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Prlić et al.: The Destruction of the Old Bridge of Mostar and Proportionality

Published on July 31, 2013        Author: 

Picture RogierRogier Bartels is a legal officer in Chambers at the International Criminal Court. The views expressed in this post (and in the article referred to, which was written before he joined the Court) are his own and do not necessarily represent the views of the ICC. He blogs at the Armed Groups and International Law Blog.

 

These last months, most of the blog posts on the ICTY have focused on debatable Appeals Chamber judgements and the associated letter by Judge Harhoff. A significant Trial Judgement (in French) that would normally perhaps have received attention was therefore largely ignored – although the international courts and tribunals’ judgements and decisions in French are often overlooked. The recent judgement in the multi-accused trial Prlić et al. is significant not just because of its length (six volumes totaling almost 2600 pages, including a 576 page dissent) and the time it took to draft (it was rendered more than three years after the end of the Defence case, and well over two years after the closing arguments were held). Most striking perhaps is the Trial Chamber’s determination that the Croatian leadership, including president Tudjman, formed part of a joint criminal enterprise that pursued the establishment of a Croat-only part of Bosnia-Herzegovina (for it to be joined with Croatia); this is especially interesting after the Appeals Chamber’s ruling that the Gotovina Trial Chamber was wrong in its finding in this regard. However, when listening to the delivery of the Prlić Judgement, what really caught my ear was the following “finding” on the destruction of the Old Bridge of Mostar:

On 8 November 1993, as part of the offensive, an HVO tank fired throughout the day at the Old Bridge until it was unusable and on the verge of collapse. The Bridge then collapsed on the morning of 9 November 1993. The Chamber finds, by a majority, with the Presiding Judge dissenting, that although the Bridge was used by the ABiH and thus constituted a legitimate military target for the HVO, its destruction caused disproportionate damage to the Muslim civilian population of Mostar (Judgement Summary, p. 3).

I have recently published an article in the Israel Law Review (open access until half August) on the use of the principle of proportionality in international criminal law, which discusses extensively the ICTY practice with respect to the principle. When listening to (the English translation of) Judge Antonetti reading out the summary of the judgement, I feared that my article was outdated already, as it appeared that theDestruction Mostar Bridge - BBC Majority had applied the proportionality principle in coming to this finding. And not just any finding: one that appeared to include a dual use object and a novel determination on the weighing of the long-term expected incidental damage. I say “appeared” twice because, as will be explained below, the summary was actually quite deceiving in this respect and no such finding was in fact made. (Old Mostar Bridge pictured right, credit)

In the article referred to above, I show that the Tribunal’s practice can be divided into three categories of cases where the different chambers: i) state and clarify the principle, but do not apply it to the facts of the case; ii) make findings on disproportionate or excessive use of force that cannot actually have resulted from an application of the principle; iii) the Gotovina case, in which the Trial Chamber did apply the principle to the evidence, but was then quashed by the Appeals Chamber. In this post, I will briefly discuss the ways in which the principle has been addressed in the ICTY’s case law in order to see where the Prlić case fits in. Read the rest of this entry…

 

Mr. Kadi and Article 103 (A Poem)

Published on July 29, 2013        Author: 

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

 

Event and Announcements: Conferences in Mumbai and Warsaw and Calls for Papers

Published on July 27, 2013        Author: 

1. Students for the Promotion of International Law (SPIL) Mumbai will organize its annual event, the 5th Government Law College International Law Summit, from 31st January – 2nd February, 2014. Law schools from around the world are invited to participate. The Summit will include lectures, panel discussion, and two competitions: the Judgment Deliberation Competition and the Treaty Appreciation Competition. In addition, SPIL Mumbai calls for papers from students, professors, practitioners, and scholars, on the theme of this year’s Summit, international investment law.

2. SPIL Mumbai also calls for original academic work on contemporary developments in Public International Law for its yearly publication, the International Law Annual, which comprises literature on all aspects of international law. Possible forms include short articles, analytic works on landmark cases, interviews with legal luminaries on contemporary issues, discussions and analysis on international legislation, and book reviews.

Details on the Summit and the call for papers here.

3. The Institute of Law Studies of the Polish Academy of Sciences and the COST Action IS1003 announce the conference Constitutionalisation and Fragmentation of International Law Revisited, to take place in Warsaw 18-19 November 2013. The conference organizers also announce a call for papers. Details here.

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The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Jodie KirshnerJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

 

Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

Published on July 19, 2013        Author: 

I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). Read the rest of this entry…

 

Who Owns Sunken WWII German Military Aircraft? Uncertainties in the Law of Underwater Cultural Heritage

Published on July 16, 2013        Author: 

Oliver Daum is a Ph.D. candidate and research associate at the Chair of Public International Law at the University of Trier, Germany.

DornierOn 11 June this year a consortium of mostly British partners and stakeholders successfully lifted a seventy year old German military aircraft – a ‘Dornier Do 17’  (photo left, credit)– from the bottom of the English Channel. It is estimated that about two thousand military aircrafts of the type Do 17 were employed by the Luftwaffe during World War II. According to the Royal Air Force (RAF) museum, the recovered aircraft is supposedly the ‘world’s last surviving Dornier Do 17’ and will be exhibited after conservation at the museum in Cosford, England.

Neither media reports covering the salvage operation of the Do 17, nor the RAF museum have provided any details concerning ownership of the ‘Flying Pencil’ (which is how the Do 17 was called due to its slim silhouette). As Anastasia Strati stated in her 1999 commentary to the Draft Convention on the Protection of Underwater Cultural Heritage, the issue of the legal status of shot and sunken military aircrafts and sunken warships is ‘subject to great uncertainty’.

This comment aims to briefly summarize the major legal issues concerning ownership, State immunity and the appropriate international jurisdictional basis for salvage of the Do 17. I conclude that the Do 17, after the deliberate and successful salvage, is still and was at all times subject to German State ownership. The United Kingdom may not provide a jurisdictional basis to refuse delivery of the Do 17, should it be claimed by the German authorities. However, as the Flying Pencil’s discovery first took place back in 2008, it appears that German governmental authorities, due to the time and possibilities elapsed ever since, were and are not willing to interfere.

Read the rest of this entry…

Filed under: EJIL Analysis
 

Announcement: Workshop at Michigan

Published on July 13, 2013        Author: 

On November 14–15, 2013, the University of Michigan Law School will host the Second Annual ASIL–ESIL–Rechtskulturen Workshop on International Legal Theory. It is a collaboration between Michigan Law School, the Interest Groups on International Legal Theory of the American and European Societies of International Law, and the Rechtskulturen Program, an initiative of the Wissenschaftskolleg zu Berlin at Humboldt University Law School. The principal aim of this collaboration is to facilitate frank discussion among legal scholars from diverse backgrounds and perspectives on the fundamental theoretical questions that confront the discipline today. Details here.

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Announcement: Call for Papers

Published on July 13, 2013        Author: 

The Netherlands Yearbook of International Law announces a call for papers for its 2014 volume, Between Pragmatism and Predictability: Temporariness in International Law. Details here.

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ICTY Appeals Chamber Reinstates Genocide Charges in the Karadzic Case

Published on July 11, 2013        Author: 

Just a couple of minutes ago the ICTY Appeals Chamber sitting in the Karadzic case reversed the Rule 98 bis judgment of acquittal rendered by the Trial Chamber last year (see my post on that decision for more background; the Appeals Chamber’s decision is not yet available at the time of writing, but a summary can be found here). The Trial Chamber had earlier decided that on the evidence presented by the prosecution, taken at its highest, no reasonable trier of fact could have found Karadzic guilty beyond a reasonable doubt of genocide committed by Bosnian Serb forces against Bosnian Muslims and/or Croats in a number of Bosnian municipalities in 1992, the bloodiest year of the war. In essence, the Trial Chamber had decided that ‘only’ the 1995 Srebrenica massacre could be legally qualified as genocide, and Karadzic’s trial proceeded on that basis.

The Appeals Chamber now ruled that the Trial Chamber erred in fact when it made its findings with regard to the actus reus and mens rea of genocide in the municipalities other than Srebrenica. In particular, the Trial Chamber failed to take at its highest the evidence presented by the prosecution with regard to the existence of genocide intent, which it had to do when deciding on a Rule 98 bis, ‘no case to answer’ motion for acquittal. Accordingly, the Appeals Chamber reinstated the genocide charge for the municipalities and remanded further proceedings to the Trial Chamber, which will now have to try Karadzic for genocide beyond Srebrenica. (Appropriately enough, the judgment was rendered on the 18th anniversary of the start of the Srebrenica genocide; for the avoidance of doubt, I myself see no moral distinction between genocide and ‘mere’ crimes against humanity, and Karadzic would have been no less the villain even if his acquittal was affirmed, but of course politically the G-word is a whole different story.)

The Appeals Chamber’s decision has a number of implications. First, most obviously, there will now need to be some reconfiguring of the Karadzic trial proceedings. Second, one can now foreshadow the fate of a possible Rule 98 bis motion in the ongoing Mladic case, which contains similar charges. Third, more importantly, it remains very unlikely, in my view, that in its final judgment the Trial Chamber will actually convict Karadzic for genocide in the municipalities – the standard for conviction is of course much higher than for rejecting a Rule 98 bis motion, the prosecution’s evidence need not be taken at its highest, and the same trial judges who previously said that no reasonable trier of fact could convict Karadzic are now hardly going to say that he is guilty beyond a reasonable doubt.

Fourth, consequently, despite today’s ruling it is also unlikely that an eventual acquittal will be reversed on the facts by the Appeals Chamber, because of the deference that the Trial Chamber will be due on its own findings of fact. Fifth, today’s judgment will receive a lot of political play in the region, especially in Bosnia. Finally, the whole thing may have repercussions on a possible Bosnian request for revision of the ICJ’s 2007 Bosnian Genocide judgment, which found genocide ‘only’ in Srebrenica. As explained in my previous post, I don’t think such a request would either be wise or likely to succeed, but today’s judgment leaves the doors open, at least for the time being.

 

 
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The Possible Unintended Consequences of United States v. Ali

Published on July 10, 2013        Author: 

Jean_Lafitte,_early_19th_century,_Rosenberg_Library,_Galveston,_TexasAs Professor Guilfoyle notes in his latest post, the D.C. Circuit Court of Appeals, in the case of United States v. Ali, reached the same conclusion that he did on the question of whether territorial facilitation of piracy is subject to universal jurisdiction.  I have a post over a Communis Hostis Omnium summarizing the court’s analysis as it relates to international law, but here I want to focus on two of the potential unintended consequences of that analysis. (photo: anonymous portrait of famous Louisiana pirate Jean Lafitte, credit)

Both of these unintended consequences flow from the court’s interpretation of UNCLOS article 101. The court found that the presence of the phrase, “on the high seas” in article 101(a)(i) and its absence in article 101(c) showed that there was no high seas requirement for facilitators. The court based its interpretation on the general proposition that variations in statutory language should be read as intentional. After a two sentence analysis simply noting the discrepancy between (a) and (c), the court abruptly concluded, “[s]o far, so good; Charming Betsy poses no problems.” However, this same analysis, if applied to article 101 as a whole, produces two interesting results: it suggests that there is no high seas requirement in article 101(b), and that there is no private ends requirement in article 101(c). For some, these unintended consequences may be perceived as “problems” indeed.

First, for the same reason that the court explicitly negates the high seas requirement as it relates to article 101(c), it implicitly negates that same requirement in article 101(b). This latter provision, like article 101(c), lacks the phrase, “on the high seas.” Thus anyone operating a ship anywhere with knowledge that it has been used for piracy is open to a universal jurisdiction prosecution in the United States. The only treatment that article 101(b) received was in a footnote stating, “[a]s neither party draws support for its position from article 101(b), we need not opine on its meaning here.” This suggests that the court may not have fully considered the consequences of its analysis. From a policy perspective, this is not the gravest of results, as most will not have much sympathy for mechanics and repairmen that knowingly work for pirates. Nevertheless, it raises some sovereignty concerns for those states from which these territorial pirates would be taken for prosecution in the U.S.

Second, and more troubling, it seems clear from the court’s analysis that the mens rea for piratical facilitation is decidedly not the desire to achieve private ends. This is because, like the phrase “on the high seas,” “private ends” appears in article 101(a), but not 101(c). Which mental state should take its place? It is widely accepted that “facilitation” corresponds most closely to aiding and abetting liability. In the United States, aiding and abetting requires only that the defendant purposefully “aids, abets, counsels, commands, induces or procures” the commission of a crime. In the absence of direct evidence of specific intent, some federal appeals courts require a “purposive attitude towards” the commission of the crime, while others have held that mere knowledge is enough to sustain an aiding and abetting conviction.  At the ICTY, aiding and abetting requires something quite similar: a general intent to assist and the knowledge that the assistance will aid in the commission of a crime. Even the ICC, which has a relatively stringent mens rea requirement for aiding and abetting, only requires that the aider and abettor assist “for the purpose of facilitating the commission of [] a crime” (i.e. making the crime easier to commit). None of these standards requires the aider and abettor to share the direct perpetrator’s underlying intent. Without the private ends requirement, individuals such as the ship owner’s ransom negotiator, the pilot who airdrops the ransom, or even an American official issuing a letter of marque (a right the U.S. has maintained) may have opened themselves to a universal jurisdiction prosecution for piracy, with a mandatory life sentence.

In sum, the court’s opinion – either intentionally or unintentionally – gives the United States extremely broad latitude to prosecute acts of piracy that do not take place on the high seas. One no longer has to “renounce[] all benefits of society and government” to be subject to the common jurisdiction. All that is required is that the person helps – or operates a ship with – someone who has.