are, on the Supreme Court’s own view, entitled. The ICJ is the ‘principal judicial organ’ (Articles 92 of the UN Charter, 1 of the ICJ Statute) of the world organization, has described itself as an organ of international law (Corfu Channel, ICJ Reports (1949), pp. XXX), and holds very special expertise in all matters relating to international law (cf. Art. 2 of the Statute). This entitles it to a very great deal of respect, comparable to that which European courts commonly accord to the European Court of Human Rights (as to which see e.g. R (Boughton and Ors) v. HM Treasury [2006] EWCA Civ 504, at paras. 11, 38-41).

In sum, the Supreme Court has taken a swipe at the ICJ, which is not only regrettable as such, but also ill-considered on its merits.

Sudan Questions the ICC's Jurisdiction

2006-06-19T16:10:00.000+02:00

According to this Reuters Article from last Thursday, Sudan is questioning the International Criminal Court’s jurisdiction over the alleged cases of genocide, crimes against humanity and war crimes (See Art. 5 et seq. ICC Statute).

Sudan’s Justice Minister Mohammed al-Mardi said that:

‘If they are here to discuss the progress of trials or the role of national justice then we are ready to give them whatever information they are looking for (…) but if the matter is about investigations, then they (...) don’t have the jurisdiction.’

This statement followed a report given by ICC chief prosecutor Luis Moreno Ocampo to the UN Security Council on Wednesday saying that the ICC’s investigation has documented thousands of killings of civilians, large scale massacres, and hundreds of rapes.

The argumentation of Sudan seems to be that Sudan is investigating and prosecuting all crimes that probably happened in Darfur, and that therefore the ICC has no jurisdiction.

In this case, the ICC’s chief prosecutor started his investigations in Darfur under Security Council Resolution 1593 (2005) referring the situation in Darfur to the Court, a possibility of inducing proceedings provided by Art. 13 b) ICC-Statute.

According to Art. 17, however, the ICC shall determine that a case is inadmissible where:

‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.’
The principle of complementarity expressed in a) is obviously the norm al-Mardi is referring to.

Considering Sudan’s argumentation and said norms of the ICC Statute, there seem to be different legal questions under the Rome Statute that should be raised here. Before the questions can be addressed, however, it has to be said that Sudan is obliged to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to the Security Council Resolution, so that Sudan has no argument if the Rome Statute allows for investigations by the court.

First of all, the question arises whether Art. 17 refers also to the admissibility of investigations by the prosecutor. While Art. 13 refers to the exercise of jurisdiction by the Court, Art. 17 clearly addresses situations where a case is inadmissible. According to Art. 53, however, the prosecutor, in deciding to initiate proceedings, must also consider whether the case is admissible according to Art. 17. So Art. 17 plays a role also in the beginning of an investigation. however, according to Art. 53, it is the prosecutor who decides upon such investigations, not Sudan.

The second question is whether Art. 17 applies to cases where the Security Council referred a situation to the ICC. Under the wording of the Arts. 13 and 17, it seems clear that Art. 13 - the courts exercise of jurisdiction - and Art. 17 - the admissibility of a case, speak of different questions, and since there is no special limitation, Art. 17 is applicable to all cases of Art. 13. One could argue, however, that in cases where the Security Council under Chapter VII of the UN Charter refers a situation to the ICC, the question under Art. 17 if the concerned state is willing and able to prosecute has to be denied in any case. Would there otherwise be a threat to the peace or breach of the peace allowing the Security Council to act and to refer the situation to the court?

The third question is, if Art. 17 is fully applicable also in cases where a situation is referred to the Court by the Security Council, does the Security Council’s Resolution order the Court to investigate, giving it exclusive jurisdiction whether national courts are acting or not? It seems clear that the Security Council has the power to limit the states’ jurisdiction, thus going further than even the Rome-Statute does, making the ICC some kind of special tribunal. I can however not find any special passage clearly limiting Sudan’s jurisdiction, or in any other manner derogating from the principle of complementarity.

The fourth question then would be whether the Sudan really is willing and able to investigate and prosecute all crimes committed in Darfur, which can be doubted seeing the Report by Mr Ocampo and a Background Paper by Human Rights Watch, accusing Sudans Special Criminal Court of failing to accomplish its mission of prosecuting war crimes.

House of Lords on State Immunity for Torture in Civil Proceedings

2006-06-15T13:45:00.000+02:00

The House of Lords yesterday ruled that Saudi Arabia and Saudi Arabian officials were both immune from civil suit, even though the tort alleged was torture: Jones v. Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Others [2006] UKHL 26.

As regards the immunity of the Kingdom of Saudi Arabia itself, the House ruled, in the two fully reasoned speeches given by Lord Bingham of Cornhill and Lord Hoffmann, and with the agreement of all the other three members of the Appellate Committee (Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, and Lord Carswell), that there was no sufficient state practice in favour of an exception from state immunity for grave charges such as torture. The survey of authority by the House is quite comprehensive, and clearly lends ample support to their Lordships’ conclusion.

The House also considered whether the fact that the prohibition of torture ranks as jus cogens prevents state immunity, a rule of ‘ordinary’ customary international law, from taking effect where acts of torture form the subject-matter of a case. This had been stated by a narrow minority of the European Court of Human Rights in Al-Adsani v. United Kingdom and previously held to be correct as a matter of international law by a number of American and English judges (Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992); Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 242 (2nd Cir. 1996); Al-Adsani v. Government of Kuwait and Others (England and Wales, Court of Appeal, 1996), ILR 107, pp. 536, 545, 547 (per Ward LJ); these authorities were, however, unanimous in holding that the relevant domestic statutes prevented them from giving effect to this state of international law).
Lord Hoffmann rejected this submission, stating that ‘the question is whether such a norm conflicts with a rule which accords state immunity’ (para. 43) and going on to find (at para. 44) that

‘[t]he jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom [of Saudi Arabia], in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not. As Hazel Fox has said (The Law of State Immunity (2002), 525): “State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite.”’

His Lordship held, therefore, that there simply was no conflict between the prohibition of torture and the rules of state immunity, so that the difference in rank (jus cogens vs. ordinary customary international law) was nothing to the point. This is supported by a much wider body of opinion (see Christian Tomuschat, ‘L’immunité des états en cas de violations graves de droits de l’homme’, Revue Générale de Droit International Public 109 (2005), pp. 51 et seq.; Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens - Some Critical Remarks’, Michigan Journal of International Law 16 (1995), pp. 433, 435), and is, also in my opinion, quite correct.
To once again quote from Lord Hoffmann’s judgment (at para. 45): ‘To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But, contrary to the assertion of the minority in Al-Adsani, it is not entailed by the prohibition of torture.’ As Lord Hoffmann demonstrated in the following part of his judgment, state practice does not testify to any such new exception.
I would therefore agree that jus cogens was quite immaterial to the question of state immunity before the House, and that a state therefore remains immune from legal process in a foreign state even for its violations of jus cogens.

I have much more difficulty, however, with the second holding of the House of Lords, namely that the state officials alleged to have committed the act of torture also enjoyed immunity.
The ground of immunity in this case is obviously immunity ratione materiae, i.e. the immunity of a past or present state official in relation (only) to his or her official acts.
The reasoning of the House was as follows (omitting the considerations of jus cogens, which are obviously as (ir)relevant to this type of immunity as to the immunity of the state itself):
- It is not true that severe crimes by a state official cannot be regarded as acts of the state itself, and thus as giving rise to immunity ratione materiae. This proposition is unsupported by authority, and deviates from the definition of acts of state as accepted in the law of state responsibility.
- There is not sufficient state practice in relation to immunity ratione materiae in civil proceedings to find that customary law allows for an exception from such immunity where severe international crimes are alleged.
- There is accordingly immunity ratione materiae even in relation to acts of torture. This has not been waived by treaty. In particular, while the UN Convention against Torture of 1984 implies, in its provisions on criminal prosecutions, a waiver of immunity ratione materiae (R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 3)[2000] 1 AC 147), no such waiver is implied in any provision on civil liability.

The second proposition appears to be well-established from the review of such authorities as there are in their Lordships’ judgments. This may be because there have been relatively few attempts to bring civil cases in reaction to the most severe crimes known to international law, but however that may be, there certainly is not sufficient evidence available to find that the rule of state immunity has, in part, been displaced.

The first proposition is much more problematic, in that it appears to fly into the face of the judgment of the House in R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 1)[2000] 1 AC 61. However, the House of Lords explained yesterday that it had never held that severe crimes could not be acts of state in the sense of the rule of immunity ratione materiae (Lord Hoffmann, at paras. 86-88), and Lord Bingham doubted (at para. 19) whether Pinochet (No. 1) still possessed any value as precedent, having been set aside for procedural reasons (In re Pinochet [2000] 1 AC 119) and superseded by Pinochet (No. 3). I do not intend to go into this, except to note that the understanding of Pinochet (No. 1) at the time was always that it denied immunity ratione materiae for severe crimes (see only Jill M. Sears, ‘Confronting the “Culture of Impunity”: Immunity of Heads of State from Nuremberg to ex parte Pinochet’, German Yearbook of International Law 42 (1999), pp. 125 et seq.); yesterday’s holding was therefore most surprising, even if it may have been correct, and was obviously within the powers of the House.
However, there is very much more authority for the view that severe crimes do not fall within the scope of application of immunity ratione materiae, for the reason that they are in no conceivable sense ‘acts of state’ as opposed to culpable acts of the individuals. Without giving exhaustive references now, the line of authority begins with the Tribunals at Nuremberg and Tokyo (Annual Digest 13 (1946), pp. 203, 221, and Annual Digest 15 (1948), pp. 356, 362, respectively), and probably ends with the pronouncements of the ICTY in the Milosevic (paras. 27-34) and Kunarac (para. 494) cases. Some pronouncements to this effect are, furthermore, so brief that they must have been intended as a statement of a well-established rule, not as a new or even bold statement (see e.g. The Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (Objection to the Issue of Subpoena Duces Tecum), at para. 41).
True it is that all these authorities related to criminal proceedings, but the holding was in all cases that the private perpetrators of the relevant crimes could not hide behind the attribution of their acts to the state, and that these acts were accordingly, for the purposes of the question of immunity, not acts of state. This does not mean that the acts in question are no longer attributable to the state, and that the state is absolved of responsibility for them. There are, under this reasoning, two quite distinct concepts of an act of state. The one determines the immunity of the individual, the other the responsibility of the state. There is a difficulty here, but this is only in the terminology.
The authorities cited therefore show that there is a category of cases for which the state will incur international responsibility, but not enjoy the benefit of ratione materiae for its servants. This is ultimately a consequence of the law valuing the accountability of individual wrongdoers over the interests of their states in retaining immunity in relation to all their acts.

The definition of this category of cases attaches to the nature of the acts in question, not to the kind of proceedings in which they will become relevant. The principle of the reduction of immunity ratione materiae therefore applies with equal force to civil as to criminal proceedings.
However, some of the Law Lords in Pinochet (No. 3) added obiter that no exception from immunity ratione materiae could ever apply in civil proceedings for damages, reasoning that in such a case, the state would be bound to indemnify its servants for any damages paid by them out of their own pockets. The Court of Appeal in the case decided yesterday by the House of Lords was unconvinced, holding that such a duty of indemnification could not be reconciled with the duty to prosecute acts of torture (at para. 126, per Lord Phillips of Worth Matravers MR; it is a bit strange that the House yesterday overruled a case in which Lord Phillips had retracted his earlier statements – he had been one of the Law Lords in Pinochet (No. 3) I just referred to, but the House yesterday preferred to hold that his earlier statement was in fact correct).
The House added yesterday that the state would be indirectly impleaded by a case brought against one of its servants for his or her official actions, because its responsibility, like that of the official, would be in the nature of a civil liability, so that the English court would, in stating the civil liability of the official, imply also the responsibility of the state for which he or she was acting (Lord Bingham, at para. 31). I am not convinced. The only negative consequence ensuing from a judgment against a state official would be a deleterious effect on the dignity of the state, in that, to any reader of the judgment, the state would appear to be as guilty and liable as the state official. But this effect would be, if anything, greater if it followed from the criminal conviction of a state servant. Besides, the law of state immunity does not protect the dignity of a foreign state: if it were otherwise, it would have to prohibit also all incidental judicial comment on the lawfulness or otherwise of conduct of another state. This is not the case, as appears from cases like Kuwait Airways Corporation v. Iraqi Airways Co (Nos 4 and 5)[2002] UKHL 19, [2002] 2 AC 883 (where the House of Lords refused to recognise effects of the unlawful Iraqi invasion of Kuwait).

I would therefore prefer to think that a state official can be sued for damages for acts of torture committed by him or her in an official capacity.

This result, as a matter of customary international law, would have the added advantage of removing one problem that has already reduced the meaning of Pinochet (No. 3). The reliance there on a waiver by treaty of an otherwise existing immunity, like the recognition yesterday of persisting immunity and the abstract possibility of such a waiver, suffers from the weakness that any waiver will always be limited to its terms, and to the field of application of the relevant treaty.
So far from making any general statement excluding (as I have attempted to show, in line with considerable authority) any immunity ratione materiae in respect of the most severe crimes, the House even stressed that none of its own previous cases had included any such holding.

This must be regretted.

It will be interesting to see whether the question will be taken on to the European Court of Human Rights, and whether it will engage in any thorough review of the questions of general international law. It clearly can do so, the grant of state immunity to a defendant constituting an interference with the right of access to a court inherent in Article 6 (1) ECHR (Al-Adsani v. United Kingdom, at para. 46-49; the House of Lords yesterday doubted the truth of this, preferring the view of Lord Millett in Holland v. Lampen-Wolfe [2000] 1 WLR 1573 that Article 6 was not engaged in such a case. However, this question of applicability clearly also comes under ‘European supervision’ by the Court, so there is no real difference.). This is, under the Al-Adsani approach, justified if international law really does impose such a rule of state immunity, so the European Court is empowered and required to examine the question of state immunity.
There is, in my opinion, good reason to come to a conclusion different from that the House of Lords reached in yesterday’s judgment, as far as the immunity of the state officials is concerned, while the holding as to the immunity of the state itself probably cannot be doubted.

Why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons

2006-06-14T17:59:00.000+02:00

And why I therefore totally agree with the position of the US State Department.

First I want to apologize for my only casual posting in the last few weeks, but as I said, my time schedule is very tight. Despite the fact that this still is the case, I have to comment on two events from last week, the first of which I will address in this post.

Last week I read an interesting Los Angeles Times article by Julian E. Barnes addressing the Pentagon’s plans to omit the norms found in the Geneva Conventions prohibiting humiliating and degrading treatment while formulating the new Army Field Manual on interrogation.

Said tenet of international humanitarian law can be found for example in Arts. 13 and 14 of the 3rd Geneva Convention and, more importantly, in Art. 3 para. 1 common to all Geneva Conventions. While Arts. 13 and 14 address especially prisoners of war, who have to be treated humanely and to be protected particularly against acts of violence or intimidation and against insults and public curiosity, Art. 3 extends the humanitarian protection to conflicts where the Geneva Conventions would otherwise offer no protection at all, namely to internal armed conflicts. In practice, one can see Art. 3 as formulating the cornerstones of humanitarian protection in armed conflicts that have to be adhered to under all circumstances, even in conflicts where the Conventions normally would offer no protection at all (see Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 52 et seq.).

Art. 3 para. 1 reads:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

According to the article, the Pentagon has been redrawing its policies on detainees for more than a year in order to guarantee that all detainees are treated humanely, and that the US will remain able to question them, and soon wants to present a new Army Field Manual on interrogation and certain rewritten DoD Directives, including Directive 2310.1 (Version of 1994) on detention operations.
The attempt to lower the standard of protection below the threshold of Art. 3 goes back to an order by President Bush given in 2002. The order superseded US military policy, which for decades has granted the Geneva Conventions standard to all its detainees.

In the rewriting of the Directive it seems that there has been a dispute between military lawyers and the US State Department on the one side, supporting a resumption of Geneva standards in the US policy towards detainees, and the Bush administration including the Pentagon’s intelligence arm on the other side.

My arguments on why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons begin, not surprisingly, with some legalistic remarks.

The US has to adhere to the Geneva Conventions, simply because they are legally bound to do so. This may seem a Euro-centric or overly positivistic view of the value of international law to the ears of some lawyers favouring a more ‘realistic’ approach; it is supported, however, by the moral value of the norms in question. Morality is an argument often brought forward by the same lawyers who counsel against the strict observance of international law and an argument often stressed when the US is going to war. The US should therefore in every case observe the basic rules guaranteeing the human dignity it so often claims to defend, and in many cases has defended.
Human rights as well as the principles laid down in humanitarian law formulate the cornerstones of an international system protecting human dignity also against the conduct of states. This is especially true for Art. 3 common to all Geneva Conventions laying down the core principles guaranteeing, as far as possible, humane warfare, as was already shown.

But there are other reasons for the US to observe the rules on detainee protection found in the Geneva Conventions, namely the interests of the US itself, as can be seen from the position of the State Department.
The US has come under severe criticism for many of its actions worldwide; sometimes the criticism is justified, sometimes not. In every discussion concerning alleged or proven abuses of the rules of humane behaviour by US forces, for example in Abu Ghraib and lately in Haditha, it is brought forward that said abuses are connected to the general position of the US administration concerning humanitarian principles.
The detention practice of the US is under special scrutiny since the prison at Guantanamo Bay was founded and since the abuses at Abu Graib, and the criticism is especially severe since the three suicides in Guantanamo last week.
It will be hard to maintain the US government’s position that abuses like those in Abu Ghraib are pure aberrations by individual soldiers, if the official directives themselves no longer reflect the minimum standard of humane treatment of prisoners. It will also be no longer possible to take the position that the US forces acting abroad follow the strictest legal standards, a position often taken by the US government, because formal directives would then say otherwise.
Additionally the credibility of the US in cases like the three recent suicides would be even more damaged as it already is.

It has to be noted here that the publication of the directive as well as other rewritten military guidelines scheduled for April has been delayed because a number of US Senators have asserted doubts on the compatibility of certain rules on interrogation with the anti-torture law issued by senator John McCain last year.
As will be apparent by now, I can only hope that these Senators and the State Department will prevail.

The State Secrets Doctrine: In Violation of International Law? (Part 3)

2006-06-13T17:06:00.000+02:00

Having set the scene with some basic remarks on the international rules involved in the first post, and applied these rules to the political question doctrine in the second, I now turn to the state secrets doctrine. This operates where a case involves state secrets, the disclosure of which would adversely affect national security. The doctrine commands that such disclosure must be avoided by all procedural means available to the court; if there is no way of preventing such disclosure, the plaintiff’s case depending totally on classified information, the case must be dismissed (see United States v. Reynolds, 345 U.S. 1 (1953)).
This state secrets privilege would appear to be primarily a rule of evidence, but the term of the ‘state secrets doctrine’ may be given a broader meaning: where a case depends for its cause of action or for its essential facts on classified matters, the case will be non-justiciable (see Totten v. United States, 92 U.S. 105 (1876); Tenet v. Doe, 125 S.Ct. 1230 (2005), and the discussion of the two cases in El-Masri v. Tenet, available here).

I already stated in the introductory post that there is a right of access to a court under Article 14 ICCPR and that a dismissal based on any of the American doctrines is in principle capable of constituting an interference with the right of access to a court. This is borne out by the jurisprudence of the European Court of Human Rights, which decided as much in two cases concerned with state secrets and court proceedings: Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at paras. 58-63, and in Devenney v. United Kingdom, at paras. 20-22.

Again, this leaves the issue of justification.
It is obvious that there are some state secrets in every state. The considerations of national security behind such secrecy are also a legitimate aim for restrictions on the right of access to a court to pursue (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 76), if the classification of relevant material was ordered in good faith. Nevertheless, where state secrets are not disclosed to a court of law because of these interests, the resulting state of affairs is ‘tantamount to a removal of the court’s jurisdiction by executive ipse dixit’ (i.e. by the executive branch’s own say-so: Devenney v. United Kingdom, supra, at para. 28, citing Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 77). This is not easily acceptable (see also United States v. Reynolds, supra, at 9-10: ‘Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.’).
The right of access to a court therefore demands that the classified information be made available to the court (see El-Masri v. Tenet, supra, where such a possibility under the Classified Information Procedures Act was briefly considered), perhaps with the assistance of special advocates instructed by the court to act on behalf of the parties, while observing the secrecy of the information (see R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, at para. 113, citing with approval Secretary of State for the Home Department v. Rehman [2000] EWCA Civ 168, [2000] 3 WLR 1240, para. 31, where the instruction of such special advocates was regarded as possible even without statutory authorisation, under the inherent jurisdiction of the court; see as to this concept Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528, at paras. 50-53). Alternatively, it may be enough for ‘other mechanisms of complaint’ to be available (Devenney v. United Kingdom, supra, at para. 28), but these would always have to be judicial proceedings before independent and impartial judges (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 77; see also Waite and Kennedy v. Germany (ECtHR), at paras. 68-74).
It would also be permissible in such cases for the court to hold private sessions. While Article 14 (1) (2) ICCPR provides for the right to a ‘public hearing’, public order and national security are explicitly recognized as reasons for excluding the public.

Whatever the solution adopted, the state must always closely examine whether any relaxation of secrecy or adaptation of court procedures can be made in order to secure the right of access to a court at least in part. A court faced with an application in such a case would, for its part, have to examine whether the classification of material had been appropriate (as the court in El-Masri v. Tenet, supra, did); if not, then the legitimate aim of protecting national security would not be engaged, or would not be sufficient to displace the human rights of the private party (see also on this whole issue of judicial oversight in the operation of the state secrets doctrine Jack Balkin’s post at Balkinization; as will appear shortly, I completely agree with his conclusions).
It is furthermore difficult to see how it could be necessary to refuse disclosure even to the judge in chambers (as the US Supreme Court contemplated in United States v. Reynolds, supra, at 10). Disclosing evidence to a judge alone will produce only a very low risk to national security. Furthermore, a court ruling confirming the secrecy of information on certain alleged acts does not imply that such acts have indeed taken place (contra Arar v. Ashcroft, available here, at p. 72 of the PDF file); it means simply that the relevant complex of information is secret. On the other hand, if even the judge in a case is left in the dark, this ‘cannot be said to be conducive to public confidence in the administration of justice’ (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 78). The disadvantages involved in the disclosure of classified information to a judge therefore seem entirely negligible.
Care must also be taken in defining what interests can give rise to legitimate considerations of national security. This is all the more so since the judge will make his or her decision on this point away from the democratic control inherent in the publicity of court proceedings and judgments, and since the outcome will hide even more information from the watchful eyes of the general public. It is certainly not enough that the information concerned, or the outcome of the litigation following the use of such information, may acutely embarrass the government of the day (see Arar v. Ashcroft, supra, at pp. 71-76 of the PDF file, and the comments on the case by David Luban at Balkinization, some of which he repeated here); embarrassment is simply not a danger to national security (this argument does, however, share some ground with the political question doctrine – which I criticized in an earlier post).
For considerations of national security to be properly brought into play, there must be some concrete information on the effects of any disclosure or decision on the dangers facing the state or the operations of state authorities against such dangers (see Lustig-Prean and Beckett v. United Kingdom, where the ECtHR held (at para. 82) that a state had a certain margin of appreciation on the grounds of national security if there was ‘a real threat to the armed forces’ operational effectiveness’, ‘substantiated by specific examples’).
Of course, there is still a danger that ‘national security’ may be used by the government as a catch-all defence (as Julian Ku suggests it might). This is all the more incentive for the courts to exercise their powers of review extensively and their power of dismissing a case under the state secrets doctrine sparingly. Above all, the courts must take care not to become ‘more executive minded than the executive’ (to borrow the famous phrase from Lord Atkin’s ultimately vindicated [see paras. 139-141 of the linked case] dissent in Liversidge v. Anderson [1942] AC 206).

However, it may be that all this scrutiny and care in allowing for some form of judicial process will lead nowhere if properly classified information is so central to a given case that the court could not possibly decide the case, except by extensive reference to the classified material. This would be the case where the cause of action (e.g. a contract) is itself a state secret (as in Totten v. United States, supra), or where the facts complained of in a tort action are completely secret (as in El-Masri v. Tenet, supra). This is where push really comes to shove, as it were, that is to say, where the opposition of state secrets and the right of access to a court is at its most dramatic. In such cases, legitimate reasons of national security may possibly outweigh the right of access to a court enjoyed by a private party to a court case.

The state secrets doctrine may therefore be permissible, so long as the dismissal of the case is only resorted to where no other means of protecting properly classified material is available, and the propriety of treating material as secret is duly considered by the court.

The Political Question Doctrine: In Violation of International Law? (Part 2)

2006-06-12T13:54:00.000+02:00

I now turn to the application of the right of access to a court to the political question doctrine, having set out the basic points about the right in Part 1 of this sequence of posts. I add only very briefly that another case was recently thrown out by the D.C. Circuit, based on the political question doctrine. Much like Schneider v. Kissinger, so also this latest case, Gonzalez-Vera v. Kissinger, concerned US support for General Pinochet (see also Julian Ku’s post on the case at Opinio Juris).

But first, some more detail on the doctrine itself is in order. The leading case on the doctrine is Baker v. Carr, 369 U.S. 186 (1962), and, as the Court later said when quoting from the Baker Court’s analysis, ‘[t]he synthesis of that effort is found in the following passage in the Court’s opinion’ (Davis v. Bandemer, 478 U.S. 109, 121 (1986), quoting from Baker v. Carr, 369 U.S. 186, 217 the passage I  now set out here):

‘Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.’

I have (like the Circuit Court in Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file) added the numbers to show more clearly the distinct ‘Baker factors’ (INS v. Chadha, 462 U.S. 919, 942-43 (1983)). While these may, at first sight, seem easy enough to apply, it has been recognized that ‘the contours of the doctrine are murky and unsettled’ (Bancoult v. McNamara, quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (opinion of Bork, J.); Julian Ku’s blog post on Bancoult is entitled ‘The Ever Murky Political Question Doctrine’).
Nor is it entirely clear quite what the consequences are of an application of the political question doctrine: while Baker v. Carr had insisted that the doctrine went to justiciability and not to jurisdiction (at 198-204), the lower court in Schneider v. Kissinger and Bancoult v. McNamara put the matter under the heading of jurisdiction. This may be supported by later Supreme Court cases (Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)) but I prefer not to express a view on this. It is sufficient to note, for present purposes, that the doctrine puts an end to a case, one way or the other.

So, returning now to international human rights law, is the right of access to a court infringed by a dismissal on the basis of the political question doctrine?

I already stated in the introductory post to this topic that the doctrine does not rest upon public international law and that even if it did, this would not make the right of access to a court inapplicable.

But there is another point on which the applicability of the right of access to a court, and the infringement of that right, may be open to doubt: it has been held that political questions do not present a ‘case or controversy’ within the meaning of Article III of the US Constitution, circumscribing the extent of the judicial task (Flast v. Cohen, supra; Schlesinger v. Reservists to Stop the War, supra). If this definition were accepted as valid, then it might be said that the operation of the doctrine does not infringe the right of access to a court, but merely defines what it is that courts can be called upon to do.
It should be noted in this regard that there is an infringement of the right of access to a court if ‘rights and obligations’ (Article 14 (1) (2) ICCPR) cannot be brought before a court. The right of access to a court therefore demands (absent justification) that all disputes involving such ‘rights and obligations’ be capable of judicial settlement. The above question must therefore be rephrased: the question under Article 14 ICCPR is not whether the courts are recognised as institutionally competent in relation to a given question. The question is only whether ‘rights and obligations’ are at issue; if they are, then the dismissal of such a case would be an infringement of the article.
There must therefore be a legal question, and this must concern the ‘rights and obligations’ of a person. This can clearly be the case, even if the questions raised are of keen political interest. As, for example, the International Court of Justice has stressed time and again, there is a marked difference between legal questions, which may be of political interest, and purely political questions. While courts cannot decide the latter variety of questions, the former category does present legal questions, and therefore falls within the purview of a court of law (see Christian Tomuschat, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: Oxford University Press, 2006), Art. 36 MN 12-14 – or pp. 598-99, for those readers unfamiliar with the citation of commentaries by marginal numbers).
This means that only one category of cases falling under the political question doctrine does not disclose an infringement of the right of access to a court: if there is ‘a lack of judicially discoverable and manageable standards’ (Baker v. Carr, supra, at 217), then there is no legal question, and no ‘rights and obligations’ are concerned (compare Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 230 (1986):  ‘The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.”’ The Court went on to hold (ibid.) that the case at bar ‘calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below.’)
But Baker also established other categories, each of which would give rise to non-justiciability (see Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file). If a court refuses to hear a case, for instance, because of its ‘respect due coordinate branches of government’ or ‘the potentiality of embarrassment from multifarious pronouncements by various departments on one question’, there is a legal question, and if this concerns someone’s ‘rights obligations’ in the sense of Article 14 (1) (2) ICCPR, the dismissal infringes the right of access to a court.

This leaves the somewhat thornier issue of justification. The right of access to a court is an implied right, and the ECtHR has, with its considerable experience in the application of this right, allowed quite a number of exceptions.

It is clear that no justification on the grounds of general international law is available. The ECtHR held in Al-Adsani v. United Kingdom, and again in Kalogeropoulou and Others v. Germany and Greece, that the limitation of the right of access to a court on the grounds of sovereign immunity was permissible so long as public international law really did impose such a duty of judicial abstention on the forum state. However, it has already been stated that the political question doctrine is not based on rules of international law.

There therefore remains the question whether the considerations of domestic law relevant to the doctrines may serve as a justification for their limits on the access to a court.
While it is clear that domestic law, of whatever status, can never conclusively determine a question of international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231), the right of access to a court may be limited by domestic law, if such limitations pursue a legitimate aim and there is ‘a reasonable relationship of proportionality between the means employed and the aims sought to be achieved’ (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (ECtHR), at para. 72). These limitations must not ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (ibid.).

I have already said that even cases involving political questions, in the sense of the political question doctrine, may raise legal questions, and that the right of access to a court demands that all disputes involving the ‘rights and obligations’ of a private person be capable of judicial settlement. In my opinion, this puts paid to most of the arguments in favour of the American doctrine, in that international human rights law specifically rejects the notion that political questions must always fall outside the ‘institutional competence’ (Bancoult v. McNamara, supra) of the courts.
Thus, in effect, the right of access to a court determines a part of the separation of powers by requiring that legal disputes involving the ‘rights and obligations’ of a private person come within the institutional competence of the courts. The fact that the US Constitution does not conform to this, prescribing as it does a different boundary between the judicial branch and the other branches of government, accordingly cannot be taken as a justification. It is no more than the fact of the (potential) violation.
Therefore, while the political question doctrine stands firm in US constitutional law, it frequently cannot be squared with the present state of international law. It has, one might say, been overtaken by events.

Now what does all this amount to? The answer is: not much. US courts regard the ICCPR as non-self-executing (Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)), so they are in no position to apply it (this raises some interesting, and similarly heretic, questions in itself, but since the ICCPR does not require that it is incorporated into domestic law and applied by domestic courts (compare Silver v. United Kingdom [ECtHR], at para. 113 [d]), these questions relate not to international law, but to the US Constitution. I therefore, for my part, abstain from pronouncing on this). So, even if my analysis was correct, nothing is even remotely likely to change.
However, there remains the point (albeit only of academic interest at most) that the United States will in many cases violate international law through the application of the political question doctrine.

It is on this basis that I will address the state secrets doctrine and the act of state doctrine in subsequent posts.

The Political Question Doctrine et al.: In Violation of International Law? (Part 1)

2006-06-09T14:49:00.000+02:00

US courts have recently dismissed quite a few cases as non-justiciable. While these cases may not have a great deal in common otherwise, it is clear that the dismissals prevented the plaintiffs from obtaining judicial relief. It is this aspect that has got me thinking about the compatibility of the various doctrines with international human rights law, and, specifically, with Article 14 (1) (2) of the International Covenant on Civil and Political Rights (ICCPR), which the United States have, of course, ratified (unlike, obviously enough, the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), to which I will nevertheless refer for guidance, the two instruments being very similar).

But first, a very quick summary of the latest cases: a claim in relation to US support for General Pinochet’s coup d’état in 1970 was dismissed as presenting a political question (Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005); see also the blog post on this case by Roger Alford at Opinio Juris), as was a case by the former inhabitants of the island of Diego Garcia, which is now used as a US military base and from which the inhabitants were, prior to the installation of that base, expelled (Bancoult v. McNamara, available here; see also the blog post by Julian Ku at Opinio Juris – I am obviously indebted to Opinio Juris for information on all these cases).
Most recently, a case against the Club Med relating to the use of land expropriated by Cuba in 1960 was thrown out by the 11th Circuit under the act of state doctrine (Glen v. Club Mediterranée, available here; see also, again, Julian Ku at Opinio Juris).
Similarly, a law suit by a German citizen who claimed to have been subjected to the programme of ‘extraordinary rendition’ allegedly pursued by the US administration (i.e., to have been kidnapped and removed for interrogation) was thrown out by a US District Court because it would otherwise have led to a disclosure of state secrets (El-Masri v. Tenet, available here; Julian Ku has kindly commented also on this case).

I will now elaborate on whether the operation of these doctrines involves a violation of Article 14 (1) ICCPR, dividing the whole subject into five posts: this one will attempt to clear up a few basic human rights issues, the second one will address specifically the political question doctrine, the third the state secrets doctrine, and the fourth post will address the act of state doctrine, while the fifth and final post will briefly consider ways around the legal difficulties identified in the earlier posts.

I realize that some may think of the proposition that these time-honoured doctrines may violate international law as heresy of the highest order, but the idea is not entirely without authority, albeit from the United Kingdom: English law knows of its own limitations on justiciability, one of which generally prevents courts from deciding on the meaning of international treaties, unincorporated into domestic law, and another of which prevents courts from ‘adjudicat[ing] on the transactions of foreign sovereign states’ (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA 1116, [2006] 2 WLR 70; the quotation is from Lord Wilberforce’s speech in Buttes Gas Oil Co. v. Hammer [1982] AC 888). When it was submitted to the House of Lords that the operation of these doctrines would violate Article 6 ECHR, Lord Hoffmann said that there seemed to him ‘to be much force in this submission’ (R v. Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 67; the question did not arise squarely for decision; a submission to the same effect was recorded, but not decided by the Court of Appeal in Republic of Ecuador v. Occidental Exploration and Production Co., supra, at para. 49).
When, similarly, the question was put to the House of Lords whether the possibility of judicial review was to be taken seriously where state secrets limited the court’s power of review, Lord Hutton noted that Article 6 (1) ECHR would require the court to adapt its procedure in order to be able to perform its function of judicial review; the presence of state secrets as such could therefore not be allowed to displace the court’s jurisdiction (R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, at paras. 108-114; see also Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (European Court of Human Rights [ECtHR]), at paras. 76-79; Devenney v. United Kingdom (ECtHR), at para. 27). (There may be similar sources of authority in US law, but as I don’t know them, I must hope for some comments in this regard)

Article 14 (1) (2) ICCPR provides for the right to a fair trial. This provides, in the first place, for certain minimum guarantees applicable to an already pending court case. These are not violated by the dismissal of a lawsuit as such, unless there is some decisive unfairness in the proceedings leading to the dismissal. Thus, there is no express provision on a right to submit legal disputes to judicial settlement. But it is also well known that the ECtHR held as early as 1975, in Golder v. United Kingdom, that the right to a fair trial encompasses also the right of access to a court. The Court held (at para. 35) that it was ‘inconceivable (…) that Article 6 para. 1 (…) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.’
This right is clearly capable of being infringed and violated if a suit is dismissed.

As regards the ICCPR, there is some danger of confusion, due to there being two rights of access to a court. The first is the right of equal access to court, a necessary consequence of the right of equality before the courts provided for in Article 14 (1) (1) ICCPR (see e.g. General Comment No. 13 of the Human Rights Committee, at para. 3). This is patently not concerned where a lawsuit is dismissed on the grounds of a lack of justiciability or jurisdiction under any of the doctrines mentioned, so long as these doctrines are applied without discrimination, which they certainly are.
But the practice of the Human Rights Committee also shows the existence of another, more general right of access to a court, derived from Article 14 (1), read together with Article 2 (3) of the ICCPR (see e.g. Evans v. Trinidad and Tobago, Comm. No. 908/2000, at paras. 6.5, 6.6). There may be some uncertainty as to whether this right applies to all lawsuits or only to those contemplated by Article 2 (3) ICCPR, i.e. suits for alleged violations of the Covenant, but this is irrelevant at least to a number of cases dismissed under the various doctrines; El-Masri springs to mind.
Besides, the reasoning of the ECtHR in Golder, quoted above, is easily transposable to the ICCPR. While it might be argued that the wording of Article 14 (1) (2) ICCPR, ‘rights and obligations in a suit at law’, suggests more of a limitation to an ongoing case than does the phrase ‘civil rights and obligations’ in Article 6 (1) ECHR, the addition of the words ‘in a suit at law’ more likely was intended to convey the application to courts only, as opposed to the determination of certain civil rights by administrative bodies, as well as the notion of civil rights and obligations. The notion of the right of access to a court, developed by the ECtHR nearly 9 years after the adoption of the ICCPR, was certainly not on anyone’s mind. In addition, the reasoning in Golder in no way depended on any permissive wording in the article; it proceeded from the guarantees applicable to an ongoing court case, and held that these implied a right to set these guarantees in motion by instituting a case.
I would therefore think that there is a right of access to a court in the terms of Golder also under the ICCPR.

It remains to be seen how the doctrines on justiciability I mentioned can be reconciled with this right – if at all.

It should first be observed, with regard to all these doctrines, that the right of access to a court is also engaged (i.e. may be interfered with by a dismissal), if the dismissal is on grounds that may be described as external to the court, as, indeed, to the whole state (it is, of course, a commonplace that Article 14 ICCPR places obligations not only on the court concerned, but on the state as a whole: see Article 2 (1) ICCPR and compare Guincho v. Portugal (ECtHR), at para. 38).
In this sense, the ECtHR has held that it infringes the right of access to a court to dismiss a case, even if this dismissal is commanded by sovereign immunity (see Al-Adsani v. United Kingdom, at paras. 46-49; repeated in Kalogeropoulou and Others v. Greece and Germany), i.e. by customary international law which the state has no choice but to follow (this goes to the justification of the infringement).
However, the doctrines applied in the American cases cited do not follow from public international law (see Baker v. Carr, 369 U.S. 186, 210 (1962): ‘The nonjusticiability of a political question is primarily a function of the separation of powers.’; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964): ‘We do not believe that this doctrine is compelled (…) by some principle of international law.’), unlike the rules on sovereign immunity at issue in Al-Adsani, and they can in no way be described as external to the United States.
Still, Al-Adsani and Kalogeropoulou show that the presence even of good reasons for a dismissal does not mean that there is no interference with the right of access to a court.

Some other issues are specific to the various doctrines, and will be considered in the following posts.

Warm welcome to the international law blogosphere...

2006-06-09T10:12:00.000+02:00

… to “International Law, Legal Theory and more”, a new blog by Israeli/American scholar/attorney Maja Steinitz.

More new developments in the Lubanga Case - Defence Motion for Release of the Accused

2006-05-24T17:50:00.000+02:00

Exciting new developments in the trial of Thomas Lubanga – after having hinted at the possibility once or twice before, Jean Flamme, Mr. Lubanga’s Belgian defence lawyer, has yesterday file a motion requesting the release of his client.

To – very, very quickly – summarize the motion, Maitre Flamme claims that the arrest and detention of Thomas Lubanga in the DR Congo (from where he was directly transferred to the ICC) were illegal and that this illegality has tainted the proceedings before the ICC in a way that mandates the immediate release of his client.

I will hopefully find the time to go into some more details regarding this question later. For now, let me only note one interesting fact:
As authority for the notion that the illegality of the detention in the Congo is also opposable to the ICC, the motion refers to three decisions – two decisions of the European Court of Human Rights on the concept of “continuing violations”, as well as the ICTR Appeals Chamber’s 3 November 1999 decision in the Barayagwiza case. There, the Chamber, faced with a claim of illegal rendition, had decided to dismiss the indictment and order the immediate release of the accused (while also directing the registrar to deliver the accused to the authorities of the state where he had originally been held). However, what Maitre Flamme fails to note is that in a later decision of 31 March 2000, based on the Prosecution’s (procedurally rather questionable) “Request for Review or Reconsideration”, the Chamber changed this decision and decided that the trial of Barayagwiza should proceed after all, only instructing the Trial Chamber to take into account the illegal rendition in the sentencing phase or to order financial compensation if the accused was found innocent. In the end, Barayagwiza was found guilty and his sentence was reduced from life imprisonment to 35 years (see the judgment at paras. 1106–07).

AFAIK, the ICTY, while also faced with claims (and acknowledged instances) of illegal rendition, has also not ever ordered the release of an accused. It remains to be seen how Pre-Trial Chamber I will deal with this important question.

More on the decision on disclosure in the Lubanga case

2006-05-18T14:18:00.000+02:00

As promised, here is the “quick and dirty” version of the Pre-Trial Chamber I decision on disclosure and the history leading up to it.

First, a little bit of background on the disclosure process as such – a process which is probably very alien to most people with a background in “inquisitorial” criminal procedure. In those systems, the Defence has access – at least in principle and at some point of the proceedings – to the complete case file prepared by the Prosecution and/or the investigating Judge.
In the adversarial system, on the other hand, each party first and foremost collects evidence for its own use, but both parties are under an obligation to disclose certain parts of the evidence in their possession to the other party. (One such system is laid down in Rule 16 of the US Federal Rules of Criminal Procedure, which also forms the basis for parts of the ICC disclosure rules)
In most jurisdictions, this obligation will weigh a lot more heavily on the Prosecution, for two reasons: First, there is an imbalance in that the Prosecution has a lot more resources for amassing evidence, thus fair trial considerations and the principle of equality of arms require balancing measures. Second, broad disclosure obligations on the defence might run afoul of the privilege against self-incrimination.

While the ICC is not a fully adversarial system – to give only one example, the OTP is obliged to investigate not only incriminating, but also exculpatory evidence (Art. 54 (1) (a) of the Statute) –, it does follow the adversarial system with regard to evidence, containing disclosure obligations rather than a right of Akteneinsicht.

While there are a number of provisions dealing with disclosure in the ICC legal texts (Art. 61 (3) and 67 (2) of the Statute, Rules 76 – 84 and 121 of the Rules of Procedure and Evidence), these are not very precise regarding the scope of disclosure obligations and the procedure to be followed. Therefore, after the initial appearance of Thomas Lubanga Dyilo, Judge Steiner set up an interim system of disclosure and invited the parties’ comments on several aspects of the disclosure system – and comment they did, both in writing and at a hearing on disclosure matters on 24 April (The transcript of which apparently is not yet up on the Court’s website). The decision of Tuesday marks the end of this process.

I won’t go into the nitty-gritty details, such as the precise timetable and the deadlines for the several types of evidence to be disclosed, but instead focus on a couple of the most salient points:

First of all, the decision states that disclosure is a process that has to happen first and foremost between the parties (Prosecution and Defence), without any other actors being involved in the process. (The interim system had provided for disclosure between the Parties through the Registry, something which both parties had vehemently protested). To ensure transparency and a permanent record of this procedure, parties are required to file “disclosure notes” or “inspection reports” (depending on the type of evidence) in the record of the case (On this aspect, see paras. 16–27 and 61–76 of (the reasoning for) the decision).

After disclosure between the parties, evidence “disclosed … for the purposes of the confirmation hearing” is to be communicated to the Pre-Trial Chamber (Rule 121 2 (c) RPE). In this regard, the decision makes clear that this only applies to material which the parties intend to use at the hearing – not, e.g., to material the Prosecution has disclosed to the Defence as potentially exculpatory under Art. 67 (2) of the Statute, but which the Defence does not plan to rely on (yet) (see paras. 50–58 of the decision). This is significant in that it sends certain signals about the scope of the confirmation hearing – this will not be a "mini-trial", but will be limited to scrutinizing the evidence presented and deciding whether there is a reasonable basis to proceed with a trial (this is specifically stated in paras. 55–56).

At the same time, Judge Steiner also rejects the Prosecution argument that “the bulk of disclosure” is supposed to occur between the confirmation hearing and the beginning of the actual trial, and instead obliges the OTP to disclose most, if not all, of the disclosable material to the Defence before the confirmation hearing (see paras. 119–131, especially para. 124, of the decision). In fact, drawing an e contrario argument from Art. 61 (9) of the Statute (which allows the OTP to amend the charges after the hearing), she states that, in general, the OTP will not be allowed to continue the investigation in the case after the hearing (paras. 130–131).

More on other developments in the DR Congo situation and the Thomas Lubanga case (such as questions of the participation of victims in the proceedings) soon.

20th ratification of the Protocol on Explosive Remnants of War

2006-05-17T20:05:00.000+02:00

I am a little late with this post (seeing my sporadic blogging these weeks you might guess what my time schedule looks like), but I wanted to comment on the 20th ratification of the Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention) of 28 November 2003.

With this ratification made on May 12th the protocol, which was concluded by 91 states parties to the Conventional Weapons Convention in 2003, reached its quorum and will enter into force in 6 month from that date.

The main problem addressed by the Protocol is that, while there has been major progress in reducing the threat by anti-personal mines, which are also addressed by this protocol, unexploded and abandoned ordnance pose a grave threat that was not an issue in existing legal instruments. According to various sources, the numbers of civilians killed or injured by those forms of explosive remnants of war may come close to the numbers of mine victims (see this Report on Explosive Remnants of War).

The protocol requires the parties to an armed conflict to inter alia clear all unexploded and abandoned ordnance that threatens civilians, peacekeepers and aid workers after the fighting has ended. In detail it obliges the parties to:

- Art. 4: Record information on explosive remnants used or abandoned by their armed forces and share that information with those involved in clearance activities.

- Art. 5 / Art. 6: Take all feasible precautions to protect civilians and humanitarian missions from the effects of remnants of war, including marking and fencing off dangerous areas.

- Art. 3: Survey, mark and clear explosive remnants of war in areas under their control after the conflict.

- Art. 7 / Art. 8: Provide technical and financial assistance for the removal of remnants left by their armed forces in areas not under their control.

What seems interesting to me, in regard to the further development on the ratification status of the protocol, is that normally the problem of weapons control is to balance its humanitarian motives with the military necessity that often suggests the use of the weapons in question.
As I don’t see any military necessity of retaining the remnants of war, I don’t think there is any military interest that prevents states from ratifying the protocol.

Hopefully many states see this as I do and will ratify the protocol as soon as possible; and more important implement it.

ICC Update - Decision on disclosure in Lubanga case

2006-05-16T20:49:00.000+02:00

One of the most interesting developments at the ICC at the moment is the preparation of the confirmation hearing in the case of the first suspect in the custody of the Court, Thomas Lubanga Dyilo from the Democratic Republic of the Congo. (The date for this hearing has been tentatively set for the 27 June 2006)

The purpose of the Confirmation Hearing, as provided for in Art. 61 (7) of the Rome Statute, is for the Pre-Trial Chamber to decide on whether there is “sufficient evidence to establish substantial grounds to believe” that the suspect committed the crimes charged. If the charges are confirmed, the case will then proceed to the actual trial before a Trial Chamber.

One main task for the Pre-Trial Chamber in the preparation for the hearing is to supervise the disclosure of documents and other evidence from the Prosecution to the Defence (and, to a certain extent, vice versa) so that both parties (especially the Defence, which by far does not have the same resources and possibilities for investigation in the field as does the Prosecution) are well prepared for the hearing.

Earlier today, Judge Sylvia Steiner, the Single Judge of Pre-Trial Chamber I, responsible for inter alia the question of disclosure, released the “Decision on the final system of disclosure and the establishment of a timetable”. I will post a first short summary of this decision and the process leading to it soon. In the meantime, the decision itself can be accessed here.

More navel-gazing and some lawyer-nerdyness

2006-05-12T16:19:00.000+02:00

First of all, a quick-round of self-congratulations to our blog for having passed the 1.000 visitor mark – I am sure only about 300-400 of those visits where by Tobi, Nicki and me…

Now for some more ICC-related, if somewhat “lawyer-nerdy” content:

On 10 April, the International Criminal Court and the European Union adopted the “Agreement between the International Criminal Court and the European Union on Cooperation and Assistance”, which entered into force on 1 May.

The content of this agreement, while certainly very welcome for the Court and a sign of the widespread acceptance it enjoys in Europe, is probably not very revolutionary: The agreement lays down a general obligation of mutual cooperation and assistance as well as more detailed rules on assistance (mostly) given to the Court by the EU, such as the provision of documents and information, the testimony of EU officials before the Court, the provision of personnel, facilities and services, and the lifting of privileges and immunities of EU officials who are suspects before the Court.

The question that this agreement poses for me is rather one of general public international law – it concerns the public international law status of the EU. I am not fully up to date on this discussion, but I know that at least a couple of years ago, the prevailing view was that the EU, lacking its own organs that could arrive at a “EU will” separate from that of the member states, was lacking international legal personality – despite its treaty-concluding powers laid down in Arts. 24 and 38 EU Treaty, which it had already used to conclude treaties with several “ex-Yugoslav” states. The other view was that, precisely because of this treaty-making power, the EU was already, or was on the way to becoming, an international organisation with legal personality. (For a rather recent view on this question, see e.g. a short paper presented to the Founding Conference of the European Society of International Law by Carmela Pérez Bernárdez, available here)

All the while, the ECJ has begun breaking down the barrier between the EC and the realm of intergovernmental cooperation under the framework of the EU (“second and third pillar”) – e.g. in the 2005 Pupino judgment (Case C-105/03), where the Court found that Member States are obligated to interpret national laws in conformity with EU framework decisions, thus approximating framework decisions to EC directives.

Given this background, what does the conclusion of an agreement with the ICC – which surely possessed international legal personality (Art. 4 (1) Rome Statute) – tell us with regard to the question of the EU’s status?
Does it mean that the EU must by now have attained international legal personality? Or is it another step on the way towards gradual acceptance as a subject of international law?
And in case the EU still does not have legal personality, what is the status of the agreement? Could it be an agreement with the EU Member States on question concerning their work in the context of the EU?

All questions that I am not going to answer today – it’s Friday afternoon, after all – but interesting questions nonetheless. As usual, comments are very welcome.

ICC postings will begin shortly

2006-05-09T19:00:00.000+02:00

I have finally clarified all the details regarding posting on the blog while I am at the ICC.
In the following days, I will put up a couple of posts to lay the groundwork and show the situation in which the Court finds itself at the moment. After that, I will try to keep up with major new developments as they occur.

Even though what follows should go without saying, let me make two short disclaimers to the ICC-related posts that will follow:

First, what I write in this blog is obviously my own opinion and does not (necessarily) reflect that of the ICC or any of its organs.

Second, I will limit myself to information that is publicly available, especially decisions available on the Court’s website. Of course, having access to other information might sometimes color my reading of the public documents -- to avoid any potential problems, my posting in the next months will probably be a little more restrained and “positivist” than before.

Hamas Legitimises Suicide Bombing: Some Comments

2006-04-22T15:52:00.000+02:00

The Hamas reacted to a suicide bombing which killed nine people and wounded 60 others at a Tel Aviv restaurant on Monday by calling it a ‘legitimate act of self-defense’.

Khaled Abu Helal, a spokesman for the Hamas-led Interior Ministry of the Palestinian Authority said in an interview with Associated Press that: ‘We think that this operation (…) is a direct result of the policy of the occupation and the brutal aggression and siege committed against our people’
(see this very useful Boston Globe article at boston.com).

These statements from members of Hamas have a new quality after the party won the legislative elections in January and took control of the Palestinian Authority last month, as now the official representatives of the Palestinian people are speaking, making it necessary to say some things on the legal situation.

There are many legal problems concerning the applicability and application of international humanitarian law in the Occupied Palestinian Territory. In a previous post I inter alia talked about the question whether there is a state of occupation according to international humanitarian law making at least some norms applicable and (admittedly in an update of said post where I had to correct myself to some degree) about the possibility of a new conflict that has arisen between Israel and the Palestinian people. Taking up my thoughts from that post I want to accept the applicability of international humanitarian law for the purpose of this post.

What I don’t want to do is to talk about the question whether Israel or the Palestinians are fighting a legally acceptable fight or not, I only want to talk about the legality of suicide attacks, especially against civilians, under international humanitarian law.

Concerning suicide attacks it has to be said that they, as such, are not prohibited under international humanitarian law; they are, in particular, not some sort of prohibited treachery or perfidy. Such tactics have been employed, for example, by the Japanese at the end of World War II, especially with the Kamikaze attacks of aircrafts on Allied warships, and it seems impossible to differentiate between suicide attacks (that some possibly want to prohibit) and other situations occurring in wartime situations, for example with soldiers sacrificing themselves for their comrades.

But one thing is totally clear:

From the position of international humanitarian law there is nothing legitimate in attacking civilians, in no conflict whatsoever.

Any intended attack on the civilian population, civilians not participating in hostilities or civilian objects is clearly prohibited under international humanitarian law. This fundamental principle of humanitarian law today is explicitly laid down in Arts. 48, 51 para. 2, 52 para. 2 First Additional Protocol of 1977, but it was already the foundation for many earlier norms (see for example Art. 25 of the Hague Regulations of 1907) and therefore without a doubt has to be seen as part of customary international humanitarian law. (See Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, p. 3 et seq.)

Such attacks on civilians and statements like that given by the Hamas are unbearable, morally as well as legally.

ICC Update

2006-04-20T20:28:00.000+02:00

Because Björn is for the moment not able to post on the developments at the ICC for policy reasons (See his post inter alia in this regard), I would like to refer our readers to a post by Kevin Jon Heller at Opinio Juris: ICC Update.

One Guantánamo Inmate May be British, and May be Freed

2006-04-20T17:04:00.000+02:00

Further to the list of Guantánamo inmates linked by Nicki below, there may well be a change in one the listed cases fairly soon, due to two recent decisions by English courts: R (Hicks) v. Secretary of State for the Home Department [2005] EWHC 2818 (Admin) (High Court of Justice, Queen’s Bench Division, Administrative Court, before Collins J), Secretary of State for the Home Department v. Hicks [2006] EWCA Civ 400 (Court of Appeal, Civil Division, before Pill, Rix and Hooper LJJ).

One of the Guantánamo inmates is Mr David Hicks, who was captured by Northern Alliance forces in December 2001 and transferred to Guantánamo Bay in January 2002. He admitted that he had been to training camps in Afghanistan and that he there received training in weapons and guerrilla warfare.
Mr Hicks was until recently believed to be of Australian nationality, and of Australian nationality only. This did not present the Bush administration with any serious difficulties, as the Australian government had declared that they would in no way challenge the detention of any Australian citizens at Guantánamo Bay, believing that the detention and the planned prosecution before Military Commissions were permissible.

However, Mr Hicks found out recently that he was, by reason of descent, eligible to be registered as a British citizen. This obviously held great appeal for him, because the British government has long been particularly unhappy about US plans in relation to Guantánamo Bay, and has already used its influence to secure the release of British inmates.
Mr Hicks therefore applied to the Secretary of State for the Home Department to be registered as a British citizen. The application was refused on grounds specified in the relevant British Act of Parliament, the British Nationality Act 1981.
Mr Hicks applied to the High Court for judicial review of this decision, and was in the event successful. While the judgment of Collins J of 13 December 2005 is mainly concerned with fine questions of construction of the British Nationality Act 1981, it does make fascinating reading in some parts. In particular, Collins J, a notable international lawyer (otherwise known as Sir Lawrence Collins), made very clear quite what he thought of the regime imposed by the US administration at Guantánamo Bay.
For example, he said that ‘[t]he Military Commission quite obviously does not provide the missing remedy and in any event it is itself an entirely unsatisfactory and potentially unjust means of trying and possibly ordering the very lengthy imprisonment of the claimant’ (para. 12 of his judgment).
More relevantly, he concluded his judgment by stating that ‘[o]nce he is a British Citizen, he should be entitled to all assistance which can be given to a British citizen. There is no doubt that Her Majesty's Government has a discretion as to what assistance should be given (if any) in a given case. But in my view it would be improper to fail to give assistance which would otherwise have been given simply because the claimant was believed to be involved in terrorism and has not had any previous connection with this country’ (para. 39 of the judgment).

The Court of Appeal gave its judgment last Wednesday (12 April 2006), and for its part dismissed the appeal brought by the Secretary of State.
The Court of Appeal did not decide whether the Secretary of State could lawfully revoke Mr Hicks’ citizenship, once it has been granted in accordance with the judgment, so this remains a possibility. However, the Court did decide that Mr Hicks could not be deprived of British citizenship because of the things he had done in Afghanistan in 2000 and 2001. These could only be relevant if he continued to hold views disloyal to the United Kingdom after his registration as a British citizen, and if he said or did anything to this effect from that moment on, for example by expressing approval of his past deeds. A fresh assessment by the Home Department was held to be necessary.
It remains to be seen whether the Secretary of State does find sufficient evidence of any remaining disloyalty to the British Crown, and if any possible decision to revoke Mr Hicks’ British citizenship survives challenges in the English courts.

For now, it appears to be likely that the British government will come under considerable public pressure to also secure the release of Mr Hicks from US custody. Indeed, such a request will probably be formally addressed to the Secretary of State for the Foreign and Commonwealth Office by Mr Hicks’ lawyers, and any refusal on his part may again be reviewed by the courts: see R (Abbasi) v. Secretary of State for the Home Department [2002] EWCA Civ 1316, [2003] UKHRR 76.
Whether the US government will play ball is, of course, another matter entirely.

How interesting to see that Guantánamo Bay leads to so much litigation even in countries other than the United States.
The courts of the United States, in turn, would do well to note that their decisions are closely watched by many other judges around the world.

Pentagon Issues List of Guantánamo Detainees

2006-04-20T16:23:00.000+02:00

The pentagon released a long list, probably the most extensive list until now, of detainees that are or were held at the U.S. operated prison in Guantánamo Bay. (See this BBC-News Article, US Releases More Guantanamo Names; See also the copy of the list and this article on yahoo.com which I found through Opinio Juris.)

The list includes the names and nationalities of 558 detainees. All of them are part of the first official roster of detainees who passed through the Combatant Status Review Tribunal process in 2004 and 2005 to determine whether they should be deemed ‘enemy combatants.’

520 of the listed detainees have been found to be ‘enemy combatants’ by said tribunals, a rather doubtful position under international humanitarian law. According to the US legal position, the status of enemy combatant is equivalent to that of an unlawful combatant which is, again according to the US legal position, a status in between combatants and civilians, giving the detainees neither the rights of an prisoner of war, who inter alia has to be released after the actual fighting ends, nor of a civilian, who has to be indicted for a criminal offence immediately (see for the US position the Supreme Court Case, Ex parte Quirin, 317 U.S. 1, 35 (1942), in which the court developed the position; see also on the current situation US Fact Sheet: Status of Detainees at Guantanamo, February 7, 2002 and White House Presidential Letter, 19 September 2003).

Even if, according to international humanitarian law, there is no status between combatants and civilians (Unlawful Combatants have the primary status of civilians, who have lost their protection under international humanitarian law as they directly participated in hostilities, and as they don’t have combatant immunity they could be indicted under national criminal law for all acts committed, but they have to be indicted. See Knut Dörmann, ‘The legal status of “unlawful/unprivileged combatants”’, RICR 85 (2003), pp. 45, 50, 56; Knut Ipsen, in: Dieter Fleck, The Handbook of Humanitarian Law, Oxford 1995, p. 65) the US is still holding to their position and using it, as can be seen from the list.

38 of the detainees have been found to be non-enemy combatants and 28 of those have been released already.

The release of the list by the Pentagon is the outcome of a court proceeding filed by the Associated Press under the Freedom of Information Act. As I already posted on a proceeding obliging the US to release pictures from Abu Graibh it becomes obvious that much is going on in the US concerning civil rights proceedings and it will be interesting what else will be decided by the US courts in this matter.

Distinctive Emblems Post No 4: The Protection of the Distinctive Emblems and the Gaming Industry

2006-04-18T14:47:00.000+02:00

After Post No. 1 of this serial Post addressed the current developments concerning the distinctive emblems in international humanitarian law, Post No. 2 described the function of said emblems in international humanitarian law, and Post No. 3 turned to the adoption of the third additional protocol, the establishment of the Red Crystal as a new distinctive emblem, Post No. 4, the last Post in this series, will now address the protection of said symbols and the action taken by some Red Cross Societies against the gaming industry (see Post No. 1 for a summary on the situation).

Concerning the protection of the distinctive emblems and their uses through legal norms, one could perhaps derive from the existence of two different functions that there is also a distinction to be made between different abuses of said emblems.
An abuse of the distinctive emblem affecting its first function, the protective one, is by far the more serious one. In armed conflicts, those abuses may gravely endanger human lives as it would undermine the guarantee the emblem grants. Therefore it is obvious that the distinctive emblems have to be especially protected in armed conflict situations. Accordingly, Art. 38 et seq. of the First Geneva Convention of 1949 give a detailed account of who is entitled to protection under international humanitarian law and thus to wear the Red Cross etc. in international armed conflicts. Additionally, the treacherous misuse of that emblems equates to a prohibited perfidy in war with the corresponding consequences (see inter alia Art. 38 of the First Additional Protocol of 1977), and a war crime according to Art. 85 para. 3 lit. f of the First Additional Protocol.
But what norms are protecting said emblems in peacetime, where “only” the second function of the emblems is concerned, and why. According to Art. 44 of the First Geneva Convention, use of the distinctive symbols is allowed only as it is provided for in the Convention, in wartime as well as in peacetime situations. This includes, according to para. 2 of Art. 44, the peacetime use for all operations of the national Red Cross societies, while Art. 53 of the First Geneva Convention explicitly prohibits any use of the distinctive emblems by individuals, societies, firms or companies either public or private not entitled thereto. Art. 54 of the First Geneva Convention obliges states to take the measures required to prevent and repress at all times any misuse of the emblems. The most relevant norms read:

Art. 53. The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present Convention, of the emblem or the designation " Red Cross " or " Geneva Cross " or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.…Art. 54. The High Contracting Parties shall, if their legislation is not already adequate, take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 53

Already Art. 27 of the 1906 Geneva Convention required states parties to enact legislation criminalizing the unauthorized peacetime use of the Red Cross emblem with very clear words:

Art. 27. The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trade-marks or commercial labels.
…

In compliance with these provisions, there are many national laws protecting the emblem. As I know from the letter of the CRC, in Canada these norms are Art. 44 and 53 of Schedule 1 of the Geneva Conventions Act, Section 4 of the Canadian Red Cross Society Act and Sections 9 (1) (f), 10 and 11 of the Canadian Trade-marks Act. In the United States, 18 U.S.C. 706, which protects the Red Cross symbol as a trademark and makes an illegal use of the emblem punishable by six months in jail and a fine of up to $ 500, fulfils the international requirements. In Germany, § 125 OWiG makes the abuse of the Red Cross emblem a summary offence for which a fine can be imposed.

What are the reasons behind those norms? As they are also protecting the emblems from the dangerous misuse in a wartime environment, mainly misuses that are below the threshold of a perfidy, the necessity for protective norms is obvious. Concerning peacetime abuses it seems that there was and is a fear that an unlimited use of the emblems even in a peacetime environment could question their undoubted protective value in the wartime situation, that if the Red Cross would be a too common sight the necessary respect would diminish. All protective norms aim to guarantee that the Red Cross is only connected with the Red Cross movement and the protection it grants in armed conflict situations.
The ICRC Commentary on the First Geneva Convention concerning Art. 53 for example says:

“B. ' Indicatory sign '. -- Although the first care must be to safeguard the protective sign, misuse of the purely indicatory sign must also be relentlessly put down, as it does serious harm to the Red Cross movement [p.385] and diminishes the prestige of the emblem. The public, seeing the red cross on articles that have nothing to do with any form of charitable work (9), may fail, in other circumstances of the most vital importance, to recognize its inviolable character.”

( Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 384 et. seq.)

One possibly could question this fear, saying that the universal knowledge of the Red Cross adds to the protective value. In my opinion however, the Red Cross has to be protected and the norms have their value. The Red Cross was invented as a protective sign and even if the indicative function was added later in order to identify those connected with the Red Cross movement, the protective function remains the main idea behind the symbol and the norms protecting it. Besides, that peacetime misuses could also undermine the protective use as such; the indicative function should therefore be seen as a historical consequence of the protective one. The Red Cross Societies are meant to be a main actor in providing humanitarian aid in wartime situations as it was seen as the first organisation to assist the medical services of the states armed forces, as such explicitly mentioned in Art. 44 of the First Geneva Convention (see also Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 328 et seq.). Additionally, the Societies have the duty to promote the humanitarian thought in peacetime environments inter alia through educational measures in humanitarian law. Those functions make it totally rational to let the Red Cross Societies use the emblems even in peacetime situations in order to connect them with their humanitarian mission and in order to connect their humanitarian work with the symbol, to promote the protective use of the symbol even in a peacetime environment, but only as an exception.
There are other exceptions for uses of the Red Cross Symbol as marking the position of first-aid posts intended exclusively for the free treatment of sick or injured civilians or marking motor ambulances, but all exceptions also have a use for the protective function of the emblems.
As again the commentary on the First Geneva Convention puts it:

“But, at the same time, the advantages must be kept in mind. The red cross has become, in people's minds, the universal symbol of impartial aid to all who suffer, and the welfare work done by the Red Cross, under the cover of the emblem, amongst the population as a whole, benefits by the standing the emblem has acquired as a symbol of immunity. Conversely, esteem for the Red Cross heightens the prestige of the protective sign.”

(Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 330)

Unlike the use of the Red Cross by the Gaming Industry, these are strictly regulated and controllable exceptions.

While the opinions on said question may differ, the cited norms, however, are in force. The states obviously are, or were, of the opinion that the Red Cross has to be protected even in a peacetime environment and I think, without getting to positivistic, this is the law as it is.

In the case of the gaming industry one may therefore conclude that the CRC and the BRC are only acting within a legal framework set up by the states. To some degree one could even say that it is the duty of the Red Cross Societies to protect the distinctive emblems.

What is wrong is the often-heard assumption that the Red Cross is only protected against economical uses (i.e. on products), which is not the case in computer games; every misuse is prohibited, as should become clear from the cited norms.

The only question therefore is why the Red Cross Societies are acting only now. I think that the Red Cross Symbol is used in computer games for more then, I don’t know, 16 years now. It is quite understandable that the gaming community is curious about possible connections with the computer game bashing that is politically en vogue today. Too much violence, far too much sex etc., are often heard accusations today (I am not a gamer, nor a total absentee so I am nearly neutral).

The first question that has been raised in that context is why the Red Cross Societies are only acting against the Gaming Industry and not also against, for example, the movie industry or the producers of health kits using the Red Cross.
In answering this question, it has to be said that the Red Cross Societies are not only acting against the gaming industry. As one can see already from a brochure of the Canadian Red Cross the Societies also act against misuses in the health and retail sector, in catalogues, books and magazines, on commercial vehicles etc. To see how far-reaching the activities of the Red Cross Societies are, one should read the article “Protecting the Emblems in peacetime: the experiences of the British Red Cross Society” by Michael A. Meyer (International Review of the Red Cross, no 272, pp. 459-464) where the author describes the procedure of the protection and some important cases, for example the British Red Cross acting against misuse in the James Bond film “The Living Daylights” or in the health service campaign by the Labour Party (both in the late 1980`s).

The other question, why the Red Cross Societies are acting now is not that easily answered. I have to admit that I do not exactly now how active the Red Cross Societies currently are in acting against peacetime misses of the distinctive emblems.
I can say, however, after some research, that the Red Cross Societies show more activity than in recent years in other cases than that of the Gaming Industry also. In Germany, for example, the Red Cross Society is currently acting against the Rote Hilfe e.V., a private association devoted to paramedical activities around left wing political demonstrations, where, it is thought, a lack of help from the established societies exists. The Rote Hilfe e.V. is using a symbol that shows a Red Cross the upper square of which ends in a balled fist. After the German Red Cross acted in the early 1980’s, several courts denied any danger of confusion and the summary offence proceedings under § 125 OwiG were dismissed.
Currently, after more than 20 years of silence, the German Red Cross raises civil court proceedings against the use of the Red Cross Symbol by the Rote Hilfe e.V. (see on the whole issue: Rote Hilfe e.V. Online, ‘Die Rote Hilfe e. V. wehrt sich gegen die Unterzeichnung einer Unterlassungsverpflichtung des Deutschen Roten Kreuz (DRK)’).
Here also it is unclear why the Red Cross is acting only now.

I can only guess, but there probably is a connection between establishing the new emblem, the Red Crystal (See Post No. 3), and the Red Cross Societies attempting to more actively protect the old ones. I do not know if there is a general plan behind these protective measures or if the Societies where only stirred up by the Third Additional Protocol, but the assumption that there is some sort of connection is not so far off.

Just another Internationalized Tribunal?

2006-04-18T11:03:00.000+02:00

Having safely arrived in the "legal capital of the world", I can now finally get back to blogging.
As the ICC (perhaps understandably) has a rather strict policy on publications of staff members and interns and I am still sorting out what is okay to post and what, I will for the moment not post on new developments at or concerning the Court, but limit myself to other developments in international law.

As reported by the Lebanon Daily Star, Cyprus might be the host country for a UN-Lebanese mixed tribunal to try those suspected of being involved in the assassination of Premier Rafik Hariri. This is in the wake of Security Council Resolution 1664 of 29 March, urging Secretary General Kofi Annan to negotiate the necessary agreements for the establishment of such a court with the Lebanese Government.

At first glance, this may seem like just another step in the proliferation of internationalized tribunals - following on the heels of others in Sierra Leone, East Timor, Cambodia etc.
However, what would set this proposed court apart from such other internationalized tribunals is that it would not be concerned with "core" crimes such as crimes against humanity or war crimes, but "only" with one count of murder.

It seems to me that this is indeed a rather new development - if I am not missing something, the UN has only really been involved in a non-core crimes-related trial/court once, namely in the case of the so-called Lockerbie trial concerning the bombing of Pan Am flight 103 over Lockerbie/Scotland - and this was technically a national trial by a Scottish court, even if it was sitting in the Netherlands (the judgment is available here).

I am not quite sure what to make of this development yet, but it strongly reminds me of the book I am currently reading, "Between Equal Rights" by China Mieville.
In the final chapter of this very interesting and challenging work, Mieville refers to so-called "liberal cosmopolitanism", which (purportedly or actually) aims at bettering the state of the world through the international rule of law and which, accordingly, leads to a shift of perspective in which international relations become more and more concerned with criminalization and "policing".
Might the proposal of a mixed tribunal dealing with "non-core crimes" be a signal for a step into this direction? And what would one have to make of such a development? Surely something to ponder in more detail - I will hopefully be able to add more on this question (and on the subject of Mieville's book) in future posts.

Hat tip to Kevin Jon Heller over at Opinio Juris.

4 April: First International Day for Mine Awareness and Assistance

2006-04-05T19:11:00.000+02:00

The figures are horrible. It is estimated by the UN that there are between 15,000 and 20,000 new casualties caused by landmines and unexploded ordnance each year. An estimated 110 million landmines are strewn across the world in more than 70 countries.

Yesterday was the first international day for mine awareness and assistance in mine action and there were some good reports on this occasion, highlighting the situation with landmines especially in Iraq and Afghanistan, where mines cause a particularly high death toll and are impeding reconstruction and peace process.

As I found no time for posting yesterday, I would like to now make a short remark on the legal situations concerning landmines, as our contribution to the event.

The Ottawa Convention (1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or Anti-Personnel Mines and on Their Destruction) obliging states no longer to use, produce, stockpile and transfer anti-personal landmines has been ratified by 150 states, and thus binds a majority of states to abstain from all activities aggravating the problem. As many important states, however, have not ratified the treaty, it is more than questionable if customary law has yet evolved. According to the ICRC Study on State Responsibility (Jean-Marie Henckaerts/Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Cambridge 2005, p. 282) it has not.
According to that study, states are obliged under customary international law to use landmines with particular care to minimise their indiscriminate effects (p. 281), to record their placement, as far as possible (p. 283), and to remove or otherwise render them harmless to civilians at the end of active hostilities (p. 285).

Some way to go!!

U.S. District Court Holds That There is no Armed Conflict in the Occupied Palestinian Territory - or does it??

2006-04-05T15:40:00.000+02:00

I found a very interesting post at Opinio Juris yesterday, where Julian Ku reports an opinion by the U.S. District Court in D.C.

This opinion seems to be interesting for international law in general, which it is, and for international humanitarian law in particular, which it is not that much.

I don’t want to talk about the question whether the Palestinian Authority is a sovereign state for purposes of the U.S. Foreign Sovereign Immunities Act, which is broadly discussed in the said opinion and where the court heavily consults international law, but I will confine myself to addressing the second question whether an attack on a civilian bus took place ‘in the course of an armed conflict’, again for purposes of the U.S. Foreign Sovereign Immunities Act.

The first thing to say is that in terms of international humanitarian law the question whether an armed conflict exists in international law decides whether humanitarian law is applicable to a given situation. It is indeed disputed if this is the case in the Occupied Palestinian Territory; the line of this dispute has to be drawn between the Israeli government and the rest of the world, including all the major states, the Red Cross, the ICJ and the Israeli Supreme Court. For a full review of the discussion see this policy review at the IHL Research Initiative (registration necessary!).

The question is one of the interpretation of Art. 2 common to the Four Geneva Conventions, which reads:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The Israeli position is that para. 1 and 2 of Art. 2 have to be read separately, saying that international humanitarian law is applicable first, in international armed conflicts, and second, in situations of occupation, but only if the occupied territory formerly belonged to a high contracting party of the Geneva Convention. (See Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’, Harvard International Law Journal 44 (2003), pp. 93-95; Meir Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government – The Initial Stage’, in id., Military Government in the Territories Administered by Israel, 1967-1980: The Legal Aspects, Jerusalem 1982, pp. 38 et seq.)
According to this position, the established situation of occupation in the Occupied Palestinian Territory is no armed conflict. In situations of occupations, IHL would be only applicable if the occupied territory formerly belonged to a high contracting party, what is not the case here, as Egypt and Jordan merely occupied these territories as a result of the 1948 war, before which the territories were under the British Mandate for the League of Nations. Consequently, Egypt and Jordan did not have actual sovereignty over these areas from 1948-1967, and so Israel did not oust a sovereign power when occupying the OPT in 1967.

The counter arguments are clear. Para. 1 and 2 have to be read together, as Art. 2 ensures the applicability of the conventions in all situations of international armed conflict, including occupation (which thus would be a case of armed conflicts). (See Kathleen Cavanaugh, ‘Selective Justice: The Case of Israel and the Occupied Territories’, Fordham International Law Journal 26 (2003), pp. 944, 945).
Additionally it is brought forward, that according to Art. 1 common to the Geneva Conventions the Conventions have to be respected in all circumstances, and that according to the Israeli interpretation the population of any disputed territory would be left unprotected (IHL Research Initiative policy review).
Furthermore the Israeli position is supposed to defeat the purpose of the IV. Geneva Convention, which is to protect civilians and not the rights of a displaced power. (Thomas Mallison/Sally Mallison, The Palestine Problem in International Law and World Order, Essex 1986, p. 257).
The ICJ held in its Advisory Opinion concerning the Legal Consequences of the Contsrucion of a Wall in the Occupied Palestinian Territory of 9 July 2004 (para 101) that all participants in the war of 1967 were High Contracting Parties to the Geneva Conventions, so that the Geneva Conventions would be applicable anyhow.

A US court decision saying that there is no armed conflict in the Occupied Palestinian Territory would probably support the Israeli government’s position, which until now seems to be a lonely stand.

The second thing to say, however, is that the District Court’s opinion, on this point, holds no implications for the discussion under international law. The court solely discusses if the bombing occurred ‘in the course of an armed conflict’ under the U.S. Foreign Sovereign Immunities Act. It indeed recurs to international humanitarian law in that discussion, but in a way that is an affirmation of the position that international humanitarian law is applicable in the Occupied Palestinian Territory and thus, that there is an armed conflict according to international humanitarian law.

The U.S. District Court states in its opinion on p. 20 that:

‘The Court is persuaded by plaintiffs’ arguments and concludes that the statutory phrase “in the course of” necessarily imposes limitations on what “acts” constitute “acts of war” within the meaning of Section 2333(a) – as defined in Section 2331(4). As a matter of law, an act hat violates established norms of warfare and armed conflict under international law is not an act occurring in the course of armed conflict. An armed attack on a civilian bus, such as the one plaintiffs have alleged in the complaint, violates these established norms.’

There could be no violation of established norms of warfare, however, when no armed conflict exists.

Update: I think my thoughts until now remained a little below what was required to really understand the nuances of the decision’s actual link to international humanitarian law. It is true that there is broad acceptance that international humanitarian law is applicable to the situation in the Occupied Territories because they are occupied also in the legal sense. According to Art. 6 of the Fourth Geneva Convention, however, because more than one year has passed since the closing of the military operations that led to the occupation, only some norms are still applicable and then only to the occupying power.
As the U.S. District Court’s decision talked about the violation of the laws of war by a Palestinian, there are no implications at all for the mentioned legal dispute between the Israeli government and all the other parties.
There are, however, implications concerning another question.
If there was only a state of occupation leading to an application of international humanitarian law as described, international humanitarian law would not be applicable to actions by the Palestinians.
As the District Court applied international humanitarian law to the situation, it must have accepted another argumentation that substantiated the application of that law also to the actions of the Palestinians. There are two possible argumentations leading to an application of humanitarian law to the Palestinians also.
The first is the acceptance of an internal armed conflict with all the consequences under international law. One has to know, however, that there are difficulties in that position. If we accepted a situation of occupation in the territories, it is at least no situation like the usual internal armed conflict. It may be concerning intensity of the conflict and its duration, but it is not because the disputed territories are not part pf the Israel territory as such.
The other argumentation is more often herd in the international law society. The Palestinians are accepted as a people, have a single leadership with administrative power and with the control over great parts of their territory (the Palestinian Authoroty) etc. Additionally they have concluded treaties with the Israelis (Oslo), the Palestinian Passports are accepted by many states. If you sum up, you could say that we have no state, but a pre-state, and that humanitarian law, at least the customary rules, have to apply to this conflict also.
(See for example Frits Kalshoven supporting this argumentation or the article of David B. Rivkin, Jr./Lee A. Casey/Darin R. Bartram, ‘A Legal Analysis of the Attacks on Civilians and Infliction of Collateral Damage in the Mddle East Conflict, Kthe Federalist Societyfor Law and public Policy Studies’)

The Israelis agued that “Israel is engaged in an armed conflict short of war.” (The First Statement of the Government of Israel to the Sharm El-Sheikh Fact-Finding Committee, Dec. 28, 2000) which is enough for the application of humanitarian law, but says nothing on the question if internal or not.

It’s not clear which argumentation the U.S. Court prefers, but it seems as if the court applied one of them.

English Court of Appeal holds that the Security Council has displaced the ECHR

2006-03-30T19:37:00.000+02:00

Another English case, and what a remarkable decision it is: the English Court of Appeal (Brooke, May and Rix LJJ) decided yesterday that the Security Council has, by adopting SC Res. 1546 and authorising the Multinational Force to intern people for reasons of national security, displaced the guarantees of Article 5 ECHR, which would otherwise have availed anyone so interned by British soldiers: R (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327.

I already referred to the case and to the problems raised in it in a previous post, on the complaint brought by Saddam Hussein before the European Court of Human Rights. I now return to the issue, as I promised to / threatened to / said I would do.
I feel I should report again the facts and the issues of the case, before turning to the solution chosen by Brooke LJ in his leading judgment (May and Rix LJJ agreed with Brooke LJ’s judgment). I therefore now quote from my earlier post, and apologise for the repetition:

‘In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:
”Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).”
Accordingly, the Security Council gave coalition forces the power to undertake “a broad range of tasks to contribute to the maintenance of security” in Iraq.’ Only the power to order a person’s ‘internment where this is necessary for imperative reasons of security in Iraq’ is relevant to the case of Mr Al-Jedda, who was detained under this power.

The question therefore arises, and was put to the High Court and to the Court of Appeal, whether this power of the United Kingdom enjoyed precedence over any other conflicting treaty arrangements, as provided for in Article 103 of the UN Charter. This article provides as follows:

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

It is to be noted that the article speaks only of ‘the obligations of the Members of the United Nations’ (emphasis added) and not also of their powers. This point was one of the cornerstones of Mr Al-Jedda’s arguments.
The High Court rejected this argument on the grounds that the Security Council cannot have intended the scope of its authorisation to vary depending on whether and to what extent the various states forming the Multinational Force were bound by human rights treaties.
Without rejecting this approach, Brooke LJ in the Court of Appeal took a different route: he referred to the commentary on Article 39 of the UN Charter by Professor Frowein and Dr Krisch in Charter of the United Nations – A Commentary, 2nd edition, edited by Prof (and now Judge) Bruno Simma and others, at p. 729 (Art. 39 MN 33), where it is explained that measures taken by the Security Council under Article 42 of the UN Charter were originally intended to be carried out by the UN itself, using troops provided for that purpose by the member states. Of course, it never came to this, and the Security Council has instead authorised member states to carry out military operations themselves, within a mandate granted by the Council. Therefore, so Professor Frowein and Dr Krisch argue, the effect of the authorisations granted must be assimilated to action taken by the Council itself, and Article 103 must therefore apply not only to ‘obligations’, but also to such authorisations.
Brooke LJ (at paras. 69, 74) directly applied this opinion to the case before him, implying that the alternative to the authorisation expressed in SC Res 1546 would have been for the Council to carry out the military operations through troops put at its own disposal.

I would respectfully agree that Article 103 of the Charter must be considered as applying also to authorisations by the Security Council, but the reasoning offered by Professor Frowein and Dr Krisch does not seem to be properly applied to the case at hand: Article 42 of the Charter speaks of ‘such action by air, sea or land forces as may be necessary to maintain or restore international peace and security,’ but in so doing it clearly refers not to just any action by military units, but specifically to enforcement action ‘against a State’: see the explanations of Prof Frowein and Dr Krisch at p. 754 (Art. 42 MN 12) of the Simma Commentary. Indeed, the Appeals Chamber of the ICTY clearly stated that ‘these [measures under Article 42] are measures of a military nature, implying the use of armed force’ (The Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 33; it is clear that ‘armed force’ in this statement means force used against a state, not against a person).
The authorisation granted by SC Res 1546, relevant to this case, would therefore appear to be based on Article 41 of the Charter (Brooke LJ said at para. 59 that Article 41 was ‘not material to this appeal’).
This difference would seem to be without any consequences, as it is at the very least arguable that Article 103 of the Charter applies also to authorisations of the Security Council under Article 41; in particular, the reasoning of the High Court appears to be rather attractive: the Council’s authorisation was to the Multinational Force, not to the states making up the Force individually. There is therefore much force in the argument that the authority to be conferred was intended to be the same for all participants of the Force. Besides, any other interpretation would mean that there would have mean one particular extent of powers in one area of Iraq, and a very different set of powers in another area, controlled by a different state. This does not appear likely to have been the intention of the Security Council.
This interpretation would also take care of the argument that the resolutions of the Council must be interpreted so as not to interfere with recognised human rights. This is probably true, as it may be deduced from the – admittedly somewhat unspecific – references to human rights in the Charter (in the preamble and in Articles 1, 55 and 56), but it is only a rule of interpretation and must in this case yield to the other considerations.

The Court of Appeal did not consider whether SC Res 1546 infringed jus cogens. Any such conclusion would probably have meant that the resolution was ultra vires, and that not only international jus cogens, but also Article 5 ECHR, would have remained unaffected, for the simple reason that the resolution would have been void (see Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, European Journal of International Law 16 (2005), pp. 59, 82-84).
It may well be that the prohibition of arbitrary detention has achieved the status of jus cogens (see The American Law Institute (ed.), Restatement of the Law, Third, The Foreign Relations Law of the United States, vol. 2, 1987, p. 175), but SC Res 1546 has not gone so far as to allow this. The detention of Mr Al-Jedda was regularly reviewed, it was based on the conditions stated in the resolution and in the letters attached to it, including the adherence to the law of armed conflict.

I would therefore think that the Court of Appeal was right to uphold the power of the Security Council to qualify the protection afforded by Article 5 ECHR.

DoD Agrees to Issue Abu Ghraib Images

2006-03-30T17:54:00.000+02:00

The US Defence Department (DoD) on Tuesday withdrew an appeal challenging a US District Court Order of 2 June 2005, which requires the US Government to turn over to civil rights groups 74 photographs and three videotapes showing abuses at Abu Ghraib prison. The exact wording of the Stipulation and Order of Dismissal of Appeal by the Court of Appeals for the Second Circuit shows that the parties have agreed on the circumstances of the DoD’s execution of the order by Judge Alvin K. Hellerstein.

The order was the sequel to a lawsuit under the US Freedom of Information Act filed against the DoD by the American Civil Liberties Union (ACLU) and other civil rights groups in October 2003 in order to get hold of documents related to abuse of detainees held in U.S. custody abroad. Said lawsuit has, according to ACLU, resulted in the release of more than 90,000 document pages. (For more information on the original proceeding see the ACLU News page) Most of them were duly released by the government, which, however, until now opposed the specific request relating to said photographs and videotapes.

What is especially interesting from the perspective of international humanitarian law is, that in its opposition brief of 30 March 2005 and in two expert declarations (one by Edward R. Cummings, one by Geoffrey S. Corn), the DoD argued that turning over visual evidence of abuse would violate the United States’ obligations under the Geneva Conventions (all documents available from the related ACLU page).
Next to the fact that the US Government invoked the Geneva Conventions, the first thing of interest is that the parties agreed on the applicability of the Geneva Conventions.
The question on the interpretation of the norms of the Geneva Convention seems to be even more interesting. The relevant articles in the Third Geneva Convention obviously are Article 13, 14 and 27. Art. 13 states that prisoners of war "must at all times be protected […] against insults and public curiosity", Art. 14 entitles prisoners of war to "respect for their persons and their honour," while Art. 27 provides for the protection of all protected persons against, inter alia, public curiosity.
The protection of the prisoners against public curiosity also was the main line of argumentation of the US Government, which was obviously declined by Judge Hellerstein, who followed the argumentation of the ACLU which was as follows:
There is a major interest of the public to know of the abuses of prisoners by US officials, even to see all the existing pictures, and therefore the government is under an obligation to publish said pictures because of the Freedom of Information Act.
The publication could possibly be problematic under the Geneva Convention, but the problem could definitely be solved by modifying the photographs to render the subjects unidentifiable.

Now that the DoD has withdrawn its appeal, this position seems to be the accepted interpretation of both the Freedom of Information Act and the Geneva Convention.

See also at CNN.com and the News at ACLU for more information.

UK House of Lords Decides on the Crime of Aggression

2006-03-30T15:12:00.000+02:00

The UK House of Lords yesterday gave judgment in a very unusual case, which had their Lordships delve deep into international law, raising as it did the question whether there was a crime of aggression in international and English law: R v. Jones (Margaret) [2006] UKHL 16.

First, the facts of the case(s): shortly before hostilities began in Iraq in 2003, the appellants entered bases of the Royal Air Force (RAF Fairford) and other military installations and committed acts of criminal damage there, intending to disrupt preparations for a war which they felt was illegal. All were consequently charged with several offences, among them criminal damage, conspiracy to cause criminal damage, aggravated trespass and attempted arson.
Their defence was based on provisions in the relevant criminal enactments and stated that the appellants had been acting to prevent a crime, namely the international crime of aggression that was about to be committed by the United Kingdom and the United States of America, as well as their respective organs.
The trials on these charges have not yet taken place, but the question of whether there was such a crime under international and English law, and the question of its justiciability, went through the hierarchy of the English courts as a preliminary question, to be settled before the trial proper could commence.

The House of Lords was therefore required to decide whether the crime of aggression existed in English law. Several routes by which this could have happened were put to the House, all of which proceeded on the assumption that there was such a crime under customary international law.

Basing itself to some extent on the Nuremberg Charter and on the judgment of the International Military Tribunal at Nuremberg, the House clearly held that the crime of aggression existed in customary international law.
In doing so, the Law Lords did note, of course, that the crime of aggression was and remained the subject of very considerable debate and disagreement in the international community, and that the International Criminal Court is not presently competent to deal with it (Article 5(2) of the Rome Statute provides that the ICC shall not exercise its jurisdiction over the crime until it has been defined), but this was not decisive.
Lord Bingham of Cornhill stated in this regard:

‘It is true that some states parties to the Rome statute have sought an extended and more specific definition of aggression. It is also true that there has been protracted discussion of whether a finding of aggression against a state by the Security Council should be a necessary pre-condition of the court’s exercise of jurisdiction to try a national of that state accused of committing the crime. I do not, however, think that either of these points undermines the appellants’ essential proposition that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.’

Lord Hoffmann made the same point when he said:

‘It is true that there is at present no consensus about the circumstances in which the International Criminal Court should exercise its jurisdiction to try the crime of aggression and in particular whether the imprimatur of the Security Council should have to appear on the indictment. But I think that upon analysis it will be found that these disputes are not about the definition of the crime but about the circumstances in which the International Criminal Court (as opposed to some domestic or ad hoc international tribunal, such as the International Military Tribunal at Nuremberg) should try someone for committing it. Of course the definition of a crime so recent and so rarely punished will have uncertainties. But that is true of other crimes as well. If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.’

The approach is therefore that a crime is not ill-defined in its entirety and therefore incapable of supporting charges, convictions and sentences if only parts of it remain unclear. The core of the crime remains well-defined and an act falling under it remains criminal, no matter what the case may be in other situations which may fall under disputed parts of the definition. A similar approach appears to have been taken by the House of Lords to a criminal offence at common law: R v. Rimmington [2005] UKHL 63, [2005] 3 WLR 982.

The conclusion that the crime of aggression existed under customary international law (also supported by Lord Mance at para. 99) was not, however, decisive. For the defences raised by the appellants to be arguable, the crime averted by their offences had to be one under English law.

It was, at least broadly, accepted that customary international law formed part of English law (Lord Bingham, at para. 11, saw some force in the submission that international law was not so much part, as one of the sources of English law; the matter did not arise for decision). However, it did not follow that customary international law could therefore automatically, i.e. without the need for any domestic enactment, create new criminal offences. This proposition was unsupported by authority (Lord Bingham, at para. 23), contradicted by the previous practice of transposing offences under international law into English law by means of a statute (Lord Bingham at para. 28), and it would create grave problems of legal certainty (Lord Bingham, at para. 23). Also, the rule by which questions of the legality of acts of a foreign state would in principle be non-justiciable (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA Civ 1116, [2006] 2 WLR 70, as recent and exhaustive authority) was another factor suggesting that the crime of aggression could not be considered as a crime under English law (Lord Bingham, at para. 30; Lord Hoffmann, at paras. 63-67, Lord Mance, para. 103).

The other arguments brought forward by the appellants also failed: the defences relied on by the appellants could not be interpreted to extend also to the prevention of crimes against international law, and English law could not be shown to itself know of any crime of aggression. As to the latter point, it is, of course, to be noted that English courts do not retain any power to create new offences: Knuller (Publishing, Printing and Promotions) Ltd v. Director of Public Prosecutions [1973] AC 435; see also Lord Hoffmann, at paras. 60-62 of his speech in Jones).

For all these reasons, the challenge by the appellants failed, and the defences concerned will not avail them at their trials (nor would they have been available if there had been any English crime of aggression, as the right of self-help reflected in the defences concerned was also held to be of a subsidiary nature; recourse to help from the police or the courts would, wherever possible, take precedence: Lord Hoffmann, at paras. 73-88).
What is perhaps more, the appellants have also failed in their attempt to have the House of Lords (or, for that matter, the other English courts) pronounce on the legality or otherwise of the Iraq war. It may be doubted whether this was their principal aim, but it will certainly have played a role in their raising this particular defence.

However, the House clearly held that a crime of aggression existed, if not in English law, then nevertheless certainly in international law. This should be welcomed.

Postscript on Civil Wars

2006-03-30T13:59:00.000+02:00

After I posted on the question of whether there is a civil war going on in Iraq or not a few days ago (and edited the post twice), it seems that I became more attentive to the internal conflicts going on in the world that are or are near to civil wars.
I looked a little bit more curiously into the news and found it utterly devastating how many conflicts there are on a scale like the one in Iraq, more or less qualifying as civil wars. We live in a world of conflicts and I think one has to bear that in mind when writing about questions of international humanitarian law, human rights and international criminal law.

In the last few days, my attention was called for example by the fighting between rival militias in Mogadishu, Somalia, going on around 23 March, which was covered on IRINnews.org. The fighting obviously went on between two militias, the Alliance for Peace and the Fight Against International Terrorism and the Islamic Court Militia; over 70 people died in the fights of two days alone, and 100 were wounded. I think the legal situation there is as complicated as the one in Iraq but the conflict seems to be more openly fought.
The fighting in Nepal is covered by a Human Rights Watch report released two days ago. There, Maoist rebels and government forces are engaged in a conflict that seems to spiral out of control, and which clearly qualifies as a civil war.
The same is obviously true for the situation in Myanmar, covered in this ReliefWeb article, where the military has since February been acting with brute force, obviously in an attempt to prevent a supposed attack on the junta’s new capital by the Karen National Union.

And all THAT is only from some reports from the last 7 days!

Navelgazing post (Bjoern)

2006-03-28T18:15:00.000+02:00

Apologies to our readers for intermittent posting in the last weeks – I was busy with an application process, which has lead to great results for me: For the next six months starting April 3rd, I will be clerking for Judge Hans-Peter Kaul at the International Criminal Court.

Expect more light blogging for the next two weeks or so as I search for accommodation and become accustomed to my new surroundings. After that, I hope to be able to bring you an inside perspective on what’s going on at the ICC (within the limits prescribed by my confidentiality agreement etc., needless to say).

The US Defense Department's considerations on evidence obtained through torture

2006-03-26T13:07:00.000+02:00

According to some reports in the US media, the US Defense Department is considering whether to make a formal rule, or has already made the rule, to the effect that the Military Commissions established to deal with the criminal indictments against the detainees at Guantánamo Bay may not use evidence obtained through torture. According to the reports, a senior Pentagon spokesman has said that the commissions would never have treated such evidence as admissible anyway, but that the proposed rule was designed to ‘eliminate any doubt in people's mind that the Convention Against Torture, specifically Article 15, is applicable to these commissions at Guantánamo.’

Specifically, Article 15 of the UN Convention against Torture of 1984 provides as follows:
‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’

This makes clear that no statement extracted by torture can ever be admissible in any court of law, regardless of where and by whom it has been so obtained. Indeed, this point was affirmed with very considerable force by a recent judgment of the UK House of Lords (A v. Secretary of State for the Home Department [2005] UKHL 71, [2005] 3 WLR 1249).
There, the House of Lords had to rule on whether the use of statements extracted by torture was permissible in proceedings before the UK Special Immigration Appeals Commission, for which a legislative provision stated that it would not be bound by the ordinary rules of evidence under English law. This is clearly a similar situation to that existing with regard to the United States’ Military Commissions.
The House was unanimous in holding that there was a rule of English common law excluding all statements made under torture from all proceedings before any judicial body. This followed from the revulsion of torture which the common law had held at least since the 17th century. It was also very forcefully decided that the statutory rule freeing the Special Immigration Appeals Commission from the usual rules of evidence, such as the hearsay rule, could not have the effect of displacing the principle of common law against statements obtained by torture. The rule was far too fundamental for this to be possible. Considering that the Court of Appeal had taken a different position below (A and Others v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 WLR 414), Lord Bingham of Cornhill added (at para. 51):

‘I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.’

The United States would be well advised to take the same position.

For one thing, US law has inherited the attitude to torture which has prevailed in England since well before US independence (perhaps surprisingly, even Justice Scalia’s dissent in Roper v. Simmons may be read to allow for US courts having regard to such old rules of English law).
In fact, some members of the House referred specifically to the United States in their speeches. Lord Hoffmann’s remarks are clearly the boldest in this respect; making the point that torture was always ‘dishonourable’, his Lordship said (at para. 82):

‘In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal “rendition” of suspects to countries where they would be tortured (...).’

The Economist later reported that this snide remark had ‘left the Bush administration fuming’ (issue of 16 December 2005, at 40).

Lord Hope of Craighead for his part recounted an instance of ‘extraordinary rendition’ that occurred between England and Scotland in 1684, and added (at para. 107):

‘There is a warning here for us. “Extraordinary rendition”, as it is known today, is not new. It was being practised in England in the 17th century.’

Furthermore, the House also referred at some length to the relevant rules of international law, specifically Article 15 of the UN Convention against Torture, and was very clear that the Convention required the conclusion reached by their Lordships under the common law (Lord Bingham of Cornhill, at paras. 35, 52; Lord Hope of Craighead, at para. 112).
Furthermore, the use of statements made under torture clearly also violates the right to a fair trial, guaranteed in Article 6 ECHR and Article 14 ICCPR (Lord Bingham of Cornhill, at para. 52).

The House was divided on whether evidence would also be excluded if there was only a real risk, but no firm evidence, that the witness statement concerned had been procured by torture. This problem is clearly quite relevant in the war on terror, where information may have been provided by foreign states, and where many hold such strong feelings against terrorist suspects that incidents of torture cannot be excluded in anti-terror operations and interrogations (this may not, however, be relevant to the charges of torture relating to Camp Delta at Guantánamo itself).
A narrow majority ruled, based on the wording of Article 15 of the UN Convention, that a statement would have to be ‘established (...) to have been made as a result of torture’ (Article 15). This argument is highly convincing as far as Article 15 is concerned, but the right to a fair trial may be another matter. There, the arguments advanced by the three most senior Law Lords remain to be considered. They believed that the exclusionary rule found would be rendered meaningless if it depended on the knowledge that torture had in fact been used. Such information is unlikely to be provided where the act of torture was committed by a foreign state.

But whatever the details of the exclusionary rule, it is good to see that the US government has expressed the correct opinion, and has reminded the Military Commissions – whether by a formal rule or by the simple restatement quoted above – of their duties under the UN Convention. This is obviously extremely welcome, particularly considering that the Military Commissions do not exactly stand as a paragon of virtue in other respects.

(Incidentally, the statement by the Pentagon spokesman may be construed as giving up on an opinion previously expressed by the US: when the US ratified the Convention, a declaration was added, stating that the whole of the Convention was not self-executing (see W. M. Cohen, ‘Implementing the U.N. Torture Convention in U.S. Extradition Cases’, Denver Journal of International Law and Policy 26 (1998), pp. 517, 519). If this was an interpretation, rather than an authoritative determination for the purposes of domestic law, it would mean that Article 15 could never be applicable to any particular court, but that it only required the US as a state to adjust its domestic law to accord with the Convention. This view finds precious little support in the article itself, and it is again good to see that the Pentagon has not made any such claim)

Bush denies Iraq is in Civil War

2006-03-22T14:45:00.000+01:00

While Iraq's former interim Prime Minister Iyad Allawi told the BBC 50 to 60 people were dying every day and that the country was in civil war, US President George W Bush on Monday said he does not believe Iraq has descended into civil war. (BBC-News, Bush denies Iraq is in civil war, Tuesday, 21 March 2006)

The questions raised, concerning international humanitarian law, are what is a civil war, is the question of any legal relevance and is the Iraq in a state of civil war.

A civil war is a war between two or more groups of inhabitants of the same state. Different kinds of civil wars are acknowledged, the classical ones being fought for control of the government or of a part of the territory of a state.

Converting this definition into legal terms, a civil war is the classical example of an internal armed conflict (Oeter, Civil War, in: EPIL I, ), so that some norms of international humanitarian law apply. Common Art. 3 of the four Geneva Conventions of 1949 extends some of the more basic norms of international humanitarian law also to internal armed conflicts and thus civil wars and Additional Protocol II of 1977 goes even further than Art. 3 (AP II however according to Art. 1 has a relatively high threshold for application).
Concerning other parts of the Laws of war, for example the right to search foreign ships etc., the question of applicability is decided by the recognition of the rebels as belligerents.
If they are recognized as such by the government, making them subjects of international law, the laws of war fully apply for the conflict.
Another legal question of major relevance is the right of other states to intervene in that war, either on the side of the rebels or of the government. While help given to rebels generally has to be seen as prohibited, the situation is disputed when help is given to the government.

The question if there is a civil war in Iraq and which consequences that would have is difficult to answer, probably even impossible at this stage. I only want to outline the problems and the possible answers. (I am already working on one or two longer posts so I don’t have the time to review the whole situation in depth, which would cost me a week or so seeing all the problems raised)
The first remark has to be that the activities of foreign fighters/terrorists obviously do not count in determining if there is a civil war going on in Iraq. Only if the Iraqi ethnic/religious groups are fighting each other or the government could this amount to a civil war. One thing is not that clear in that context: does it count if those groups fight the American troops stationed in Iraq. This is a question that only could be answered if one first answered the question whether the US occupation has ended by the elections for the new Iraqi government (or before that date), an at least disputed question.

The articles by Daniel Thürer and Malcolm MacLaren, ‘Ius Post Bellum: A Challenge to the Applicability and Relevance of International Humanitarian Law’, in: Liber amicorum Jost Delbrück, Berlin 2005, pp. 753 et seq. and Knut Dörmann and Laurent Colassis, ‘International Humanitarian Law in the Iraq Conflict’, 47 GYIL (2004), pp. 293 et seq. both give a good account on that question.

If one said that the occupation has ended and that the US Troops are supporting the Iraqi government on its own account, there would be no problem. Fighting the US Troops would equal fighting the Iraqi government. But if one is of the opinion that the US still occupies Iraq, fighting the US Forces is not part of a possible civil war (then, however, international humanitarian law would apply at least to the US Forces according to and to the amount specified in Art. 6 of the Fourth Geneva Convention of 1949).
Even if one only takes into account the fighting between the Iraqi ethnic groups, one has to say that the question of the existence of a civil war is not easily answered. There are bombings and armed clashes which clearly have an inter ethnical/religious character. See for example the bombing of the golden-domed mosque in the city of Samarra and the related demonstrations and armed clashes that erupted across southern Iraq last month. (See Michael Howard, Iraq slips towards civil war after attack on Shia shrine, The Guardian, Thursday February 23, 2006) Often these incidents are so severe, that here or there somebody calls it a civil war. (For a list of official or quasi official statements pointing in that direction see Think Progress, Bush Ignored Warnings Of Iraqi Civil War)
But I probably (seeing my fragmentary insight into the facts) would agree that there is no civil war yet, at least not in the legal meaning of the word. The occasional bombings and even some minor armed clashes do not amount to a civil war, even if they are as frequent as they are in Iraq. A civil war has to be more structured and openly fought, not that terrorist-like. I admit that Iraq seems to be at the fringe of a civil war, seeing that ethnical frictions worsen with any bombing and any incident.

Another problem is how one should know who attacked whom. That may be the main problem to decide

UPDATE: Because I really was not sure about my insights into the facts and thus my conclusion, I looked into all the newspapers reports on Iraq. I still think that there, at the moment, is no civil war in Iraq. The structure of the conflict is, as I said, too fragmentised and it is fought too secretly, in order to qualify as a civil war. The distinction however is a hard one, because a secretly fought war of course can qualify as civil war, the issues are, if the incidents occur often enough and if it is clearly fought one group against another or a group against the government. Both seem to be tricky issues, concerning Iraq.
One big issue in my argumentation so far was that the terrorist attacks don’t count. It seems however, that a major share of the violence in Iraq can be attributed to Militias of either Shiite or Sunni allegiance. The New York Times had a good article written by Jeffrey Gettleman and John O’Neil on this issue. That makes the decision concerning the civil war even harder. It seems clear that to destabilize Iraq is a major objective behind most of the attacks, but to what end? I think, taking all I know together, that the threshold for a civil war has not been reached jet, but it’s a close call.

Distinctive Emblems Post No 3: The Red Crystal

2006-03-22T10:03:00.000+01:00

After Post No. 1, where I addressed the current developments concerning the distinctive emblems in international humanitarian law, and Post No. 2, where I described the function of said emblems in international humanitarian law, I will now turn to the adoption of the Third Additional Protocol, the establishment of the Red Crystal as new distinctive emblem.

Seeing the importance of the emblems in armed conflicts the question this post wants to address is why there was a need to draft a convention establishing a new emblem, the Red Crystal.

An interesting starting point for this question is the historical fact that for a long time there were attempts to prevent symbols other than the Red Cross from acquiring the status of a protective sign under international humanitarian law. When the Red Cross was officially adopted in 1864 it was regarded as essential to have one single uniform emblem only.( Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 300 et seq.) There are some obvious advantages if only one international symbol is generally accepted. Misunderstandings could be prevented, prejudices against emblems used by a single state can be avoided. However, already in 1876, Turkey, which had acceded to the Geneva Convention in 1865, notified the Swiss Federal Council that its Medical Service would display a red crescent instead of a red cross, because the latter sign was offensive to Muslim soldiers due to the history of the crusades.(Pictet, p. 298) Turkey, in demanding an exception from the obligation to use the Red Cross as a protective sign was later followed by Egypt, also running the Red Crescent, and Persia, running a Red Lion and Sun instead of the Red Cross (Iran did so until 1980 when it adopted the Red Crescent (ICRC, Notes, About the adoption of an additional emblem: questions and answers.)). After a diplomatic struggle the positions of those three states were legally accepted in 1929 but only as an exception effective for those states. It was clear that this arrangement was made to suppress any further claim for exceptions; however, several Muslim States adopted the Red Crescent even after 1929. (Pictet, p. 299.) Contrary to these developments there was a strong tendency to return to a single emblem up to the negotiations on the 1949 Geneva conventions, because it was seen as illogical as well as dangerous to replace a uniform, internationally accepted sign, devoid of any religious implications, by a variety of national or religious emblems. In the negotiations of 1949 this position had to face other claims by states to accept other exceptions to the Red Cross symbol. Together both positions cancelled each other out, leading to a cementation of the status quo in the 1949 Geneva Convention, saying that the exceptions, Red Crescent and Red Lion, are accepted but only for those states already using those symbols prior to 1949. (Pictet, p. 299.)

Seeing this development it becomes clear that the Third Additional Protocol and the Red Crystal had to come up with good solutions for grave problems in order to overcome the established desire for one single uniform emblem.
So what are the reasons leading to the adoption of the Third Additional Protocol despite those desires? The first problem that the Red Crystal has been designed to solve becomes obvious from the history of the three today accepted symbols. The Red Cross as a symbol until today is often understood as having religious connotations and it has to be said that this is not so far off. The Red Cross is chosen as the protective sign in international humanitarian law in honour of Henry Dunant and his country of origin, because it was felt that it would embody the fundamental principles of neutrality. It was designed as a negative of the Swiss flag (See Art. 38 First Geneva Convention of 1949), often leading to the assumption that there is no religious background. (See for example the statement of the head of the delegation of the Holy Sea, Final Record of the Diplomatic Conference of Geneca, 1949, Vol. II A, p. 150; or ICRC, Notes) The Swiss flag however deduces from Christianity in all “legends” told to explain the origin of the symbol.( See Kopp, Schweizerkreuz, in Historisches Lexikon der Schweiz) So even if the choice of the drafters of the Geneva Convention of 1864 definitely had no religious implications, the roots indeed may have been religious, although this is not certain. Independently of the correctness or reasonableness of that understanding of the Red Cross Symbol, it is clear that the existence of such an understanding undermines the respect for the symbol, at least in some countries. This becomes obvious from the desire to use the Red Crescent as an alternative symbol which is an expression of the discomfort the Red Cross may cause. Such respect, though, is essential for the symbol to fulfil its protective function, as it is the respect for the symbol and the represented legal norms and obligations which guarantees the protection of the victims of war as well as of medical personal. The attempts to agree upon the Red Cross as the only protective sign, to clear up the religious doubts connected with the cross, have obviously failed so that another solution had to be found.

Another problem that has arisen is also related to the issue of religion and national symbols. In the negotiations to the Geneva Conventions of 1949 it became obvious that the Israeli delegation insisted on the Israeli Magen David Adom, the Israeli equivalent to the Red Cross and Red Crescent Societies, being allowed to use the Red Shield of David on white ground instead of a Red Cross. (ICRC, Notes; Pictet, p. 302 et seq.) That the claim was rejected is the reason for the Israelis not to join the Movement. Other states’ Red Cross Societies like that of Eritrea wanted to use both the Red Cross and the Red Crescent together. The universality of the Red Cross and Red Crescent Movement, a declared goal, could not have been reached under these circumstances, so that again there was a search for another solution.
The Red Crystal is an attempt to finally put an end to all those discussions and to enable the Red Cross Movement to gain universal acceptance.

It is interesting to see that the idea of a new emblem was already brought up at the 1949 Conference, leading to the Geneva Conventions. The idea was to abolish the Red Cross, together with all other emblems, and to substitute a new sign (One suggestion was a heart as symbol for charity). The idea was rejected in 1949 as seeking to abandon a universally accepted emblem and thus endangering lives.( Pictet, p. 302)
The question therefore is how the Third Protocol overcame all the doubts. Are the norms so well balanced that they can overcome all doubts or was it just the time fore a new emblem?
According to Art. 2, the Red Crystal is recognized as a new distinctive emblem in addition to the emblems found in the Geneva Convention, e.g. Red Cross, Red Crescent and Red Lion and Sun. The Red Crystal therefore can be used alone, e.g. as displayed above, therefore in both functions of a distinctive emblem. Concerning the protective function, this gives states unwilling to use the other symbols for religious reasons the possibility to use a symbol without religious connotations. The Third Protocol thus respects both positions, taking up the doubts many states have against using Red Cross or Red Crescent, but declining the wish of many states to use their own symbol so that a certain uniformity is maintained. Where only the indicative function of the emblems is concerned the Third Protocol allows an even more flexible use of the emblems. According to Art. 3, it is possible to incorporate the emblem recognized by the Geneva Conventions, even a combination of these emblems, or another emblem which has been in effective use by a High Contracting Party into the Red Crystal. This gives for example Israel the possibility, on their territory and for indicative objectives only, to incorporate the Red Shield of David.

In Post 4, which will be the last post of this series, I will address the issue of the Red Cross Societies “defending” against the Gaming Industry.

Saddam Hussein unsuccessful before the European Court of Human Rights

2006-03-17T14:48:00.000+01:00

On Tuesday, the European Court of Human Rights (ECtHR) ruled inadmissible a complaint brought by Saddam Hussein against all European member States of the coalition in Iraq.In what appears to have been a boldly, but nevertheless also badly, argued complaint (badly, that is, unless the ECtHR has given a very unfair summary of the arguments), Saddam Hussein had argued that he had been unlawfully arrested, would receive an unfair trial, would be executed afterwards, and would be subjected to inhuman and degrading treatment. This last argument was presumably on the basis that the execution of a sentence of death following an unfair trial constituted such inhuman and degrading treatment, as the ECtHR had held in Öcalan v. Turkey (at para. 169).

These complaints on the merits, however, went nowhere, because the respondent States (Albania, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) did not have jurisdiction over the applicant in the sense of Article 1 ECHR. As the Court said, ‘[t]he applicant did not address each respondent State’s role and responsibilities or the division of labour/power between them and the US.’ He therefore failed to show that it was the (European) respondent States, and not the US or Iraq, that were responsible for the arrest, the trial, and its outcome.

In fact, this failure may relate not so much to the issue of jurisdiction in the special sense of Article 1 ECHR, but to the attributability of the relevant acts to any of the respondent States. This question is clearly a prerequisite for any international responsibility, including that under the ECHR, and is either anterior to or implicit in Article 1 ECHR. Either way, the ECtHR clearly has to examine this issue, and clearly could not possibly find that there was any imputability.
Hussein had argued that he was arrested and detained by the coalition States as the occupying powers of Iraq, and he seemed to imply that this responsibility was in the nature of a joint and several liability. This, the Court for its part implied, cannot be reconciled with the fact that there was what the Court called a ‘division of labour/power’ between the various States. This is clearly correct.

But even if any of the acts complained of had been attributable to any of the respondents, such a determination would not have availed the applicant. As was mentioned above, it is not enough that an act is attributable to a State party to the ECHR, but this act must also have been part of that State’s ‘jurisdiction’ in the sense of Article 1 ECHR.
In this sense, the Grand Chamber of the ECtHR had held in Banković and Others v. Belgium and Others that the concept of jurisdiction under Article 1 ECHR would generally follow that under general international law; accordingly, the jurisdiction of States parties to the ECHR was primarily territorial, and it was not sufficient that the States had some limited control over some of the human rights guaranteed in the ECHR (at paras. 59-82).
It is difficult to say whether this holding would have been fatal to the applicant’s claim, if only because it is so difficult to think of any facts which might engage the responsibility of the European coalition States. However, it seems that the only possible reference would have been to those States’ involvement in the coalition itself: none of those States was at any time the occupying power either in the place of the arrest or of the trial, and the only influence they had over events there was through their communication between the allies (and, possibly, with the Iraqi government). Banković made reasonable clear that this would not have been enough.
The applicant had argued that Banković was wrongly decided and should be reconsidered, but in view of the fact that his own assertions were, as described, somewhat elliptical, this seems to have been a bold move.

In any event, because the European States were clearly not in control of the arrest, detention and trial of Saddam Hussein, the Court did not have to decide whether such detention alone would be sufficient to establish their jurisdiction, or whether there had to be some kind of international legal nexus of the kind referred to in Banković. The Court had given such indications in Öcalan (at para. 91) and in Issa and Others v. Turkey (at para. 71), and the English High Court (Rix LJ, Forbes J) and the Court of Appeal (Brooke, Sedley and Richards LJJ) accepted as much in R (Al-Skeini) v. Secretary of State for Defence [2004] EWHC 2911 (Admin) and [2005] EWCA Civ 1609.

But even if the relevant acts had been attributable to the respondent States and the requirement of ‘jurisdiction’ under Article 1 ECHR had been met, the request of the applicant could have met with another difficulty, recently considered by the English High Court (Moses and Richards JJ) in R (Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin) (the case is currently on appeal to the English Court of Appeal, and may go on from there to the House of Lords and, possibly, the ECtHR).
This difficulty would have occurred as a result of general international law asserting its influence on the ECHR. Specifically, it might be argued that the arrest and detention of Saddam Hussein were on the basis of an authorisation by the UN Security Council and that this authority enjoyed precedence over the guarantees of the ECHR by virtue of Article 103 UN Charter.

In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:

‘Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).’

Accordingly, the Security Council gave coalition forces the power to ‘undertake a broad range of tasks to contribute to the maintenance of security’ in Iraq.

If the priority of obligations from the UN Charter and from Security Council resolutions over other sources of international obligations (specifically treaties) under Article 103 UN Charter extends also to resolutions granting a power, rather than only to ‘obligations of the members of the United Nations under the (…) Charter’ (Article 103 UN Charter, emphasis added), the consequence at least could be that the Security Council has, by granting this specific power, rendered the ECHR inapplicable. Indeed, the High Court reached just this conclusion in Al-Jedda, in the context of an ‘internment (…) for reasons of security in Iraq’ (see Secretary Powell’s letter quoted above).

However, this could obviously only apply if the power granted by the Security Council came into play, and this seems to be more than doubtful in the case of the arrest, detention and trial of Saddam Hussein.
Firstly, the trial itself is not conducted by any member of the coalition, and therefore falls outside the authorisation of the Council on this ground alone.
Secondly, Hussein is not interned ‘for reasons of security in Iraq.’ He is in custody during his criminal trial, as anyone who has been remanded in custody (i.e. denied bail).
Thirdly, the broader reference in Secretary Powell’s letter to ‘a broad range of tasks to contribute to the maintenance of security’ also seems to be irrelevant to Saddam Hussein’s case. His detention is not for such reasons, but is a feature of criminal procedural law. Besides, the reference to ‘a broad range of tasks’ is clearly too broad to be covered by the authorisation of the Security Council in SC Res. 1546. This is all the more so because the Council’s resolutions must be interpreted to accord, as far as possible, with human rights norms (in the case of rules of jus cogens, the Council simply may not authorise any deviations).

The issue of Article 103 UN Charter and the ECHR may therefore not have presented itself as strongly in the Hussein case as it did in Al-Jedda (I may return to the issue when the Court of Appeal has given its decision). Saddam Hussein’s case could therefore only by a considerable stretch of the imagination have been dismissed on the grounds of the precedence of the UN Charter (even assuming that the ECtHR would have jurisdiction to make such a ruling).

The case was, however, rightly dismissed because of the lack of attributability and (accordingly) jurisdiction. In fact, I completely agree with Julian Ku that this case presented ‘a loser argument, if I ever saw one.’

Distinctive Emblems Post No 2: The Functions of the Distinctive Emblems

2006-03-17T14:27:00.000+01:00

This serial post started some days before with Post No. 1, where I described the current developments concerning the distinctive emblems in international humanitarian law
What I will do now is to give a short and general overview of the functions said symbols have to fulfil in international humanitarian law.
The emblems, the Red Cross as the most important one, actually play an important role in the framework of international humanitarian protection. Rules covering the emblems can be found inter alia in Art. 38 – 44, 53, 54 First Geneva Convention, Art. 41 – 45 Second Geneva Convention, Art. 18 – 22 Fourth Geneva Convention all of 1949, Art. 8, 18, 38, 85 and Annex 1 First Additional Protocol and Art. 12 Second Additional Protocol both of 1977. The Red Cross, which is supposed to be an inversion of the Swiss flag, as an emblem in its current meaning has a very long history; it came into being as early as 1863 and was officially adopted in the Geneva Convention of 1864.
The distinctive emblems have different functions, a protective and an indicative one. Fulfilling the first function the symbol noticeably marks persons, vehicles and structures of the medical services of the armed forces, of the International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent Societies specially protected by international humanitarian law during armed conflicts. As such it is a virtually constitutive element of protection under international humanitarian law. (ICRC, Notes, About the adoption  of an additional emblem: questions and  answers; Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 325 et seq) This is obviously very important indeed. The distinctive emblem is THE visible sign of protection under international humanitarian law for medical personal and material; it is the first and most important way of showing the attacker what not to attack and it is thus necessary to make the protection of the before mentioned sites effective. As the involved personnel generally are not armed, they have to rely solely on the protective symbol to get over combat situations.
The second function of the emblems is to generally identify persons, vehicles and structures linked to the International Red Cross and Red Crescent movement, in combat and any other situations. In this function the emblem is not intended to signify the protection of the convention and therefore should be used under conditions precluding all risk of confusion with the protective use of the emblem, e.g. the emblem should be small relative to the size of person ore object it identifies. (ICRC, Notes; Pictet, p. 330 et seq)

In Post 3 I will address the issue of the Red Crystal and in Post 4 the issue of the Red Cross Societies “defending” against the Gaming Industry.

Blog against sexism day: Resources on Feminist Analysis of International (Criminal) Law

2006-03-08T19:47:00.000+01:00

Today is the 8th of March, International Women’s Day and, in the blogosphere, blog against sexism day. In the spirit of solidarity, I would like to contribute with a short post on feminist legal theory in international law.
While I am interested in feminist approaches to international law, I do not feel knowledgeable enough to contribute a substantial post. So instead, I will limit myself to pointing out some works and resources that might be of interest to readers also interested in this critical approach:

First, two works with regard to international law in general:

Berta E. Hernández-Truyol, “Crossing Borderlands of Inequality with International Legal Methodologies – The Promise of Multiple Feminisms”, 44 German Yearbook of International Law (2001), 113–169

This article gives a very detailed overview of the inequalities and oppression women are facing all over the world, as well as the history of feminist thought in general and with regard to (international) law especially.

Hillary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000)

This is probably the classic overall treatise on the subject. The authors give an overview of feminist theories and of how they may be applied to international law and apply these theories to “cornerstones” of international law such as the sources of law and the “idea of the state”, as well as to concrete areas of the law, such as human rights or the use of force. They conclude with some considerations on “redrawing the boundaries of international law”. For a more in-depth review, see Kerry Rittich, 14 Leiden Journal of International Law (2001), 935–939.

Lyonette Louis-Jacques has more resources on Women in International Law.

With regard to international criminal law:

Christine Chinkin, “Feminist Reflections on International Criminal Law”, in: Andreas Zimmermann/Ursula E. Heinz (eds.), International Criminal Law and the Current Development of Public International Law (2002), 125–160.

Starting from an account of the Women’s International War Crimes Tribunal on the treatment of Japanese “comfort women” organized by NGOs in 2000, Prof. Chinkin lays out a number of “themes integral to a feminist analysis of international criminal law. These are the grip of the public/private distinction in international law; identifying the silence of the law; reconceptualizing international criminal offences; and the procedures of international criminal law”, and the importance of networking and campaigning by women in order to achieve changes in the law (127). Her essay thus introduces several key concepts of (international) feminist legal theory in general and in their application to international criminal law. Her conclusion yields a “mixed picture” (157) – most importantly in my view, she warns against relying too much on international criminal law in the context of post-conflict reconstruction.

Vesna Nikolic-Ristanovic, “Sexual Violence, International Law and Restorative Justice”, in: Doris Buss/Ambreena Manji (eds.), International Law – Modern Feminist Approaches (2005), 273–293

This article deals with the potentials and limits of punitive justice (e.g. the ICTY), but also of efforts aimed at healing and at restorative justice, for victims of sexual(ized) violence in the context of armed conflicts.

Happy reading!

Distinctive Emblems Post No 1: Current Developments

2006-03-04T14:20:00.000+01:00

I think I have to apologize (seeing that Björn already posted 5 times) for start posting only now but I was more than busy for the last two weeks. In the time before this blog came into being some interesting questions concerning international humanitarian law have been raised and I will, from now on, try to work some of them off. Naturally I will also try to stay in touch with current events.

I decided first to address a not that hot topic (at least politically or morally) that was newsworthy in several aspects and developments in the last few month. The role of the Red Cross-, Red Crescent-, Red Lion-Symbols (often called distinctive emblems or protective symbols) in armed conflicts and in international humanitarian law. There are several issues that are worth discussing within this topic so I decided to make this a sort of serial post. I will address the current developments that made the distinctive emblems a topic worth talking about in this post, and examine each issue in a later post.

The first interesting development obviously is the adoption of the Third Additional Protocol on 8 December 2005, establishing the Red Crystal as an additional protective symbol under international humanitarian law. We all know that the Third Protocol has been adopted but what are the distinctive symbols all about and where lies the need for such a new symbol? The Red Cross and Red Crescent are more then well known after all.
For some time I thought that probably there was a major development going on but that I did not understand its importance. This development alone therefore probably would have been a reason to review the humanitarian norms on said symbols, but there are other interesting developments concerning related aspects of international humanitarian law.
The Canadian Red Cross (CRC) decided to admonish the video/computer games industry on their illegal use of the Red Cross symbol and did so in a letter published by gamelaw.org on 3 February 2006 (see also the interview with David Pratt of the CRC at shaknews.com) and it is reported that the British Red Cross (BRC) is approaching the games industry (See gamesindustry.biz) in the same regard.
The situation is as follows, as most of our readers probably know. In many video games, especially ego shooters, the icon of the red cross is used on items like health packs, potions or similar objects; in other games, playing in war related scenarios, the red cross is used depicting Red Cross facilities and vehicles rendering the game more realistic. Because there is no control over this usage of said symbol the CRC and the BRC are acting. The question is to what extent this reaction guided by legal norms, if it is a normal reaction or just aiming at the anyway pressed gaming industry and lastly if the reaction seems to be reasonable.
I have to admit that this issue was already shortly addressed for example on opinio juris (and probably many other blogs), mainly concerning the alleged illegality of the use of the Red Cross Symbol. It seems important however to talk a little bit more about the reasoning behind the norms protecting the Red Cross and the other symbols. Why? Because at first sight I thought (if I am looking around in the blogging sphere I have to say like many others) it a waste of time and money by the CRC to make such a fuss about some video games, even if the publication is prohibited in principle. With a second thought however I regarded it as necessary to know more about the background of said rules in order to be able to judge upon the admonition by the CRC.

After I have generally addressed the functions of the distinctive emblems in Post 2 of this serial post, I will address the issue of the Red Crystal in Post 3 and the issue of the Red Cross Societies “defending” against the Gaming Industry in Post 4.

The ICJ tackles the Bosnian Genocide – or maybe not…

2006-03-03T13:48:00.000+01:00

The International Court of Justice has begun to hear oral pleadings on the merits in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This does raise the hope that the Court will, if somewhat belatedly, determine the legal issues arising from the civil war that wrecked the Balkans throughout much of the 1990’s. Whether this will do very much good, now that 13 years have passed since the events and circumstances on the ground have changed a lot, is, as Julian Ku at Opinio Juris suggests, an open question. I would, however, not go so far as to suggest that the Court has a ‘limited usefulness’; after all, if Bosnia and Herzegovina had agreed with this statement, it would have discontinued the case long ago. Accordingly, the judgment remains highly desirable to the applicant, and it is primarily this interest that the Court is there to serve.
As for the international legal community, it is obviously most interesting that this is the first time that state responsibility for genocide may be formally established (see Helena Cobban’s post at TJF).
However, all this would presuppose that it will come to such a judgment, and this is far from clear. These are very unusual merits proceedings, in that they do not exclusively concern the merits of the case.

The respondent has made a request to the Court to reconsider jurisdiction on 4 May 2001, and the Court has still not addressed this. The notice, called the ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’, was not in terms of any known procedural step by Yugoslavia as a party; it simply, as appears from its title, argued that the Court could go into the question of its jurisdiction at any time, even proprio motu, and apparently unimpeded by any res judicata.

This raises a host of questions, which the Court may not be altogether happy to answer.

The first problem is whether the Court really can go into the question of its jurisdiction proprio motu, i.e. without any formal request by either party. Insofar as the jurisdiction of the Court is based on the consent of the parties, this might be doubted on the simple basis that, if a state does not contest the jurisdiction of the Court, it may well be consenting to it. Thus, the Court’s competence to decide on its own jurisdiction may be said to arise only if there is a dispute on the question (or if Article 53(2) of the Statute commands the Court to examine the issue anyway, in the event of a default by a party).
The Court answered this argument in its 2004 judgment on the preliminary objections in the Legality of Use of Force cases, which Yugoslavia (later Serbia and Montenegro) had brought against the member states of NATO for their Kosovo air campaign in 1999. Then as now, the problem of the Court’s jurisdiction concerned not the jurisdiction under Article 36 of the Statute, but the more basic issue of whether Yugoslavia had been a party to the Statute and had consequently enjoyed the right of access to the Court (Article 35(1) of the Statute) when instituting the case. Accordingly, the Court held, the question was not one determined by the consent of the parties. It was therefore not necessary for the question to be raised by any party, before the Court could enter into an examination of the requirements of Article 35(1).
Exactly the same question, i.e. whether Yugoslavia enjoyed a right of access to the Court, impresses itself upon the Court in the present case. It would therefore appear that the Court is indeed capable of considering the issue proprio motu.

However, the Court has already decided in 1996 that it had jurisdiction. Does this not bind the Court today, not by any doctrine of stare decisis, but as res judicata? In other words, would it not be fundamentally unfair and therefore inadmissible for the Court to go and decide a question now, which it has already decided, perhaps differently, years ago?
(To make a token connection to human rights law, the European Court of Human Rights said in Brumărescu v. Romania, at para. 61, that the finality of court judgments was ‘[o]ne of the fundamental aspects of the rule of law’)
This would appear to be the argument pressed on behalf of the applicant, Bosnia and Herzegovina, and it would seem to be supported in principle by the Court. The Court was asked to enter into a revision of its 1996 judgment on jurisdiction, and it did so in its 2003 judgment on the request. This implied that the Court regarded the 1996 judgment as a res judicata, because the special procedure of revision exists purely to overcome the limitation of the res judicata principle, and can therefore apply only to the res judicata of the previous judgment. True, the request was eventually rejected, but not on the grounds that the 1996 judgment did not contain a res judicata.
However, there may be ways of getting around this. Firstly, the distinction made by the Court between jurisdiction under Article 36 and access to the Court under Article 35 may mean also that the matter of a state’s access to the Court is incapable of being covered by a res judicata. This argument might run as follows (this is me guessing here): Article 35 sets a fundamental condition on the ability of states to appear before the ICJ, which moreover is in no way subject to the consent of the parties. Thus, it might be said, the capacity of the Court to entertain a case remains at all times under the condition that all the parties have a right of access under Article 35, or have at least had that right when the case was instituted.
A second argument may be rather less difficult to imagine: the 1996 judgment did not even mention the question at issue today, but concentrated on Article 36(1) of the Statute and Article IX of the Genocide Convention. Therefore, no res judicata on the Article 35 issue exists, because this can only be based on what has been said on a previous occasion, not on what the Court should have said at the time.

To sum up, it may be that the Court has a power and a duty to re-examine the question of whether Yugoslavia could at the relevant time be a party to the case, and the Court may not be prevented from doing so by any res judicata.

If the Court accedes to Yugoslavia’s (now Serbia and Montenegro’s) request to do so, it may find itself in a somewhat unpleasant situation. The Court would have to decide (again) whether Yugoslavia was at the relevant time a party to the Statute of the Court, which it would have been by virtue of being identical with the old Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations (see Article 93(1) of the UN Charter).

On this basis, Yugoslavia had argued in its request for a revision of the 1996 judgment finding in favour of the Court’s jurisdiction that it had not, contrary to its earlier beliefs and statements, been the continuator state of the former Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations when the case was instituted against it.
The Court did not buy into this argument, stating in its 2003 judgment on the admissibility of the request for revision that, firstly, Yugoslavia had at the relevant time enjoyed a sui generis status vis-à-vis the United Nations, and that, secondly, the request was not based on any ‘new fact’ in the sense of Article 61 of the Statute.
This reference to Yugoslavia’s sui generis position would appear to mean that Yugoslavia enjoyed some rights of membership, including that of access to the Court. Only this conclusion could have availed the Court in finding that the assumption of access in its 1996 judgment was not in fact wrong.

However, the question of access to the Court was raised again in a very different set of proceedings, namely the aforementioned Kosovo cases. When it came to the respondent’s argument that Yugoslavia had not been a member of the UN when instituting the case, one might have expected the Court to follow the lead of its 2003 revision judgment and to flesh out the concept of the sui generis membership. Not so, as it turned out.
The Court had perhaps been impressed by the political undesirability of the case before it, both to the respondents and to Serbia and Montenegro, which in the meantime had developed altogether happier relations with the West, but could not be seen domestically to discontinue the Kosovo cases. One might therefore assume that this was the internal (but by no means expressed) reason for the Court to reconsider whether Yugoslavia had really had access to the Court.
What the Court did say was that its use of the term sui generis in 2003 was in no way intended as a statement of any legal content, but merely as a description of the difficult facts. This is not extremely convincing, for the reasons mentioned above (the phrase must have had some legal relevance, or else the Court in 2003 would not have used it). Anyway, the Court in 2004 in the Kosovo cases found that Yugoslavia did not have the requisite access to the Court under Article 35(1) of the Statute, and the Court was much criticised for its refusal to follow its own very recent precedent, which moreover concerned the same state (see e.g. the Joint Declaration of Vice President Ranjeva and Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby appended to the Court’s judgments in the Kosovo cases).

It is this flat statement that makes Yugoslavia’s (and now Serbia and Montenegro’s) ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’ such a stark choice for the Court. The first option for the Court would be that it agrees with its own Kosovo judgment and finds that it does not, after all, have jurisdiction in the case, thus effectively vacating its 1996 judgment in the present case, and obviously continuing to disrespect its 2003 sui generis solution.
The second option would be for the Court to return to the view expressed in 2003, thus departing from an even more recent holding (that of 2004 in the Kosovo cases), and moreover one in which the earlier opinion of the Court had been considered. This is not only highly unlikely, considering that many of the judges of the Kosovo cases remain on the bench, it is also very undesirable. But then so is the first option.

I hope I may be excused for not expressing any view on this thorny question. Whatever I say now could only come back to haunt me.
I also realise, of course, that this post does not strictly relate to human rights, international criminal law, or international humanitarian law. The case at hand, however, clearly does concern Yugoslavia’s (again, now Serbia and Montenegro’s) responsibility for violations in pretty much all these categories, and I only set out to show that it may, sadly, not come to the merits judgment many now hope for. (A lame excuse if there ever was one. Go on, sue me.)

ICC-Figures

2006-03-02T17:05:00.000+01:00

As we are busy discussing the possible dangers and advantages of international criminal justice here at The Core its probably interesting to see the figures of the ICC's work to this date. I found a quick summary this figures, courtesy of the International Justice Tribune, as a post at Opinio Juris and they officially, and in full length, can be found here at the ICC-Webpage.

Since its creation in July 2002, the International Criminal Court (ICC) has received 1,732 pieces of communication about crimes committed in 139 countries.
According to the second summary published by the office of the prosecutor on February 10, 60% of the information came from individuals or groups in four countries: the United States, the United Kingdom, France and Germany. 80% of the claims were found to be manifestly outside [the court's] jurisdiction and were dismissed after initial review. The cases that received intensive analysis were categorized into 23 "situations". Ten were chosen, six rejected and seven are still under study. Of the 10 cases selected, 3 are currently being investigated (Democratic Republic of Congo, Uganda and Sudan), 5 are being analyzed (Central African Republic, Côte-d'Ivoire, and three others that remain confidential), and 2 were dismissed (Iraq and Venezuela). The prosecutor has publicly stated his reasons for rejecting the latter two. In Iraq, the alleged war crimes were not sufficiently severe. In the case of Venezuela, he was unable to determine whether the alleged crimes against humanity had been committed "as part of a widespread or systematic attack directed against any civilian population."

International Criminal Tribunals and Western States

2006-02-28T15:29:00.000+01:00

One of the main points in any debate about the ICC has always been the “danger” that Western states could come under scrutiny by a “politicized” OTP. Of course, I would argue that this is not a danger, but a requirement, as it would show that international criminal trials are not about prosecuting only “the usual suspects”, but about actually giving teeth to human rights and international humanitarian law.

Anyway, it seems that Western states need fear no longer (or not as much): As recently reported by the Jus in Bello weblog, the ICC prosecutor has released a document explaining his decision not to open an investigation into allegations of core crimes committed by UK troops in Iraq. This document can be found here, a general update on communications received by the OTP here.
I will hopefully find the time to give a short summary and some comments on this important document soon, but to just sum it up in one sentence, its main point is: British soldiers in Iraq may well have committed war crimes (wilful killings and inhuman treatment), but the OTP will not initiate a prosecution because those crimes were not numerous and/or grave enough.

Meanwhile, the conduct of western troops may well come under scrutiny from a rather unexpected angle: German weekly “Der Spiegel” reports about the upcoming trial of Croatian former general Ante Gotovina, who is indicted before the ICTY for war crimes and crimes against humanity for his role in the 1995 “Storm” offensive in the Krajina. Gotovina’s defense team has recently been reinforced by an American lawyer, Greg Kehoe, apparently because it is feared that the US role in supporting the Croatian army during the offensive might also be scrutinized by the tribunal.
The Spiegel article is here, Kevin Jon Heller at Opinio Juris has more on this development.

This just to bring our readers up to speed on developments.
As already mentioned above, I find that the way in which international criminal tribunals deal with the involvement of Western nations in the situations they are concerned with (such as their involvement in the Yugoslav and the Bosnian civil war, aid granted to Saddam Hussein in the earlier stages of his reign, the NATO bombing of Yugoslavia, etc.) is one very important pointer in the debate about the legitimacy of such tribunals. I will hopefully have a longer, more in-depth post on this question in the future.

UPDATE: As reported on Jus in Bello, Saddam Hussein “could be executed within months if he is found guilty of ordering the massacre of 140 people from the town of Dujail.” According to Iraqi Special Tribunal's chief prosecutor Ja’afar Moussawi, Iraqi law requires that those sentenced to death must be executed within 30 days of their final appeal.
This would mean, of course, that the Tribunal could not concern itself with the most serious charges against Hussein, inter alia those concerning war crimes committed during the Iran-Iraq war or the poison gas attack on Halabja. In other words, precisely those acts in which Western involvement could potentially become relevant before the IST will not be scrutinized by that Tribunal (See an earlier news article on this issue).

How not to criticize the international criminal justice project

2006-02-27T16:18:00.000+01:00

The international law/international relations blogosphere is abuzz with commentary on an article by Helena Cobban in “Foreign Policy” about the failures of international criminal tribunals.

While I have yet to read the article, apart from excerpts cited on various blogs, I feel that some of the commentaries raise interesting points about how one should criticize the international criminal justice project. My two cents:

First of all, I am a bit astounded by the debate about costs. Referring to the Rwanda Tribunal, the article notes that

“[a]s of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment.”

Over at Opinio Juris, Julian Ku asks “Are International Criminal Tribunals a Waste of Money?” His conclusion:

“You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn't worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)“

Well, Rwanda is of course punishing perpetrators (or, as the criminal defence pedant in me would put it, “prosecuting alleged perpetrators”) already, so any criticism of the ICTR should take into account how those alternatives are actually faring–the literature on the pros and cons of Rwandan gacaca courts is pretty vast.

But apart from this quibble, let’s just assume for the moment that the ICTR, through its judgments (even if there were only 25 of those), has actually managed to convey to the world that perpetrators of genocide will be brought to justice (or whatever lofty goal one attributes to international criminal trials): Would not that result be worth a billion dollars (even if it might also have been arrived at for a lower cost)? If not, how much would it be worth?

Just to put things into perspective, the Iraq war has cost the United States alone hundreds of billions already, according to this website.

Second, I have read several critiques claiming that most international tribunals are little more than “Kangaroo courts”, and I think there is at least some truth to such claims (See Michael Mandel's book referred to in an earlier blog post, as well as this article). I was also intrigued by an article by Martti Koskenniemi, who shows that international criminal tribunals, because they aim to participate in the writing of history, are always in the danger of becoming “show trials.” (Between Impunity and Show Trials, 6 Max Planck Yb. UN L. (2002) 1, available here)
But I have always taken for granted that any rational person could only see this as a problem, a critique, of the endeavor of international criminal trials.

Not so, apparently. On his blog “Security Dilemmas”, international relations scholar Seth Weinberger writes that

“In cases like Milosevic or Hussein, kangaroo courts to air what is already known should be sufficient. For other, more widespread situations like in Rwanda, South Africa, or Mozambique, leave the pursuit of justice up to the nation itself. It will proceed in the manner it best sees fit.”

Now, I would like to inquire what is “already known” about Milosevic–does Prof. Weinberger know whether/to what extent Milosevic was responsible for acts committed by Bosnian Serb forces in the Bosnian war, including the mass killings at Srebrenica? From what I have read about his trial, this seems to be far from clear–and this question is of high importance, because only by claiming that Milosevic controlled the Bosnian Serb Army was the OTP able to include the spectacular charge of genocide in the indictment of Milosevic.

Most importantly of course, the fact that a scholar would actually argue for the creation of “kangaroo courts” (i.e. show trials) is breathtaking to me. I can only hope that Prof. Weinberger is not using the term in its usual meaning.

To conclude, I am all for critiques of international criminal tribunals, but only if those critiques actually inquire into whether those tribunals achieve the goals set for them in the context of transitional justice (while also upholding defendant rights and fair trial guarantees). In this vein, I am looking forward to reading the Foreign Affairs article once it becomes available to me.

Meanwhile, Anthony Arend of the “Exploring International Law” blog provides a short and level-headed comment concerning the whole debate.

UPDATE: The article is now available here. More shortly

Who says that international criminal trials do not further reconciliation?

2006-02-22T18:25:00.000+01:00

According to a recent slate article by Julian Mortenson, a former associate legal officer at the Yugoslav Tribunal, they do – at least among (alleged) perpetrators. Mortenson reports from “Inside the United Nations Detention Unit“ in The Hague where accused from all ethnic groups of the Former Yugoslavia seem to get along quite well . One of the main reasons for this astounding unity, according to Mortenson:

Wrenched away from everything they know, these inmates have been dropped in someone else's country, surrounded by someone else's language, and forced to confront the massed resources of a thousand-person tribunal that they believe exists solely to railroad them into guilty verdicts. Under these alienating circumstances, bunking next door to people who share the same language, who enjoy the same food, who have overlapping traditions and pop-culture touchstones, and who share the same enemy in the tribunal's head prosecutor—all of this can overwhelm whatever ideologies seemed so important when Yugoslavia was ablaze with ethnic passion.

Quite an interesting combination of transitional justice and Schmittian thought, if you ask me :).

(Another interesting insight from the article is that Tim McFadden, the warden of the Detention Unit, seems to really have understood the meaning of the presumption of innocence and its influence on conditions of incarceration.)

Interesting Blog: Law and Disorder

2006-02-17T16:07:00.000+01:00

To further establish my position as resident crit, I would like to point our readers towards an interesting blog by "Rob", a Cambridge Law Student, entitled "Law and Disorder".
The author concerns himself mostly with a Marxist analysis of both national and international law.

And to tie this in with the subject of this blog, I would refer readers to Rob's posts on "rights" in general and human rights specifically.

Interesting stuff.

Some thoughts on "The Core"

2006-02-17T15:57:00.000+01:00

Our (future :)) readers may be interested in how we arrived at the blog’s title.

Originally, we were aiming for a title that was both catchy and captured the areas of the law we were planning to blog on. “The Core” first of all occurred to us as an allusion to the notion of “core crimes”, i.e. those crimes (aggression, war crimes, genocide, crimes against humanity) that make up the body of international criminal law. However, after having decided on the title for mainly that reason, it occurred to me that it may also be understood to have a deeper meaning, concerning the question of the raison d’être of – or at least basic focus for our understanding of – international law as such.

We all know that traditional scholarship basically sees international law as the law between sovereign states and that under this view, the “core” of international law is the sovereign equality of states and the principle that state consent is a prerequisite for the binding force of international norms.
There are, however, two current trends that replace (or rather complement) this view: The first one, which is usually described as “constitutionalization”, shifts the focus away from the individual states and towards the “international community.” As far as I see it, there are two interconnected strands of “constitutional” or “communitarian” international law scholarship: One more value-centered and resolving around notions such as jus cogens norms, the other more institution-centered, focusing on the United Nations and increasingly the Security Council. (As already mentioned, I have written about the Security Council’s role of international law-maker in the 2005 International Organizations Law Review).

If this view can probably be described as shifting the focus “up” from the state towards the international community as a whole, there is also another view that shifts its view “down”: Not (only) the state, but (also) the individual is at the focus of this view of international law. And this view focuses on precisely the areas of international law that we plan to blog about – human rights as the fundamental norms of international law directly favoring individuals; international humanitarian law as increasingly concerned with the protection of individuals, especially civilians; and international criminal law, which supplements the granting of rights to individuals with individual criminal responsibility for breaches of such rights, giving “bite” to human rights and international humanitarian law. (There are, of course, other bodies of international law protecting or perhaps even granting rights to individuals, such as investment law, but we hope we will be forgiven for not covering this area in any detail.)

This shift of the focus towards the individual person has, on the one hand, been met with some enthusiasm – a prime example is the 2003 General Course of Public International Law at the Hague Academy, delivered by ICTY President Theodor Meron and entitled “International Law in the Age of Human Rights.” (RdC vol. 301 (2003)) Meron traces the influence of human rights on various areas of international law, from the humanization of warfare and the criminalization of violations of humanitarian law to more general questions such as subjects and sources of international law.

There are, however, also a number of critiques of this view, coming from various corners. Some semi-random examples:

Human Rights have been criticized from a Marxist point of view for a long time – for a contemporary example see Slavo Zizek’s “Against Human Rights” in the New Left Review 34 (2005).

(Some aspects of) Human Rights have also come under critique by “humanitarians” – most famously by Harvard Law School Professor David Kennedy in his recent “The Dark Sides Of Virtue: Reassessing International Humanitarianism” (Princeton Univ. Press, 2004, a video recording of the Harvard “Dean’s Forum” discussing the book can be found here).

In “How America Gets Away with Murder”, Prof. Michael Mandel of Osgoode Hall criticizes the ICTY, the establishment of which revived modern international criminal law, as a propaganda arm of NATO and casts doubt on the ability of international criminal law to do more than “round up the usual suspects.”

My own position is that while I am surely not a proponent of a classical state sovereignty centered view of international law, I find myself agreeing with many critics of views centered on human rights or the international community, at least as they currently stand. (Incidentally, I have written reviews of both Mandel’s and Kennedy’s book for the upcoming vol. 48 of the German Yearbook of International Law.)

Okay, this much for now about the title of the blog and about my interest in some of the topics we will be covering.

Tobias' Introduction

2006-02-13T19:20:00.000+01:00

Again, thanks to Nicki for creating the blog - and also to Bjoern, for explaining some things about German lawyers' careers that I will not now have to go into again.

So, in short, I have also participated in the Philip C. Jessup International Law Moot Court Competition in 2000/2001, with Nicki and Bjoern (I note that Bjoern has not mentioned this - nothing personal, I trust). I continued my involvement with various special and general issues of international law at later stages of my undergraduate work, and I wrote an essay in it as part of my First State Examination. I passed that exam in December 2004 and then became a colleague of Nicki's and Bjoern's at the Walther Schuecking Institute at Kiel University in January 2005; this does make me the most junior contributor to this blog, but not by much.
Like the other two, I am also working on my doctoral thesis, which is one Third States' Interests before International Courts and Tribunals.
As a research fellow at the Institute, my tasks mostly centred on acting as one of the Assistant Editors of the - forthcoming - commentary on the Statute of the International Court of Justice, edited by Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (the other, and, to be honest, more senior Assistant Editor is Christian J. Tams, also of this institute).

Besides this job and my thesis, my interests within the broad church that is international law have tended to concentrate on human rights law, so that will be my chosen field in this blog (another factor being that I know next to diddly-squat about the other two subjects, relatively speaking). I have recently had an article on 'The Admissibility of Evidence Obtained by Torture under International Law' accepted by the European Journal of International Law and I am presently writing a case note on a judgment by the British House of Lords on the same topic for the Journal of International Criminal Justice. No prizes for guessing that I like to read British cases, then; I have, after all, studied for one term in 2002 at the University of Surrey, and I plan to take an LL.M. course in the UK later this year.

I have also published in other fields of international law (‘International Law Aspects of Sea Ports’, in Alexander Trunk/Valeriy Abramovich Musin, eds., International Commercial Arbitration and International Maritime Law from a German and Russian Perspective, 2004, and, with Professor Dr Andreas Zimmermann, a commentary on Article 60 of the ICJ Statute, in the above-mentioned commentary), so I don't think I can only speak about human rights. Anyway, human rights law is just another part of international law, so I feel that more general issues of international law may properly infuse our thinking in the more specialised branches.

As may have become apparent, I do like to properly analyse the law, even where there are no or conflicting statements of authority. On the other hand, I am not remotely sad if my views are shared by authority, and I am likely to find out if they are, so do expect me to provide citations where appropriate.

Bjoern's Introduction

2006-02-13T16:20:00.000+01:00

First of all, thanks to Nicki for setting up the blog.

I thought I would use this first post to tell our readers something about myself and my interests in international law in general and more specifically in international criminal law.

I studied law at the University of Kiel and passed the First State Examination (J.D./LL.B. equivalent, for you Anglo-American types out there) in April 2004. Since then, I am a research fellow (“wissenschaftlicher Mitarbeiter”) at the Walther-Schuecking-Institute for International Law here in Kiel, where I teach fundamental rights to small groups of first year law students. I have also worked as “Assistant Editor” for last year’s edition of the faculty-run German Yearbook of International Law and, together with my colleague Tilmann Laubner, coached the Kiel team in the 2004/2005 Philip C. Jessup International Law Moot Court Competition.

I am also (supposed to be) working on my doctoral thesis with the (tentative) title “The Historic Mission of International Criminal Trials and its Influence on the Position of the Accused” and the (very tentative) finishing date of early 2007. Plans afterwards include an LL.M. in the US and finishing my professional training in Germany (which requires two years of mandatory clerkships before one is allowed to take the Second State Examination, the bar exam equivalent). My final goal is to work in criminal defense and/or academia.

Academic interests in international law include “constitutional” public international law, international criminal law, and human rights. I am also interested in international law theory and history – the reissue of Martti Koskenniemi’s “From Apology to Utopia” currently sits on my nightstand. As far as “philosophy of international law” is concerned, I lean towards (Legal) Realism/ Critical Legal Studies/ New Approaches to International Law.

My main publications in the field are “The Ultra Vires Character of Legislative Action by the Security Council”, 2 International Organizations Law Review (2005), 337–360 and (with Kerstin Bartsch) “Jus Cogens v. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v. Greece and Germany Decision” (yes, I know that there are two “decisions” in that title), 4 German Law Journal No. 5 (May 2003).

I am excited to be aboard and looking forward to hopefully many interesting discussions.

My (Nicki's) Introduction

2006-02-13T14:26:00.000+01:00

As I said, there probably will be an introduction of the contributors to this blog before we really start posting and we decided to let everyone introduce himself, with an emphasis on his interest in international law.
My interest in international law started with my participation in the Philip C. Jessup Moot Court Competition in the year 2001, it was consolidated through my further studies in law at the University of Kiel, and further concentrated on international human rights and especially international humanitarian law. Next to the foundations of international law and said subjects which are also addressed by this blog, a more recent field of interest of mine is the history of international law, again with an emphasis on the history of humanitarian law. I am browsing through Steven C. Neff’s “War and the Law of Nations” at the moment.
After passing the German First State Examination in July 2004 I am now, like Björn and Tobias, a research fellow at the Walther-Schuecking-Institute for International Law at the University of Kiel, where I am able to do some research in my fields of interest (Additionally I have to teach European Law to small groups, to coach the 2006 Jessup Team etc.). I wrote, for example, an article on “Outsourcing War – Private Military Companies and International Humanitarian Law” (GYIL 47 (2004), 502), and co-authored an article by article “Commentary on the International Covenant on Civil and Political Rights” (in: Das Deutsche Bundesrecht, Baden-Baden 2005, written in German, co-authored with Prof. Dr Dr Rainer Hofmann). My doctoral thesis, which I hope to finish this July, concentrates on the problem or possibility of individual claims for violations of international humanitarian law, especially according to the German law of state torts.
My plans after finishing the doctoral thesis are to do an LL.M. in the UK and I think I will see how I could proceed from there.
Finally, I think I have to say where I “stand” concerning my approach to/philosophy of international law. I think it would be best described as realistic internationalism, what this means you will certainly see in the hopefully interesting discussions at this blog.

Reflections

2006-02-04T12:11:00.000+01:00

This first post on this blog is a reflection on the motivations behind its creation. (Actually it is a “test” post to get this group blawg started, but I wanted to write something substantial, so here we are.) According to the subheading it is about human rights, humanitarian law, and international criminal law and we, the bloggers to be, are young legal academics whose special interests lie in said fields of international law. (There probably will be a more in depth introduction of those involved in a later post by the time this blog is finally up and running.)
Neither our profession nor our special interests however, may totally explain why we decided to start this thingy. Some attendant circumstances may have influenced this decision.

In my opinion this may have been that:

1. We are blessed to work in an academic environment that taught us how important it is to exchange views and opinions, to get nudged when something interesting happens. At least two of us realised (one a long time ago the other just recently) that the blogosphere shares some of the features also found in such an academic environment.

2. Currently so many things are happening in our field of interests, there are so many problems to discuss, and we have to protect the ongoing work on our dissertations against the urge to write articles on the relevant legal issues.

3. We have to discuss said issues anyhow, so why not start a group blawg.