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The Hague Court of Appeal on Dutchbat at Srebrenica Part 2: Attribution, Effective Control, and the Power to Prevent

Published on November 10, 2011        Author: 

 Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers51 Harv. Int’l L.J. 113 (2010)

Introduction:

In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.

The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.

Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry…

 
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UNESCO Approves Palestinian Membership Bid – A Case for US Countermeasures Against the Organization?

Published on November 8, 2011        Author: 

Christiane Ahlborn is Ph.D. Candidate at the Amsterdam Center for International Law and member of the project on Shared Responsibility in International Law (SHARES)

On 31 October 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) approved the bid of Palestine for full membership with the necessary two-thirds majority. Although 107 UNESCO States voted in favor of Palestinian membership, the approval also faced notable opposition by 14 States. The overall number of 173 votes cast included 52 abstentions. Among the States voting against the bid were the United States, Canada and several EU member States, including Germany and the Netherlands. While the diverging positions of EU member States thus reveals once again the lack of unanimity in EU external relations policy, the US disapproval of the Palestinian UNESCO membership may have more serious consequences at the level of US-UNESCO relations. For after the approval of Palestine’s membership bid, the US immediately announced that it would cut off its funds to UNESCO, which amount to 60 million USD annually. This decision is based on several US laws that prohibit the US government to provide funds to any United Nations agency or affiliated organization that “accords the Palestine Liberation Organization the same standing as member states” (see P.L. 101-246, Title IV [1990] and P.L. 103-236, Title IV [1994]).

International Responsibility for Withholding Membership Dues

Since the US is the largest contributor to the UNESCO budget with a share of 22 percent, its decision to withhold its contributions will most likely impede the effective functioning of the organization. As the Director-General of UNESCO stated on 2 November 2011, the continued withholding of dues may severely affect UNESCO’s activities in a variety of areas. UNESCO already felt the repercussions of the lack of US funding after 1984 when the United States withdrew from UNESCO due to the increasing politicization of the Organization, rejoining only in 2003 (for a discussion of the reasons for the withdrawal see Hans N. Weiler, ‘Withdrawing from UNESCO: A Decision in Search of an Argument’ (1986) Comparative Education Review 132).

Considering the potentially detrimental effects of US withholdings, this contribution seeks to examine whether the US could be held internationally responsible for its acts under the law of international responsibility. After all, Article IX of the constituent instrument of UNESCO (the UNESCO Constitution) states that member States of the organization have a “financial responsibility” towards the Organization, i.e. an obligation to provide the Organization with the necessary financial resources, as decided by the General Conference of UNESCO. Although this obligation arguably could have been formulated in more concrete terms, it is suggested that the United States would breach its obligations under the UNESCO Constitution by withholding its membership dues, and accordingly be under a secondary obligation to make reparation either in kind and/or by means of compensation.

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Kevin Heller Book Discussion Wrap-Up

Published on November 5, 2011        Author: 

We again wish to extend our thanks to all of the discussants of Kevin Heller’s book on both EJIL: Talk! and Opinio Juris. In addition to Kevin’s introduction, readers can find at the specified links the contributions of Michael Marrus, Alexa Stiller, and Rob Cryer with Kevin’s reply on EJIL: Talk!, and those of Dave Glazier, Detlev Vagts, Roger Clark, and Devin Pendas with Kevin’s response on Opinio Juris. We hope our readers enjoyed our first joint book discussion.

As part of our joint Opinio Juris/EJIL: Talk! symposia on Kevin and Marko’s books, Oxford University Press has offered to give readers a 20% discount on each book.  To purchase Kevin’s The Nuremberg Military Tribunals and the Origins of International Criminal law, click here.  When you add the book to your OUP basket, the 20% discount will automatically be deducted.  The discount is good until 31 January 2012. We will post a similar link for Marko’s book when we host that discussion.

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Response to Marrus, Stiller and Cryer

Published on November 4, 2011        Author: 

I am indebted to Professors Marrus, Stiller, and Cryer for their responses to my book – their criticism as well as their praise.  (Though I confess to considerable relief that the praise seems to outweigh the criticism.)   Writing this reply is no easy task, not least because I find myself in agreement with much of what all three professors have to say.  But I’ll respond as best I can below.

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The Nuremberg Military Tribunals, Naturalism, Authority, and Causation

Published on November 3, 2011        Author: 

Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School.

Let me say at the outset that I think that Kevin has done an excellent job on the book (as have OUP in its production). I should probably also say, in the interests of full disclosure, that I flatter to call myself a friend of Kevin’s and have enjoyed the discussions we have had over aspects of the book during its gestation. The book is exceptionally well researched and written, and fills a significant lacuna in the literature. It has a strong narrative flow, and skilfully entwines the historic and legal aspects of the cases. There are many rich seams to mine in the book, but I will limit myself to one, and one of the rare instances where I disagree with Kevin, at least a little. This is the issue of the legacy of the Tribunals.

We used to hear quite a lot about the Nuremberg legacy; often in terms that bemoaned its betrayal. The International Criminal Tribunals for Yugoslavia and Rwanda, and the Special Court for Sierra Leone are now all self-consciously attempting to shape their respective legacies. Sadly, it is not clear to me that, in spite of Telford Taylor’s hopes and desires, the Nuremberg Military Tribunals had much of a legacy. In contrast, in the book, Kevin is relatively upbeat about aspects of their legacy (although other aspects are characterised, rightly, as “a complete failure” (p.400)).

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Discussing Heller’s The Nuremberg Military Tribunals and the Origins of the International Criminal Law

Published on November 2, 2011        Author: 

Alexa Stiller is a Lecturer in the Department of History, University of Bern, Switzerland; e-mail: alexa.stiller [at] hist.unibe.ch

Kevin Heller has written a very important book that provides the first comprehensive legal analysis of the Nuremberg Military Tribunals (NMTs). His main argument is that the twelve trials are of paramount historical importance, not only because they created a huge amount of documentary evidence of the crimes of the Third Reich but first and foremost because the tribunals played an important role in the development of international criminal law (and to make this clear from the outset, I absolutely agree with his assumption).

Heller’s book is divided in five sections, each consisting of three chapters. Sections one and five, the origins of the NMT trials and the aftermath as well as their legacy, are the historical parts of the book, the middle sections are dedicated to a legal discussion of the Tribunals, the law and procedure, the jurisprudence, and the modes of participation and defenses that the Tribunals approved. Although Heller has written an essentially juristic book, he has no blinders on concerning historical methods. He tries to connect both disciplines and I highly appreciate the effort. In this comment I would like to show two aspects – strictly from the viewpoint of a historian – where his analysis does not make full use of the potential for differentiation. First, in examining the people who played an active role in the trials; secondly, in analyzing the interpretations and narratives in the courtroom. (This and the following reflections are presented in more detail in my co-edited volume Unearthing the Subsequent Nuremberg Trials. Transitional Justice, Trial Narratives, and Historiography. Oxford/New York: Berghahn 2012 (forthcoming)).

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A Comment on Kevin Heller’s Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on November 1, 2011        Author: 

Michael R. Marrus is Chancellor Rose and Ray Wolfe Professor Emeritus of Holocaust Studies and Adjunct Professor of Law at the University of Toronto, and the author of The Nuremberg War Crimes Trial l945-46: A Documentary History (Bedford Books).  His most recent book is Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Wisconsin).

Hats off to Kevin Jon Heller, not only for a splendid and comprehensively learned survey of these important trials, but also, and at long last, for putting the Nuremberg Subsequent Proceedings (as I still prefer to call them) properly on the legal and historical map.   As Heller acknowledges, the sad truth is that these twelve trials of 177 accused German war criminals – held under American auspices and in the American zone of occupation of Germany between 1946 and 1949 – have been relatively little studied; particularly when compared to the much more famous trial before the International Military Tribunal (IMT), familiarly known as the Nuremberg Trial.   Just a week ago I read an judicious book by a learned jurist who erroneously (as indeed with many of my students, not to mention distinguished historians, lawyers, judges, journalists and statesmen) referred to the Nuremberg Trials, in the plural, while intending to denote the proceedings before the IMT.  Egregiously, this error was once committed by none other than Brigadier General Telford Taylor himself, the man in charge of the Nuremberg Subsequent Proceedings, who entitled his book on the IMT The Anatomy of the Nuremberg Trials (sic), a work that has scarcely a word about the Nuremberg Military Trials.  Over and over again, colleagues will acknowledge, this mistake reappears – reminding us that the “Nuernberg Military Tribunals, Trials, War Criminals before the Nuremberg before the Nuremberg Military Tribunals under Control Council Law No. 10” (to cite the official reference to the so-called ‘Green Series,’ those trials’ proceedings, bound in green) or the “Subsequent Nuremberg Proceedings” or the “Nuremberg Subsequent Proceedings” have persistently failed to find a commensurate place in the scholarly discourse – or the discourse on justice-seeking following the end of the Second World War, or even, for that matter, the general discourse on international criminal law.  I cannot say that no one will commit this error after this important book appears; but Heller’s work will surely lend conspicuous authority to the requirement that the IMT be distinguished from the Nuremberg Trials!

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