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Top International Lawyers of 2008?

Published on December 31, 2008        Author: 

At this time of the year, it is usual for the media to pubish lists of top this and top that of the year. I wonder whether it is possible to have list of the top international lawyers of 2008. If one were to try to construct such a list one would have come up with criteria for identiying these people. Presumably, one would be looking for those international lawyers who apppear to have been most influential. But how does one measure influence? Is influence not something which may only become apparent many years later? Perhaps one would need to distinguish between those lawyers operating in governments and IOs from international law academics.

The Times (of London) published a list ealier this year (see here) of the UK’s 100 most powerful lawyers. This is said to be “a list of the lawyers who have the most clout in shaping the rules we live by”. According to the Times, this list of 100 top UK lawyers:

is not a list of excellence, popularity or media mentions — although these can be factors. So it’s not just big names or brilliant stars (take comfort, those excluded). Instead, we tried to select the most powerful and influential within the law today — in the judiciary, private practice, in-house, public sector or politics.

How to measure power and influence — who really has clout?  . . .

We had in mind such factors as whether contenders can influence public or political opinion, or the strategy or policy of a big firm, company or government; whether they can shape or apply the law in a way that affects many people; whether they are respected, feared or emulated or contributed to the strength and quality of UK legal services.

Readers may be interested to see how many international lawyers are included in the list. There are some in the list who have made significant contributions to international law cases in the UK but who are perhaps better known for a more general contribution to UK Law. For example, some are judges [eg Lord Bingham, former Senior Law Lord and one of the judges in the Al-Skeini  case (extraterritorial application of the ECHR in Iraq); the Al-Jedda case (interaction between ECHR and UN Security Council resolutions with regard to detentions in Iraq by British forces); the A case (use in British proceedings of evidence obtained by torture). Others are human rights litigators who have also made important contributoions to that area of law (eg Phil Shiner).

There are three names on the list which are more likely to be recognised by non-UK international lawyers: Daniel Bethlehem, the Legal Adviser to the Foreign and Commonwealth Office (and former LSE & Cambridge academic)

Christopher Greenwood, currently Professor of International Law at the LSE, who has just been elected to the International Court of Justice

Dame Rosalyn Higgins, current President of the International Court of Justice (and also a former LSE Professor of International Law).

In my view, the fact that some of the lawyers on the list are international lawyers says something about the perception of international law in the UK (or at least about the perception of the place of international law by the persons who put the list together). One can only speculate whether any international lawyers would have made a similar list put together a couple of decades ago. Does anyone know of any similar lists in other countries? Do they include international lawyers? Perhaps readers would like to put together a list of the most influential public international lawyers of 2008.

Filed under: EJIL, EJIL: Debate!
 

Israeli raids in Gaza: Proportionality and the Status of Hamas Policemen

Published on December 29, 2008        Author: 

The latest Israeli raids in Gaza are said to have killed over 300 people (injuring over 1000 others) with most of the dead being Haman policemen and security officials. Israel has launched the raids in response to the repeated rocket fire into Israel from Gaza. Given the very high Palestinian casualties resulting from Israel’s raids and (as far as I can tell) the very low numbers killed or injured in Israel as a result of rocket fire there will be a debate about whether Israel’s actions are proportionate [I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids]. Indeed, the UN Secretary General has been quoted as condemning Israel’s “excessive use of force leading to the killing and injuring of civilians” (see here). No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL). The relevant rule of IHL that will be invoked is the rule that forbids attacks which may be expected to cause incidental loss of civilian life or civilian damage which is excessive when compared with the concrete and direct military advantage to be gained (Art. 51, Additional Protocol I 1977 to the Geneva Conventions of 1949). It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory. Afterall, one is not comparing two things that are necessarily commensurate, unless one makes a straight forward comparison between life lost and life expected to be saved by the military operation. Using that crude comparision, some will suggest that the taking of over 300 lives in order to save just a handful would be disproportionate (if the operation could be expected to cause such loss of life). I do not intend to disagree with that analysis.

However, I suggest that in this case, starting from the proportionality analysis is to start in the wrong place. The recent Israeli raids raises other more basic legal issues under IHL. The answers to those issues might suggest that one never gets to making a proportionality calculation. The proportionality rule requires a comparision between civilian loss (or life or of property) and the military advantage to be gained. Since we are told that most of the deaths caused by those raids are to Hamas policemen or security officials one has to ask whether these are civilians. Read the rest of this entry…

 

Territorial Scope of Application of the Genocide Convention

Published on December 29, 2008        Author: 

In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.

To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:

(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;

(2) The (positive) obligation to prevent genocide;

(3) The (negative) obligation not to commit genocide through their own organs or agents.

This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?

According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.

Read the rest of this entry…

Filed under: EJIL Analysis, Genocide
 
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Yet More on Immunity: Germany brings case against Italy before the ICJ

Published on December 26, 2008        Author: 

For those of you who are not particularly interested in the law relating to immunity, I apologise for three consecutive posts on the topic. However, this is a week in which there just happen to have been many developments on this topic. This week Germany has insituted proceedings in the International Court of Justice against Italy (see here) alleging that through its judicial practice Italy has in recently years repeatedly disregarded the jurisdictional immunity due to Germany as a Sovereign State. The Press Release from the ICJ states that, according to the German Application:

“The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008″, Germany “is concerned that hundreds of additional cases may be brought against it”.

The Applicant recalls that enforcement measures have already been taken against German assets in Italy: a “judicial mortgage” on Villa Vigoni, the German-Italian centre of cultural exchange, has been recorded in the land register. In addition to the claims brought against it by Italian nationals, Germany also cites “attempts by Greek nationals to enforce in Italy a judgment obtained in Greece on account of a . . . massacre committed by German military units during their withdrawal in 1944″.

The case clearly raises the question whether foreign States are immune in civil proceedings concerning violations of human rights and international humanitarian law. The case law on this question has, in recent years, been divided Read the rest of this entry…

 

The Two Faces of the Genocide Convention

Published on December 24, 2008        Author: 

In keeping with Christmas spirit, here’s my next post on the Genocide Convention.

Can a state be responsible for genocide? What does that even mean? Aren’t international crimes, in the sage words of the Nuremberg Tribunal, committed by men, not by abstract entities?Can a state even possess genocidal intent, a basic requirement for the crime of genocide?

A full answer to this question requires revisiting many old debates, particularly those during the drafting of the Genocide Convention and on then Draft Article 19 on state crimes of the International Law Commission’s project on state responsibility, that was removed from the final ILC Articles.

If there is one thing is made clear from an examination of the Convention’s travaux, as well as state practice, that is that states have excluded any form of state criminal responsibility for the crime of genocide or any other international crime. That does not mean, however, that no state responsibility exists. In my EJIL article on state responsibility for genocide, I’ve argued that the attribution model developed by the ILC, coupled with the fundamental distinction between primary and secondary rules of state responsibility, provides a simple answer to the conundrum of state responsibility for international crimes. If an individual commits an international crime such as genocide, and if the acts of this individual are attributable to a state, pursuant to the generally applicable secondary rules of attribution (if, for example, the individual is a state organ), than the state is responsible for the crime committed by that individual as an internationally wrongful act.

This responsibility is again not criminal, but the regular state responsibility recognized in international law, that carries with itobligations of cessation and reparation. It rests on a primary obligation of states not to have individuals whose acts are attributable to them to commit international crimes. Genocide is thus at the same time both an international crime, for which individuals are criminally responsible, and an internationally wrongful act, for which states to which the acts are attributable bear their own responsibility. That does not mean there is a ‘tort’ of genocide or ‘civil’ genocide in international law – genocide still, at all times, remains an international crime, and its elements must be proven to the exacting standards demanded by the relevant body of primary rules. Thus, for example, though a state – an abstract entity – cannot have genocidal intent, such intent of the individuals whose acts are being attributed to the state must be conclusively established.

The next question is whether this type of responsibility, that in my view undoubtedly exists in customary international law, also exists within the (jurisdictional) confines of the Genocide Convention. The ICJ gave an answer to this question in the Bosnian Genocide case.

Both at the preliminary objections and at the merits stage of the case the FRY/Serbia disputed the existence of a separate obligation of a state under the Convention not to commit genocide, asserting that the Convention was a classical international criminal law treaty, dealing with crimes committed by individuals, not states. All the Convention does is to require states parties to criminalize in their domestic law the crimes that it defines, and then prosecute the perpetrators of these crimes. Though Article IX of the Convention confers jurisdiction upon the Court to resolve disputes between contracting states ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’, this was, in Serbia’s argument, merely a compromisory clause which did not create substantive rights and obligations.

The Court disagreed. It held that ‘Article I [of the Convention], in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles [of the Convention]’ so that the ‘the Contracting Parties have a direct obligation to prevent genocide.’ Moreover, according to the Court, even though

Article [I] does not expressis verbis require States to refrain from themselves committing genocide …[i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.

(Genocide judgment, paras. 162, 165 & 166)

Though Serbia was on the facts not found responsible for the commission of genocide in Bosnia, the Court’s judgment affirmed the attribution model developed by the ILC and the distinction between primary and secondary rules. States can thus be brought before the ICJ under Article IX of the Convention not merely for failing to criminalize or prosecute genocide, but also for committing it through their organs or failing to prevent it.

In my next post I will deal with the territorial scope of state obligations under the Convention.

Filed under: EJIL Analysis, Genocide
 

Prosecution of Senior Rwandan Government Official in France: More on Immunity

Published on December 24, 2008        Author: 

French authorities have announced this week (see here) that a senior Rwandan official, Rose Kabuye, who is curently detained in France, will be allowed to travel to Rwanda for the Christmas holidays. Rose Kabuye was at the time of her arrest the Chief of Protocol to current Rwandan President Paul Kagame. She is accused (see here), under French Anti-Terrorism laws, of complicity to murder in connection with the killing in 1994 of then Rwandan President Juvenal Habyarimana. It was, of course, that murder which led to the Rwanda Genocide.  She was arrested in November at Frankfurt Airport (Germany) under an arrest warrant issued by French officials. She was subsequently transferred to France. Her arrest has worsened the already bad relations between Rwanda and France. They have also led to a diplomatic row between Rwanda and Germany and Rwanda has expelled the German Ambassador in the country.

Rose Kabuye’s arrest, detention and prosecution raises questions regarding the immunity of foreign officials from criminal prosecution in foreign domestic courts. The particular question at issue in the Kabuye case is: which State officials are entitled to personal immunity? Was it lawful for France to issue an arrest warrant for a senior Rwandan official and was it lawful for German authorities to execute that warrant? Or was (is) Rose Kabuye within that category of officials who are entitled to personal immunity from the jurisdiction of foreign States for so long as they serve in their official position?  Read the rest of this entry…

 
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Immunity and International Criminal Tribunals

Published on December 20, 2008        Author: 

Earlier this week, the Trial Chamber at International Criminal Tribunal for the Former Yugoslavia (ICTY) hearing the case against Radovan Karadzic issued a decision in which it stated that “According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals [para. 17 of the decision]“. The statement was made in the context of a ruling granting, in part, a request by Karadzic for the disclosure of certain documents by the Prosecutor.  Karadzic alleged that, at a meeting in Belgrade in July 1996, he reached an “immunity agreement” with US diplomat Richard Holbrooke in which he was promised that he would not face prosecution at the Tribunal if he withdrew from public life. He sought any documents in the possession of the Prosecutor concerning the alleged agreement and the meeting at which it was reached. He argued that the Holbrooke offer was attributable to the Tribunal because it was made in consultation with other members of the UN Security Council or believed to be so. The Trial Chamber ruled that the documents sought were not relevant to the preparation of Karadzic’s defence other than being of potential relevance to in the determination of any eventual sentence. It considered “it well establihed  that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law [para. 25].”

Although Karadzic and the Trial Chamber discussed the alleged agreement in terms of immunity, the suggestion being that it related somehow to immunities conferred by international law, it may have been more accurate to refer to it as an amnesty agreement. Afterall, the suggestion in the alleged agreement was not that Karadzic was entitled to immunities which international law ordinarily accords but rather that the tribunal would refrain from prosecuting him.

The Trial Chamber’s view that international law immunities do not apply to prosecution for international crimes before international criminal tribunals is erroneous. Read the rest of this entry…

 
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60 Years of the Genocide Convention

Published on December 15, 2008        Author: 

Many thanks to Dapo for inviting me to blog here at EJIL: Talk! – hopefully the blog will turn out to be as successful in the blawgosphere as the EJIL is in print. In the next couple of weeks I intend to write on various topics, first about certain issues regarding the the Genocide Convention, which has had its sixtieth anniversary last week, on December 9th.

On any account, the Convention is an extraordinary treaty, a historic pronouncement by states that the practice of exterminating human groups merely on account of their nation, race, religion or ethnicity, is something that can never condoned or resorted to. At the same time, the Convention is in many ways a deeply disappointing instrument.

One, rather obvious item of disappointment would be its record of compliance. How many genocides, exactly, has the Convention on the Prevention and Punishment of the Crime of Genocide actually prevented or punished? In the face of, say, Darfur, it is hard to escape the impression that the Convention has hardly been a success. Some authors have even conducted empirical studies suggesting that the Convention has contributed little or nothing to the actual compliance with the norms that it enshrines (see here, at 1981-1982).

For what it’s worth, I believe that this initial reflex of disappointment should be resisted. Before we ask ourselves whether the Convention does what it was supposed to do, we need to look at what it actually says. And it says very, very little. The definition of the crime of genocide requires the specific intent to (physically or biologically) destroy a national, ethnic, racial, or religious group, this enumeration of protected groups being exhaustive. The narrowness of this definition is such that it excludes the vast majority of acts that most lawyers, and by far the majority of the general public, think of as genocide.

Read the rest of this entry…

Filed under: EJIL Analysis, Genocide
 

EJIL:Talk! welcomes Guest Blogger Marko Milanovic!

Published on December 15, 2008        Author: 

We are pleased to welcome on EJIL:Talk! Marko Milanovic who will be a guest blogger over the coming weeks. Marko obtained his first degree in law from the University of Belgrade, Faculty of Law and his LLM from the University of Michigan. Marko is a prolific young international law scholar and has published two articles in the European Journal of International Law on State Responsibility for Genocide (see here and here). He has also published in the Leiden Journal of International Law, the Human Rights Law Review, the International and Comparative Law Quarterly and the International Review of the Red Cross. He is currently working on a PhD thesis at  the University of Cambridge which will be on the extraterritorial application of human rights treaties. Previously, he served as a Law Clerk to Judge Thomas Buerganthal at the International Court of Justice. He is an Associate at the Belgrade Centre for Human Rights where he has been involved in litigation before the European Court of Human Rights and the Constitutional Court of Serbia.

Some of you might have read some of Marko’s posts over on Opinio Juris where he and I have in the past engaged in vigorous discussion on many issues, before meeting in person at an EJIL Symposium held in Florence in 2007.

We look forward to his contribution to the blog.

Filed under: EJIL, EJIL Analysis
 
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Welcome to EJIL:Talk!

Published on December 12, 2008        Author: 

Some readers might wonder why the European Journal of International Law has decided to launch a blog. An explanation of this would help in identifying the goals of the blog and in setting out what we seek to achieve. This explanation can be viewed by clicking on More about EJIL:Talk! (to the right) but I thought it best to put it in a prominent place on the main page.

EJIL already has a homepage www.ejil.org, the autonomous website of the European Journal of International Law. Our website was a pioneer long before publishers such as our current publisher, OUP, moved into digital journal publishing, and it is distinct from all other mainline journals of which we are aware. Not only is a sizeable portion of current content made free to the reader, but all content becomes free one year after publication – the scholarly world’s Napster! I say all this to indicate that we are not parvenus to the notion of digital internet publishing

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g.  the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for aggressively bringing in younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to, and interest in, history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate…). If our new blog EJIL:Talk! is successful, it will continue to reflect those EJIL sensibilities on the internet but enable us to effect a certain mutation in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Our plan is to allow the members of our Scientific Advisory Board to host the blog on a rotating basis, with Dapo Akande  serving as our inaugural guest editor.

Please help make EJIL:Talk! a successful blog and, indirectly, EJIL an even more successful Journal.

Filed under: EJIL, EJIL Analysis