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The African Union’s Response to the ICC’s Decisions on Bashir’s Immunity: Will the ICJ Get Another Immunity Case?

Published on February 8, 2012        Author: 

After deciding the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (about which I and others will have more to say on the blog soon), there is the prospect of the International Court of Justice (ICJ) being asked to decide another immunity case. At the summit of the Assembly of the African Union held last week in Addis Ababa, Ethiopia, African Heads of States and Heads of Government  requested:

“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also ” urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

Read the rest of this entry…

 

Exploiting A ‘Dynamic’ Interpretation? The Israeli High Court of Justice Accepts the Legality of Israel’s Quarrying Activities in the Occupied Palestinian Territory

Published on February 7, 2012        Author: 

 Valentina Azarov is a lecturer in human rights and international law and the chair of the Human Rights Program at the Al-Quds Bard College, Al-Quds University, East Jerusalem, Palestine. Formerly she worked as a legal researcher with Al-Haq, a Palestinian human rights organisation, with consultative UN ECOSOC status, and HaMoked-Centre for the Defense of the Individual, a legal aid human rights group that submits petitions before the Israeli High Court on violations of Palestinian rights in the occupied Palestinian territory. She is also an author for the International Law Observer.

On 26 December 2011, the Israeli High Court of Justice rendered its judgment in the case concerning Israel’s quarrying activities in the occupied Palestinian territory filed by the Israeli human rights organisation Yesh Din, who demanded that Israel terminate its quarrying activities since they violate Israel’s obligation as an Occupying Power to administer the occupied territory for the benefit of the local population (HCJ 2164/09 Yesh Din v The Commander of the Israeli Forces in the West Bank et al. (Unofficial English translation)). The judgment is an important occasion for examining the Court’s practice of applying international law to the manner in which the Israeli authorities’ administer the occupied Palestinian territory. By adopting a dynamic interpretation of the principles of the international law of belligerent occupation, in particular the ‘usufruct rule’ enshrined in Article 55 of the 1907 Hague Regulations, the Court’s ruling construes a right for the Israeli authorities to extensively exploit the natural resources in the Palestinian territory for the benefit of the Israeli private market. Among others, Gross’ Op-Ed on the judgment in the Israeli daily newspaper Haaretz, notes the purposive character of the Court’s argumentation, and the way in which its verdict violates the rules of the international law of belligerent occupation.

On 10 January 2012, Yesh Din submitted a request for a further hearing in the case with a larger panel of judges to examine a set of principled legal questions raised by the judgment. An amicus curiae brief was also presented to the Court by a group of Israeli international law scholars stating that the Court erred in its interpretation of Articles 43 and 55 of the Hague Regulations and concluding that the Court’s analysis is inconsistent with the most fundamental principles of the law of occupation.

Israel started operating quarries in the occupied Palestinian territory in the 1970s, with their production levels growing incrementally since. Today, there are ten quarries, eight of which are in operation. According to the petitioners, the majority of their yielded product (approximately 75%) is transferred for use in the Israeli construction market, whilst in some of these quarries the percentage of output transferred to the Israeli private market reaches 94%. The State claimed that the current level of production makes for about half a percent of the total potential production quota, and noted that Palestinian workers are being employed in the quarries and that royalties are paid to the Civil Administration, the Israeli military government in the occupied Palestinian territory, from the quarries’ operation (paragraph 1 of the judgment).

Read the rest of this entry…

Filed under: EJIL Analysis, Israel, Occupation
 

Peter Tomka Elected President of the ICJ

Published on February 6, 2012        Author: 

The judges of the International Court of Justice today elected Judge Peter Tomka as President of the ICJ, and Judge Bernardo Sepulveda-Amor as Vice-President. Two newly elected judges – Giorgio Gaja and Julia Sebutinde – today took up their seats, with the terms of Bruno Simma and Abdul Koroma having come to an end. The seat of former Judge Al-Khasawneh remains vacant until the elections for his successor, now scheduled for the end of April.

 
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Job Opportunity: British Red Cross Research Fellow to work on ICRC Customary International Humanitarian Law Study

Published on February 5, 2012        Author: 

The British Red Cross is seeking to recruit a Research Fellow to update the practice section of the study on customary international humanitarian law published by the ICRC. The post holder will be part of a three-person research team based at the Lauterpacht Centre for International Law at the University of Cambridge. Readers will be aware that the ICRC’s Customary International Humanitarian Law Study is now available online. The practice section of the Study is now updated regularly by the ICRC, in cooperation with the British Red Cross.

Further details of the position can be found here.

Filed under: EJIL Analysis
 
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Germany v. Italy: Germany Wins

Published on February 3, 2012        Author: 

The International Court of Justice this morning rendered its judgment in the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (judgment; case materials). As widely expected, Germany won, and won hands down. On the main issue of jurisdictional immunity the Court decided in Germany’s favour by 12 votes to 3 (Judges Cancado Trinidade and Yusuf and Judge ad hoc Gaja dissenting; UPDATE: having skimmed the dissents, it seems that only Judge Cancado Trinidade relied on the jus cogens immunity override theory). On all other claims – immunity from enforcement, jurisdictional immunity in exequatur proceedings and reparation – the Court decided in favour of Germany by 14 votes to 1 (only Judge Cancado Trinidade dissenting). So there’s been no serious split in the Court, to the eternal regret of this year’s Jessup competitors, to whom I extend my sympathies. As is now customary, Judge Cancado Trinidade appended a jolly 88-page dissent, almost twice as long as the Court’s judgment (for what it’s worth, my sympathies equally extend to his clerks). Several other judges appended declarations or separate opinions, but less than could perhaps have been expected – again, the Court was fairly unified.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

 

Iran and the Strait of Hormuz: some initial thoughts

Published on February 2, 2012        Author: 

Iran has repeatedly threatened to close the Strait of Hormuz in response to any oil embargo or other unilateral sanctions taken against it. The Strait of Hormuz, depending on the reports you read, is at its narrowest somewhere between 17 and 30 nautical miles wide. The bordering States Oman and Iran both assert 12 nautical mile territorial seas. However, the deep water channels that are safe for tankers, used under an International Maritime Organization traffic separation scheme, are only two miles wide each. The outbound lane from the Persian Gulf passes through waters off Oman, the inbound lane through Iranian territorial waters. (Please correct me if I have any of this factual material wrong.)

What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

  • be targeted only against the responsible State;
  • be preceded by an offer to negotiate;
  • consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
  • be proportionate and readily reversible; and
  • not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

 

Frankfurt Investment Law Workshop 2012

Published on February 1, 2012        Author: 

Christian Tams sends along the following announcement.

Frankfurt Investment Law Workshop 2012 – Preferential Trade and Investment Agreements: A New Ordering Paradigm for International Investment Relations? (16-17 March 2012)

For a couple of years, the Frankfurt Investment Law Workshop has been a forum to discuss conceptual issues of international investment law. Following previous events assessing the relationship between Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (see here) and International Investment Law and Its Others (forthcoming 2012), this year’s workshop will explore the growing network of preferential trade and investment agreements (PTIAs) and assess their impact on ordering international investment relations. It will be held in Frankfurt/Main on 16-17 March 2012, immediately following the Frankfurt Investment Arbitration Moot.

The workshop will open with a keynote speech by Professor Raúl Emilio Vinuesa. This is to be followed by panels addressing the interaction between PTIAs and traditional BITs; the impact of PTIAs on the Trade/Investment divide; and the role of regionalism and multilateralism in international investment law.

The event is designed to be a forum for discussion and much room is allocated to debate. Anyone interested in participating should contact Mrs. Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany (S.Schimpf {at} jur.uni-frankfurt(.)de) by 28 February 2012.

Filed under: Conference, EJIL Reports
 
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