On Tuesday, President Obama suggested that the United States might consider prosecution of some of the individuals who are connected with the harsh interrogations techniques used by the CIA on Al Qaeda detainees (see here). Earlier, the US President had made it clear previously that those CIA personnel who had relied in good faith on the legal memos written by the Office of Legal Counsel in the US Dept of Justice would not be prosecuted. On Tuesday, he reiterated that stance though using slightly different language. He stated it would not be appropriate to prosecute those ”who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House” (see the White House transcript here). This statement and what appeared to me to be an emphasis on those who acted strictly within the confines of the opinion (Obama even used his hands to draw a rectangular box as he said the words “four corners” of the opinion) suggests that Obama is open to the prosecution of some of the CIA interogators. It also also highlights the significance of the revelation that some of the interrogations went beyond the limits set out the memos (see the story in the New York times and the discussion by Kevin Jon Heller at Opinio Juris). In an earlier post on this blog, I stated that there are reasonable (though not undisputable) grounds for arguing that under international criminal law, CIA officials who conducted the interrogations in reliance on the advice of US government lawyers might be able to rely on the mistake of law/superior orders defence codified in Art. 33 of the ICC Statute.

Even more significant is Obama’s refusal to rule out prosecution of those lawyers who authored the opinions that justified the interrogation techniques. Obama stated the US Attorney General will make a decision on the investigation or prosecution of those who formulated the legal opinions. One question that arises here is: why focus on the lawyers? Much of the discussion has centered on their role. Obama’s response was to a question asking for clarification on the position of those who devised the policy on enhanced interrogation techiques. However, his answer which did not rule out prosecutions only referred to “to those who formulated those legal decisions.” But what about the others? The people who actually suggested the techniques and pushed for their use. Are they subject to investigation too? No doubt, answering that question is politically difficult given that questions will be raised as to how high up the chain one goes. And we know from recent reports that the approval of those policies was at the very highest levels of government. However, if the administration is to consider prosecutions at all, there seems to be little reason to stop with the lawyers. Indeed the Torture Convention, to which the US is party imposes an obligation on US to submit cases of torture to its prosecuting authorities.

Perhaps the reason that the focus is just on lawyers is because US criminal law recognises a mistake of law defence in circumstances where international criminal law does not.  (more…)

A prize has been established by the Society of International Economic Law and Cambridge University Press for the best essay submitted on any topic in any field of international economic law.

The latest issue of the European Journal of International Law has recently been published. This is Volume 20, No. 1. In his editorial, Professor Joseph Weiler (Editor in Chief) reflects on the founding of the Journal 20 years ago and on developments over the first 2o years of EJIL. He also points out that the current Volume of EJIL will be an anniversary volume with anniversary symposia on carefully selected topics in each issue of this volume. The table of contents of the current issue is as follows:

Special Anniversary Article
Martti Koskenniemi, “The Politics of International Law – 20 Years Later

Changing Paradigms in International Law: A Symposium
Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”
Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law”
Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”
Martin A. Schain, “The State Strikes Back: Immigration Policy in the European Union”

Article
Marc Weller, “Settling Self-determination Conflicts: Recent Developments”

EJIL: Debate!
Mónica García-Salmones, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply to Rosie Cooney and Andrew Lang”
Andrew Lang & Rosie Cooney, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Rejoinder to Monica Garcia-Salmones”

Critical Review of Jurisprudence: An Occasional Series
Pasquale De Sena & Maria Chiara Vitucci, “The European Courts and the Security Council: Between Dedoublement Fonctionnel and Balancing of Values”

Abstracts of all of these articles and full texts of some are available, free of charge, on the website of the journal.

One of the purposes of this blog is provide a forum for the discussion of scholarship published in EJIL. To that end we will, in the coming days and weeks, be hosting online symposia on the articles published in this issue. The purpose of these online symposia is to facilitate engagement with and conversations about the work published in the journal. We will invite particular scholars to comment on the articles published in the journal. However, we very much encourage readers to take part in this conversation by providing comments on work published in the journal or on the comments made on those articles.

This week, we will host the EJIL: Debate! between Mónica García-Salmones on the one hand and Rosie Cooney  and Andrew Lang  on the other hand on the topic of “Taking Uncertainty Seriously: Adaptive Governance and International Trade”.

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. (more…)

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. (more…)

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. (more…)

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. (more…)

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?

(more…)

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. (more…)

Belgium has filed a case in the ICJ against Senegal (see press release) with regard to Senegal’s failure to prosecute former Chadian Head of State, Hissene Habre. This is the latest episode in the long running saga regarding the possible prosecution of Habre. Habre is accused of torture and crimes against humanity committed in the 1980s against dissidents and political opponents during his period in office in Chad. Habre has been resident in Senegal since he was overthrown in 1990. Following the Pinochet precedent, attempts were first made in 2000 to institute criminal proceedings in Senegal against Habre. These attempts failed when the Senegalese courts held that Senegal lacked extraterritorial jurisdiction over the crimes because it had not passed the necessary legislation. Thereafter, proceedings against Habre were commenced in Belgium and, in 2005, a Beglian magistrate issued an international arrest warrant for Habre. After the African Union recommended prosecution in Senegal, that country amended its domestic law in order to provide jurisdiction for crimes against humanity, war crimes and genocide. However, no proceedings against Habre have been commenced in Senegal though he is said to be under house arrest.

 In its Application to the ICJ Belgium, requests the Court to adjudge and declare that:

” –  the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;
- failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.

Belgium has also requested provisional measures as the Senegalese President has suggested that Habre may be released from house arrest. (more…)