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The Security Council and Human Rights: What is the role of Art. 103 of the Charter?

Published on March 30, 2009        Author: 

At last week’s ASIL meeting there was a panel on whether the United Nations Security Council is bound by human rights law. The panelists (Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Linos-Alexander Sicilianos, University of Athens  & Gráinne de Búrca, Fordham University School of Law) discussed cases such as the Kadi decision of the European Court of Justice, Al Jedda (House of Lords), Sayadi (Human Rights Committee and Behrami (European Court of Human Rights). These cases have been the subject of posts on this blog (for Kadi, see here and here, for Sayadi, see here and for Behrami, see here). One of the things that strikes me about much of this discussion is the use made of Article 103 of the UN Charter. That article provides that:

In the event of 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.

Of the four decisions mentioned above, only the Al Jedda decision discusses and applies Art. 103. According to Lord Bingham,

The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1) [of the European Convention on Human Rights]. (para. 26)

The House of Lords held that the Security Council authorisation to detain the appellant did indeed bring Art. 103 into play (on the theory that Art. 103 also extends to authorisations) and that rights under the ECHR were qualified to the extent that they conflicted with that authorisation. Some have criticised the ECJ in Kadi  and the Human Rights Committee in Sayadi for not evening mentioning Art. 103 and for failing to take the Al Jedda approaching (for some more discussion of this issue see here and here).

However, the role of Art. 103 is often overplayed in these debates concerning the conflicts between Security Council obligations and human rights law.  There are 2 overlapping questions here: (i) Is the Security Council bound by human rights norms when it acts (eg in combatting terrorism, imposing sanctions or in authorising action in peacekeeping or peace enforment)?; (ii) are States bound to apply Security Council decisions that may conflict with the human rights obligations of those States?.  Art. 103 does not and cannot answer the first question. Art. 103 should not be regarded as the starting point in answering the second question. Furthermore one may not even reach Art. 103 in answering that latter question. Read the rest of this entry…

 

Domestic Enforcement of Decisions of International Tribunals

Published on March 27, 2009        Author: 

I am at the American Society of International Law’s Annual Meeting and attended a panel on the domestic enforcement of decisions of international tribunals.  The panelists, which included distinguished presenters Professors Lori Fisler Damrosch of Columbia University and Andreas Paulus of Gottingen, spoke about the Medellin case of the US Supreme court, about the Kadi decision of the European Court of Justice and comparative perspectives from Canada and elsewhere. Listening to the presentations – which were very good – two questions occurred to me:

1) There must be more practice regarding the domestic implementation of decisions of the International Court of Justice and other international tribunals than is commonly assumed. In Medellin, Chief Justice Roberts stated that:

Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory nations.  . . . [N]either Medelln nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. … [T]he lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts.

It may well be that Chief Justice Roberts is right that no nation treats ICJ judgments as binding in domestic courts. But I wonder whether that is actually so. In particular, it seems to me that looking at the practice of those States that have been involved in territorial and boundary disputes before the ICJ (or international arbitration) would tell us much about whether States regard ICJ decisions as automatically binding in their domestic legal systems. Whenever the ICJ or a tribunal rules that a territory which was previously under the administration of one State actually belongs to another (eg Cameroon v. Nigeria or Temple of Preah Vihear), the decision will need to be implemented in domestic law. In general, there has been good compliance with ICJ decisions on territorial/boundary disputes. So, the question is how have these decisions been implemented?Have the losing States passed domestic legislation or have they  just taken the necessary steps for implementation without passing such legislation. In order to have full compliance, the courts of these states will need to consider that the territory in question is no longer within the jurisdiction of their State.

2) I wonder whether there are any international law impediments to the enforcement in national courts of monetary compensation awarded by international tribunals against a State. Read the rest of this entry…

 

Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

Published on March 24, 2009        Author: 

The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.

 In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that

 Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

 The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal. Read the rest of this entry…

 

Distinctions between the Legal Position of ICC Parties and Non-Parties Regarding Aggression

Published on March 21, 2009        Author: 

The International Criminal Court (ICC) recently released the latest report of the Special Working Group (of the Assembly of States Parties) on the Crime of Aggression.  Art. 5 of the ICC Statute includes the crime of aggression as one of the crimes within the jurisdiction of the Court. However, the Court may only exercise jurisdiction over it once a provision has been adopted defining the crime and setting out the conditions under which the Court shall exercise over it. In anticipation of the ICC Review Conference to be held in 2010, the Special Working Group has been developing proposals on aggression.  The latest report reveals that the members of the Group are largely agreed on the definition of the crime of aggression which is based on General Assembly Resolution 3314 (1974) on the “Definition of Aggression.” According to the definition proposed by the Group:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

“Act of aggression” is then said to mean:

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: . . .

However, deep divisions remain over the role of the Security Council when attempts are made to invoke the jurisdiction of the ICC over aggression. In particular there is no agreement on whether the approval of the Security Council is required for the Prosecutor to proceed with an investigation regarding aggression and on whether a determination of aggression by the General Assembly or the International Court of Justice should suffice for the Prosecutor to proceed.  Questions also remain as to how the amendments regarding aggression are to become operatonal and as to whether the Security Council may refer a situation concerning aggression to the ICC before the entry into force of the amendments but after the Review Conference adopts a definition. The latter issue raises questions about the interpretation of Art. 121(5) of the Statute and whether there is a difference between the position of State parties and non-parties under the Statute. Read the rest of this entry…

 
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The Obama Administration’s Interpretation of the Authority to Detain at Guantanamo: Some Areas of Progress

Published on March 18, 2009        Author: 

In his post below, Marko takes the view that the Obama administration position on the authority to detain in Guantanamo in internally contradictory and based on a misinterpretation of international humanitarian law. While I agree with Marko that some of the analysis offered by the Obama administration in its recent brief  is confused and confusing, I am of the view that the position taken by the current administration regarding the authority to detain is progressive.

As Marko and Deobrah Pearlstein at Opinio Juris have pointed out the substantive standard for detention adopted by the Obama Administration differs little from the standard adopted by the Bush administration. This notwithstanding, there are at least two points in the Obama Administration’s brief where the tone and use of international law is  different from and better than the position taken by the previous administration. I leave aside the fact that this administration claims its authority to detain from the 2001 Authorisation for the Use of Military Force statute (AUMF) rather than from Presidential power.

The dropping of the term “enemy combatant”

The first things the Obama administration should be lauded for is that no longer uses the term enemy combatant with respect to the decision to detain. The Bush administration had tied the authority to detain persons at Guantanamo to the detainee  being found to be an “enemy combatant” (see the July 2004 order establishing the Combatant Status Review Tribunal). However, IHL has never predicated detention power on whether the person is a combatant. IHL envisages and authorises the detention of enemy combatants (see the 1949 Geneva Convention (GC) III for POWs and 1949 GC IV authorising detention of civilians who are saboteurs or are otherwise unprivileged belligerents). However, IHL also envisages and authorises detention of a broader group of individuals than those who can be regarded as combatants. The Fourth Geneva Convention (GC IV) on the Protection of Civilians  is quite clear on this as it allows belligerents to detain (intern) alien nationals “if the Security of the Detaining Power makes it absolutely necessary” (Art. 42) or for “imperative reasons of security” (Art. 78). The first provision relates to protected persons with the territory of the party to an armed conflict and the latter relates to situations of occupation.  At this pointof the argument, it matters little whether these provisions apply on their own terms to Guantanamo. They are used here to support the claim that under IHL detention is not tied to enemy combatantcy. But if IHL allows detention of a broader group than enemy combatantcy, why is it a good thing that Obama administration no longer ties detention to whether a person is an enemy combatant?

Read the rest of this entry…

 

The Obama Administration’s Total Misinterpretation of IHL Regarding the Authority to Detain Suspected Terrorists

Published on March 14, 2009        Author: 

Yesterday the Obama administration filed a brief with the US District Court for the District of Columbia regarding its detention authority of persons previously classified by the Bush administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the legal basis of the detention of suspected terrorists.

The brief has already made headlines because the Obama administration decided to scrap the rightfully much maligned term ‘enemy combatant.’ The one other notable legal development is that the administration also rejected the Bush position that it had inherent constitutional authority to detain these persons, but based its authority solely in a statute, the 2001 Authorization for the Use of Military Force (AUMF).

The substantive standard for detention offered by the Obama administration, however, is almost identical to the one offered by the Bush administration:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

(Brief at 1)

As explained by Deborah, the only difference is that the Obama administration requires persons to have substantially supported Taliban or Al-Qaida, while for the Bush administration support alone sufficed. This change is obviously nothing more than cosmetic.

Read the rest of this entry…

 

Who is Obliged to Arrest Bashir?

Published on March 13, 2009        Author: 

Last week, the International Criminal Court issued an arrest warrant for the Sudanese President, Omar Al Bashir. The Pre-Trial Chamber of the ICC directed the ICC Registry to transmit a request for arrest and surrender of Bashir to (i) all States Parties to the ICC Statute and (ii) all United Nations Security Council members that are not States Parties to the Statute. Does this mean that these States are under an obligation to arrest Bashir were him to travel to their territory? Are these States even permitted by international law to arrest Bashir? It remains to be seen whether Bashir would be bold enough to leave Sudan. For example would he attend the Heads of States meeting of the African Union or perhaps wish to attend the annual session of United Nations General Assembly in New York. Were Bashir to travel abroad, States, particularly non-parties to the ICC Statute (like Ethiopia and the United States) would be faced with these tricky questions

 The answer to these questions depend on the extent to which international law accords immunity to Heads of States and on the legal nature of Security Council referrals of situations to the ICC. Many have noted the significance of an international tribunal issuing an arrest warrant for a serving Head of State. Of course, this is not the first time that this has happened. The ICTY issued a warrant for Milosevic while he was head of the State of the Federal Republic of Yugoslavia and the Special Court for Sierra Leone indicted Charles Taylor while he was President of Liberia. Christine Chung notes in her post below that there has been no hand-wringing by other States about Bashir’s immunity and suggest that this is a matter of interest only to academics. States may not have commented on this issue but this is only because States have not as yet been faced with the question. States will only be faced with the question if Bashir travels abroad and they are called upon to arrest him. In that scenario, States will have to consider not only this particular case but also the precedents that they wish to set. They will also have to consider what obligations they may have under the ICC Statute, under other treaties (including the UN Charter) and under customary international law.

While, the ICC Pre-Trial Chamber implicitly answered one part of the immunity question in its decision, it has not disposed of the entire question. The Pre-Trial Chamber in para 41considered that

the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.

The PTC reached this decision based on four considerations the most important of which are that: (i) Art. 27 of the ICC provides that the Statute applies equally to all persons without distinction based on official capacity and that immunities which may attach to official capacity under national or international law shall not bar the Court from exercising jurisdiction; and (ii) the Security Council by referring the Darfur situation to the Court has accepted that the investigation and prosecution shall take place in accordance with the framework set out in the Statute.

Implied in the Court’s statement is the view, that the Security Council has implicitly adopted Art. 27 and thus implicitly sanctioned the exercise of jurisdiction by the Court over a serving head of State who would otherwise be immune from jurisdiction. I do not disagree with this. Any other view would leave Article 27 without effect.

However, the Court does not have power of arrests. Unless Bashir surrenders voluntarily, it will have to depend on a State to arrest Bashir. The question that then arises is whether Bashir is immune from arrest by national authorities. Read the rest of this entry…

 

Attribution of Conduct to International Organizations in Peacekeeping Operations

Published on March 10, 2009        Author: 

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

  Read the rest of this entry…

 
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Justice for Bashir: What’s Different Today?

Published on March 5, 2009        Author: 

Christine Chung is a Senior Fellow at the Schell Center for International Human Rights, Yale Law School where she teaches “The International Criminal Court: Prospects for Global Justice.” Ms. Chung was the first senior trial attorney appointed at the Office of the Prosecutor of the International Criminal Court and worked in The Hague from 2004 to 2007.

If you’re looking for the justification for the front-page media headlines about the ICC warrant naming Sudanese President Omar al-Bashir, there are two, to my mind. First, the world’s permanent international criminal court has charged a sitting head of State, and sister States aren’t close to hand-wringing over immunity. (My academic colleagues are a different matter – read, for example, Marko and Dapo). Yesterday’s decision might be the nail in the coffin of the era in which heads of State escaped being called to account for perpetrating atrocities.

Second, the decision of Pre-Trial Chamber I to decline to include the charge of genocide requested by Prosecutor Luis Moreno Ocampo (by a 2-1 vote) reinforced that pursuing a genocide charge is, for an international prosecutor, fraught with peril. The old legal issues of how to define an “ethnic” group and where to find the specific intent to destroy a group (in the usual case, where there is no direct evidence) were very much in evidence in the Chamber’s split opinions. On top of those, the Judges wrestled with questions about the degree to which the ICC should adopt or follow genocide jurisprudence from the ICJ and the ad hoc tribunals, the proper interpretation of the “reasonable grounds” standard applicable at the stage of evaluating a request for an ICC arrest warrant, and how to reconcile the Rome Statute provisions with the ICC Elements of Crimes. Bottom line: the need to settle the law of this new Court, if anything, further complicates the already extremely difficult business of proving genocide.

As fascinated as we lawyers are by judicial decision-making, though, it’s more important in Bashir’s case to identify what did not change yesterday. Read the rest of this entry…

 
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ICC Issues Arrest Warrant for Bashir, but Rejects the Genocide Charge

Published on March 4, 2009        Author: 

(Updated)

Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

Read the rest of this entry…