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Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

Published on January 29, 2009        Author: 

In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘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.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

Read the rest of this entry…

 

A Response to Simon Chesterman “We Can’t Spy….If We Can’t Buy!”

Published on January 26, 2009        Author: 

Martin Trybus is Professor of European Law and Policy and Director of the Institute of European Law at the BirminghamLawSchool of the University of Birmingham, UK. He is the author of European Defence Procurement Law and European Union Law and Defence Integration and co-edited European Security Law with Nigel White

Chesterman (see here) deals with an interesting aspect of federal US American public procurement law. While touching on certain foreign relations dimensions of the topic, the thought-provoking article discusses domestic rather than international law. However, since the federal intelligence budget of the United States is most probably the largest in the world and privatisation in this area is unlikely to be more advanced in any other country, large parts of his analysis are relevant and important for the rest of the world. Other countries toying with the idea of privatisation of their intelligence services can learn from Washington’s experience accumulated during the last eight years.

 

The primary objective of public procurement is for the government to acquire whatever goods, works, and services it needs to operate from the private sector. This primary objective is certainly a legitimate motivation for the privatisation of some intelligence services when government agencies are lacking the personnel, know-how, and equipment to provide them. Nevertheless, as most concisely explained by Steve Schooner in “Desiderata: Objectives for a System of Government Contract Law”, (2002) 11 Public Procurement Law Review 99-102, there are a number of other important objectives to be served by public procurement. In any national context the procurement of defence and intelligence supplies and services has to operate within a triangle of three objectives: (1) national security, (2) value for money, and (3) democracy and the rule of law. National security is the objective of the defence and intelligence efforts of any country. Procurement policy and law must ensure that this basic objective is not compromised. The notion of ‘value for money’ requires the procurement process to ensure that the government purchases goods and services under the economically most advantageous terms, most notably at the lowest possible prices without compromising quality and other economic considerations. There is a connection between national security and value for money since the earlier is affected when the security budget is depleted through inefficient procurement and necessary services cannot be provided as a result. Democracy and the rule of law form the basis of a country such as the United States. Not even the national security objective can be allowed to compromise these most basic principles on which any democracy is built. A balance needs to be struck between the three corners of this triangle.

 

The most striking point highlighted in Chesterman’s article is that the privatisation of intelligence services in the United Sates appears to compromise all three objectives. Read the rest of this entry…

Filed under: EJIL, EJIL: Debate!
 
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A Comment on Simon Chesterman on the Privatization of Intelligence

Published on January 25, 2009        Author: 

Prof. Chesterman’s article does an excellent job in exposing and explaining the phenomenon of the privatization of intelligence in recent years, particularly in the United States. To someone who, like myself, has followed the PMSCs debate only on the margins, the information that 70% of the US intelligence budget is spent on private contractors came as somewhat of a shock.  Chesterman explains very well the accountability and oversight gaps caused by the outsourcing of both intelligence collection and intelligence analysis. Especially troubling, of course, are situations where individuals’ life and liberty are put at the disposal of private contractors, as for example during interrogations or renditions.

Chesterman also explains well the specific problems that the outsourcing of intelligence, as opposed to PMSCs generally, poses for accountability. These are its inherent secrecy, the (perverse) incentives caused by the insertion of a profit motive into intelligence activites, and the difficulty of establishing which intelligence functions qualify as ‘inherently governmental’, and thus not outsourcable. (Not to mention the sheer callousness of some people working in the field, who can come up with a slogan as frivolous as is ‘We Can’t Spy… If We Can’t Buy’, in a Powerpoint presentation no less, that is featured in the title of the article.)

The article of course focuses on the United States, which both wields an enormous intelligence apparatus and where the privatization of intelligence is most pervasive. A question that I would have liked answered is to what extent is the phenomenon of privatization of intelligence (still) confined to the United States, and explained by its own idiosyncrasies. Do we have, for example, have any comparable data on the United Kingdom?

This brings me to my only really substantive comment – at the time being at least, what does international law, as opposed to domestic US law for example, have to say on the privatization of intelligence? I understand that Chesterman did not want to rehearse arguments on, say, state responsibility and PMSCs – in that regard, Chesterman’s and Carsten Hoppe‘s articles complement each other nicely. I would still have liked to see some discussion on what, if anything, international law has to contribute to managing the problems posed by the privatization of intelligence, particularly those of its aspects which do not necessarily apply to PMSCs generally.

Filed under: EJIL, EJIL: Debate!
 
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Old Law and New Trends – A Rejoinder to Professor Cryer and Hannah Tonkin

Published on January 24, 2009        Author: 

Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for  plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers. Read the rest of this entry…

 
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The Privatization of Intelligence

Published on January 23, 2009        Author: 

Editors note: Over the coming days we will be discussing (see here) Professor Simon Chesterman’s article: “We Can’t Spy . .  . If We Can’t Buy!: The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions”  (2008) 19 EJIL 1055 (available here).

Simon Chesterman is Global Professor and Director of the New York University School of Law Singapore Programme and Associate Professor of Law at National University of Singapore, Faculty of Law. His publications include:  From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007) (ed. with Chia Lehnardt), Shared Secrets: Intelligence and Collective Security (Lowy Institute for International Policy, 2006)

This piece builds on two discrete areas of research that I’ve been pursuing for a couple of years and are now beginning to intersect.

The first is the privatization of the military and security sector. Building on the project on Global Administrative Law at New York University School of Law, the work that I’ve done with colleagues like Chia Lehnardt has focused on regulation of private military and security companies (PMCs or PMSCs). One product of that research was the book, From Mercenaries to Market, and a key argument was that we need to take the emerging market for force seriously – rather than pursuing the abolitionist approach that had long dominated discussion of this issue within the United Nations.

The second area is the oversight and accountability of intelligence services. I now teach a course on “Intelligence Law” at the National University of Singapore under the auspices of the NYU School of Law Singapore Programme and have written about the difficulty of using law that must normally be public to regulate government activities that must often be kept secret.

The article partly documents the privatization of intelligence, but also suggests the beginnings of an answer to a question that has long dogged debates over PMCs: what can and what cannot be outsourced?

Though it still lags behind the privatization of military services, the privatization of intelligence expanded dramatically with the growth in intelligence activities after September 11. This has seen an enormous increase in the money spent on intelligence (dominated by large items such as spy satellites) but also in the proportion of personnel working on contract. At the CIA’s station in Islamabad, for example, contractors reportedly outnumber government employees three-to-one. Read the rest of this entry…

Filed under: EJIL, EJIL: Debate!
 

Response to Carsten Hoppe: Some other Possible State Responsibility Issues

Published on January 21, 2009        Author: 

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.

 

I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!

  

The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaragua and reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide case said that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point. Read the rest of this entry…

 
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A Response to Carsten Hoppe: Minimising the regulatory gap – a flexible interpretation of Article 5 of the ILC Articles

Published on January 19, 2009        Author: 

Editors note: Hannah Tonkin is currently a Law Clerk to President Judge Kirsch in the Appeals Chamber of the International Criminal Court. She is also writing a DPhil at the University of Oxford on States’ International Obligations to Control Private Military and Security Companies.

Carsten Hoppe’s article highlights the regulatory “gap” arising from the application of the traditional rules of attribution to modern private military and security companies (PMSCs) hired by a state in armed conflict or occupation.  According to Hoppe, states that hire PMSC personnel “will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.”  Hoppe points to two main situations in which this accountability gap may arise:

  1. Where the private contractor is “empowered by the law of that state to exercise elements of the governmental authority” within Article 5 of the International Law Commission’s Articles on State Responsibility (ILC Articles), but is not in fact “acting in that capacity in the particular instance” when he/she engages in the relevant conduct; and
  2. Where the contractor does not fall within Article 5 and is not in fact acting under state orders, direction or control sufficient to satisfy Article 8 of the ILC Articles.

Hoppe argues that the second category is particularly pertinent to guarding and protective services, since these activities do not conclusively fall within Article 5.  Certainly, in many cases it will be impossible to establish the requisite degree of state control over these PMSC activities to satisfy Article 8 of the ILC Articles, especially if one applies the stringent threshold of “effective control” established by the ICJ in Nicaragua and reaffirmed in the Genocide case.

Yet before placing all reliance on the hiring state’s positive obligations, we should first consider whether the majority of guarding and protective services might in fact fall within Article 5.

There are three requirements for the attribution of PMSC conduct to the hiring state pursuant to Article 5.  First, the PMSC operation must constitute an exercise of governmental authority.  Second, the PMSC must be “empowered by the law of the state” to exercise that authority.  Third, the contractor must in fact be acting in the exercise of governmental authority, rather than in a purely private capacity, in the particular instance when he/she engages in the conduct.

There is no international consensus as to the precise scope of’ “governmental authority”.  The very concept requires value judgments, which themselves rest on political assumptions about the proper sphere of state activity.  Read the rest of this entry…

 
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Online Discussion of Private Military Companies and International Law

Published on January 16, 2009        Author: 

This is a Featured Post. Some more recent posts appear below.

One of the purposes of this blog is to provide a forum for discussion of the scholarship that appears in the European Journal of International Law. From time to time, we will host  online exchanges which respond to, as well as provide informed commentary and exchanges on articles that appear in EJIL. This exchange of ideas sometimes occur in the print version of the Journal but this inevitably means delays in responses or a lack of an opportunity to have the repeated exchanges that would test ideas and flesh out views. We hope that such an interactive, yet informed and enlightening, conversation can take place on,  and, be enhanced by, this more interactive and quicker forum.

We begin this series by hosting an online discussion (see below)  of some of the articles appearing in the latest issue of the European Journal of International Law (see table of contents here). That issue includes a symposium on “Private Military Contractors and International Law”.  Those papers are the product of a symposium held last June at the European University Institute in Florence as part of a joint effort of the EJIL and the EU Framework Programme 7 project “Regulating Privatization of War: The Role of the EU in Assuring Compliance with International Humanitarian Law and Human Rights ” (for more on that project see http://www.priv-war.eu).  We will be continuing the discussion here over the coming days. In order to facilitate this online discussion of the articles, EJIL is providing free access on its website  to most of the articles in the current issue. Read the rest of this entry…

 
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The Buck Stops Here: State Responsibility and PMCs

Published on January 16, 2009        Author: 

Editors note: Carsten Hoppe is on the Project Management team of the Priv-War Project  and Executive Director of the European Society of International Law. He is currently writing a PhD, on the same topic as his article, at the European University Institute. He has a JD from the University of Michigan Law School and has previously clerked for Judge Bruno Simma at the International Court of Justice. His article “Passing the Buck: State Responsibility for Private Military Companies”, (2008 )19 EJIL 989 -1014 is available  here.

What makes the video below from the Iraq war more disturbing than the countless others we have seen?

First off, Elvis Presley. The scenes of bullets flying into civilian vehicles are cut to a trivializing soundtrack of “Mystery Train” by the King of Rock ’n Roll. But what may be even more disturbing is that the video does not show a single soldier. Rather, it is attributed to a UK Private Military Company under contract with the United States, an employee of which claims to have shot the video.  Granted, it will be very difficult to assess who is ultimately responsible for the shootings. But this problem is not the end, but rather the beginning of my inquiry. How can it be that private company employees get to drive around in a war zone with assault rifles and machine guns, clearing the road of suspected attackers in approaching vehicles? Is it true that states hiring these Private Military or Security firms [PMSCs / contractors] can outsource their international responsibility by way of a simple contract?

Of course, at present, states are free under international law to outsource functions in armed conflict, such as guarding and protection, interrogation, or even combat, which formerly were in the exclusive domain of soldiers. However, the article and my broader work on PMSCs for the Priv-War Project and my dissertation demonstrate that, while they may spend the money, they are not free to “pass the buck” with respect to responsibility. Thus the most important conclusion of my piece is that where contractors function as armed groups and are responsible to the party through their obligations under a contract, responsibility for all their acts, as first envisaged by states in 1907, will lie for the hiring state.

To get to this point, I first compare responsibility of a state for a classical soldier to all the options for attribution of private conduct. In this analysis, a responsibility gap becomes evident: unless a state outright incorporates the contracted personnel into its armed forces, or the contractors can be regarded as completely dependent on the state (a tough burden of proof to meet), the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.

In a further step, I show that positive obligations of the state under IHL narrow this gap to some degree. Read the rest of this entry…

 
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Editorial: EJIL Vol. 19:5

Published on January 13, 2009        Author: 
Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,1 Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.2 Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

Read the rest of this entry…

  1. Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. []
  2. Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. []
Filed under: Editorials, EJIL, Journals