It would be remiss of us not to note the birth of South Sudan as the world’s newest State. South Sudan gained independence from the Republic of Sudan last Saturday (9 July) and was admitted to the United Nations yesterday as the 193rd member of the UN. Independence was the result of a referendum held earlier this year in which 99% of the South Sudanese population voted for independence. South Sudan is the second African State (after Eritrea) to split from its parent state after such a referendum (which in both cases have followed a lenghty conflict).  Back in 1964, the Organization of African Unity adopted its famous resolution (see p. 17) in which it:

SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.

That resolution was often interpreted as prioritising the principle of stability of boundaries and of territorial integrity over the right of self determination. Indeed, it has often been used as an argument in favour of the view that the right of external self-determination (i.e a right to secession) does not exist for minority groups or outside the colonial context. On its face though that resolutions does not speak to relationship between the State and its constituent entities but rather to the relationship between States. Nothing in the resolution itself precludes the possibility of changes in those colonial boundaries (either through inter-State adjustments or through the granting of independence by States to particular parts of the State). Having said this, it is nonetheless clear, that the mood – in Africa and elsewhere – was largely to confine the principle of self determination – at least in so far as might confer a right or entitlement to secession – to the colonial or quasi colonial situations (i.e contexts of racist or alien domination). But Sudan (and indeed Eritrea before it) suggest that there might be cases where African states are willing to consider secession (though only when tired out by lenghty wars!). The question then is whether we should rethink the principle of external self determination to allow not just for the possibility of secession but a right  of secession. I would like to draw readers attention to two posts of earlier this year in which the authors do call for this. (more…)

According to the BBC:

Former Chadian President Hissene Habre is to be sent home from Senegal to face accusations that he committed atrocities during his eight-year rule.

Senegal said Mr Habre would be flown to Chad on 11 July.

Mr Habre is blamed for killing and torturing tens of thousands of opponents between 1982 and 1990, charges he denies.

Mr Habre – sometimes dubbed “Africa’s Pinochet” – has been living in Dakar since he was ousted.

In a statement, the Chadian government said President Idriss Deby was informed about the decision to return Mr Habre by Senegalese President Abdoulaye Wade.

Dakar separately confirmed this, without providing a reason for its move.

In 2008, Mr Habre was sentenced to death by a court in Chad for planning to overthrow the government.

He was sentenced in absentia along with several rebel leaders, who launched an assault on the Chadian capital, N’Djamena, earlier that year.

This is the latest in the long running saga regarding attempts to prosecute Habre for alleged torture and crimes against humanity committed by him while in power in Chad. After failed initial attempts to prosecute him in Senegal and a request for his extradition to Belgium, the African Union got involved in the matter and requested that Senegal prosecute Habre ”on behalf of Africa”. Senegal has since amended its law to allow for this but insisted that the funding for the prosecution come from the international community with the Senegalese President expressing his frustration that the money wasn’t forthcoming. In the meantime, Belgium initiated proceedings before the ICJ arguing that Senegal had failed to comply with its obligations under the Convention Against Torture to prosecute Habre or to extradite him. Belgium also requested provisional measures ordering  Senegal not to permit Habre to depart from that country. However, a further complication was added when the ECOWAS Court of Justice, in a rather strange decision, held, late last year, that Senegal could only try Habre in an ad hoc special tribunal of an inernational character. For more on the background  on the case, see this ASIL Insight and for commentary on the ICJ proceedings, see previous EJIL:Talk! posts here, here and here.  For a comment on the ECOWAS Court judgment,see the ASIL Insight and this post by Prof. Bill Schabas on his blog.

Perhaps Senegal is just frustrated by the whole process, including the involvement of international organizations and international courts, and just wishes to rid itself of the problem. Given the effort of Senegal to amend its law and the saga over funding, one can’t blame Senegal for being frustrated by the decision of the ECOWAS court (which suggests having to start over again). This is a case where an international court has not helped the process. But despite Senegal’s frustration, it will be acting in breach of a solemn commitment it gave to the ICJ during the provisional measures hearing. The main reason why the ICJ declined to indicate provisional measures was because of the assurance that Senegal had given that it would not permit Habre to leave before the Court had given its final decision. In the provisional measures decision, the Court said:

 71. Whereas the Court further notes that Senegal, both proprio motu and in response to a question put by a Member of the Court, gave a formal assurance on several occasions during the hearings that it will not allow Mr. Habré to leave its territory before the Court has given its final decision;

 72. Whereas, as the Court has recalled above, the indication of provisional measures is only justified if there is urgency; whereas the Court, taking note of the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium is not apparent on the date of this Order;

73. Whereas the Court concludes from the foregoing that there does not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court;

Provisional measures ordered by the Court are binding but here the Court did not order any provisional measures on account of the assurance. So Senegal will not actually be in breach of an ICJ order. But it is bad form for a State to make such a formal assurance, which induces the Court not to make a formal order, and then for the State to breach its assurance. I’m not sure if there is a breach of a particular principle of international law here but it could be argued that Senegal would not be acting in good faith where it to return Habre to Chad. In any event, Belgium could return to the Court to ask for provisional measures before the transfer takes place. In fact the Court explicitly contemplated this  in para. 75 of the decision:

Whereas the present decision also leaves unaffected Belgium’s right to submit in future a fresh request for the indication of provisional measures, under Article 75, paragraph 3, of the Rules of Court, based on new facts;

The United Kingdom’s Equality and Human Rights Commission (EHRC) has initiated judicial review proceedings in the High Court in London questioning the legality of instructions issued to the UK’s intelligence agencies on participation in interviews with detainees held abroad by countries with poor human rights record (see Guardian article of 28 June and the Guardian article of 29 June).The case is one of a number of proceedings in the UK in which actions of UK intelligences with respect to persons detained abroad have been called into question. The fact pattern alleged is now familiar, one intelligence agency takes part in questioning of a person detained by a foreign agency that is alleged to have tortured the detainee. Or the first agency actually requests the detention or perhaps supplies questions or other information to the foreign detaining agency. As discussed in previous EJIL:Talk! posts by Ben Batros and Philippa Web, as well as by Nehal Bhuta (see here and here), similar allegations made against Australian and Canadian agents have led to the Habib case (in Australia) and the Khadr case (in Canada). The allegations of complicity by UK agents in torture committed by foreign States led the government to establish an inquiry to look into the matter (see here).

Unlike other cases, the present case – Equality and Human Rights Commission v. Prime Minister – is not brought by a victim seeking compensation or some other form of redress or disclosure. These are proceedings which are forward looking and seeking to force the UK to change its policy as represented in instructions to its agencies. The instructions have been in existence since 2002 but they were redrafted and made public in 2010. However, the case reveals questions as to the right standard to employ when considering whether one State or its agents are in breach of international law when it participates in human rights violations by another State. A particular issue raised in these proceedings is whether participation in questioning by a foreign agency is prohibited under international law when the UK agent “knows or believes” that torture will occur or rather occurs when “there is a risk” that torture will occur? If the latter standard (which is lower) is to be adopted what type of risk will suffice so as to preclude participation in activity that creates a risk of torture or cruel or inhumane treatment? Should the standard be the “real risk” adopted in non-refoulement case or should it be a “serious risk” standard –which, arguably, is higher?                                                   (more…)

France has admitted supplying weapons to rebels in Libya fighting against Colonel’s Gaddafi’s forces. According to Channel 4 News in the UK:

A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”

“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.

“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)

It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that

“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”

The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas.  This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here). (more…)

On Monday, the International Criminal Court’s Pre-Trial Chamber I issued a decision acceding to the ICC Prosecutor’s request for an arrest warrant for Libyan leader Muammur Gaddafi, his son Saif Al Islam Gaddafi and head of the Libyan military intelligence Abdullah Al Sanusi (see previous post on the request). The situation in Libya was referred to the ICC by the UN Security Council under Security Council resolution 1970. The three persons who were the  subject of this request were alleged by the Prosecutor to be responsible for crimes against humanity within the jurisdiction of the ICC Statute. As was widely expected, the Pre-Trial Chamber has issued warrants of arrest for all 3 accused persons. In its decision, which was based on Article 58 of the ICC Statute, the Chamber found that there are “reasonable grounds to believe” that all three are responsible for murder and persecution as crimes against humanity under Articles 7(1)(a) & 7(1)(h) of the Statute. Contrary to the request of the Prosecutor that the request for surrender should be directed solely to Libya, the Chamber decided that the request for surrender should be addressed to

“to the competent Libyan authorities in accordance with rule 176(2) of the Rules and to (i) all States Parties to the Statute; (ii) all of Libya’s neighboring States; and to (iii) the United Nations Security Council members that are not States Parties to the Statute;”

One pleasing point to note is that the Pre-Trial Chamber has dealt with this request pretty quickly. The Prosecutor’s request was made on May 16 (see previous post) and a decision has been made within 6 weeks. This contrasts very favourably with the 8 months that it took for the ICC to make an initial decision on the arrest warrant for Sudanese President Omar Al Bashir. Given that these proceedings are ex parte (i.e without defence representation) and the Chamber appears to rely almost exclusively on material submitted by the Prosecution there is no reason for a delay in the decision.

(more…)

Tunisia has become the 116th State to become a party to the Rome Statute of the International Criminal Court. It also acceded to the Agreement on Privileges and Immunities of the ICC. The new government of Tunisia (post the Arab Spring) submitted its instrument of accessions on Friday and the Statute will come into force for Tunisia on 1 September 2011. Tunisia’s accession is a direct result of the Arab Spring and the change of government in that country. Tunisia becomes the second Arab State (after Jordan) to become a party to the ICC Statute. It remains to be seen whether other countries in the region will follow suit. In April, it was reported that the Egyptian Foreign Minister Nabil El-Araby (on which see post below) had stated that  “Egypt is currently taking the required steps to join all United Nations agreements on human rights and to join the International Criminal Court.” No instrument of accession has been submitted yet.

Later this week, Dr Nabil El-Araby, the current Foreign Minister of Egypt will take up the position of Secretary General of the Arab League. Dr El-Araby was appointed Foreign Minister in the interim government of Egypt after the fall of the Hosni Mubarak and he was elected to be head of the Arab League in May (see here). Dr El-Araby was a Judge at the International Court of Justice  from 2001 to 2006 where he completed the term of Algerian Judge (and  former ICJ President) Mohammed Bedjaoui. As far as I know Dr El-Araby will be the first ICJ judge to go on to be head of an international organization. Many ICJ judges (Judge El-Araby included) have distinguished careers in government before being elected to the Court, however, I think it is rare for ICJ judges to go back into national governments and I  am not aware of any going on head an international organization. Apparently, the reverse situation, i.e going from head of an international organization to ICJ Judge nearly happened in the mid 1990s. Madeleine Albright, former US Secretary of State and former US permanent representative to the UN, recounts in her memoirs how the United States opposed the reelection of Boutros Boutros Ghali as Secretary General of the United Nations but told him that they would support him for the ICJ.

Incidentally, Dr El-Araby is one of a number of high profile Egyptian international lawyers/diplomats/international civil servants. Boutros Boutros Ghali is another one, as is Dr Mohammed El Baradei, former Director General of the International Atomic Energy Agency (and potential candidate for the Egyptian presidency in the forthcoming elections). All three have doctorates in international law (El-Araby and El Baradei from New York University Law School and Boutros Ghali from Paris) and Boutros Ghali and El Baradei have taught international law. Outgoing Arab League Secretary General Amr Moussa (and another potential candidate for the Egyptian presidency) is another promiment Egyptian diplomat/international civil servant who started out as a lawyer though he is not as prominent an international lawyer as the others.

 In the past couple of days, Germany and Canada have joined the group of countries that have declared that they consider the National Transitional Council (NTC) in to be the “legitimate representative” of the Libyan people. But what exactly does this mean? According to the BBC, the group of countries extending this recognition includes France, the UK, Italy, Spain, Germany, the UAE, Qatar, Jordan, Gambia, Senegal and Australia. Russia and the United States have had meetings with the NTC and have also made similar declarations about the illegitimacy of the Gaddafi regime and about the legitimacy of the NTC (see previous post by Stefan Talmon on the US position in March). What are the legal implications, if any, of these statements by different countries? One key question with all of these developments is whether they mean that the countries extending this form of recognition consider the NTC as the government of Libya. Secondly, if they do regard them as the government of Libya what are the international law implications of such recognition?

In a previous post, my colleague Stefan Talmon explained that declarations that the Gaddafi regime is illegitimate does not mean that that regime is not (and is not considered to be) the government of Libya as a matter of international law (and in the domestic law of other countries). What about the reverse? Do declarations about the legitimacy of the NTC mean this entity is (or is considered to be) the government of Libya as a matter of law? I think the answer is that Stefan’s point also works in reverse. Declarations about the legitimacy of the NTC are primarily intended to be political and to have effect at that political level. They are not necessarily intended to be statements with legal effect. But the emphasis here is on necessarily. To the extent that what one is dealing with is the question whether the NTC is recognised as the government of Libya, what we are dealing with here is a question of intention. What do the countries extending this form of recognition intend? Do they intend to recognise the NTC as the government of Libya? In addition to these questions of recognition, there is also the question whether under international law recognition matters. Or to put it differently, is the question of which entity is the government determined or affected by who is recognised by others as the government of Libya?

Has there been a Reversal of the Policy of Not Recognising Governments?

One of interesting things here is that many of the countries declaring the NTC as the legitimate representative of the Libyan people are countries that have a policy of not recognizing governments. (more…)

The ICC Prosecutor has announced that he intends to request permission from a Pre-Trial Chamber to open investigations into the situation in Cote d’Ivoire since 28 Nov. 2010. Assuming permission is granted, this will be second situation (after Kenya) in which the Prosecutor will have begun investigation into a situation in the exercise of his powers to act propio motu. It will also be the 7th situation before the Court. Importantly, it will be the first situation in which the Court seeks to exercise jurisdiction over a non-party who has accepted the Court’s jurisdiction under Article 12(3) of the Court’s Statute. Cote d’Ivoire accepted the jurisdiction of the Court under Art. 12(3) in 2002 and this has been reconfirmed (twice) by the newly elected (and newly seated) president Alassane Outtara.

It is not clear to me why Cote d’Ivoire does not just ratify the Statute rather than use accceptance under Art. 12(3). If anyone knows please do add a comment below.

All seven situation countries in which the ICC is conducting investigations and prosecutions are in Africa. This has given rise to tensions between some African leaders, the African Union and the Court (see here and here). There have been  allegations that the Court is somehow acting unfairly against Africa in its selection of situations. The addition of Cote d’Ivoire will fuel these allegations. However, it ought not to given that the leaders in  Cote d’Ivoire seem to have been rather keen on ICC action. The country is not a party and could have abstained from accepting the Court’s jurisdiction or even revoked that acceptance after having first made it in 2003. Instead the acceptance has been confirmed twice in the last 5 months. It is not quite a self referral (and it is not clear to me if a non-party can refer a situation to the ICC) but it is as close as it gets. This means that four of the seven situations before the ICC have been initiated by the African countries concerned and even the Kenyan situation originated from a Kenyan domestic process.

Last Monday, the ICC Prosecutor requested that an International Criminal Court (ICC) Pre-Trial Chamber issue warrants for the arrest of Libyan leader Muammar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al‐Senussi who is head of military intelligence in Libya (and Gaddafi’ brother in law). All three are accused by the Prosecutor of commiting crimes against humanity in Libya. Libya is not a party to the ICC statute  and the situation in Libya was referred to the ICC by the United Nations Security Council in Resolution 1970 .

There are a few interesting thing to note about the request. First of all, there are, of course, similarities with the Bashir arrest warrant. But there are also differences. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. As we have noted on this blog in many previous posts (search for ‘Bashir’ on the right), the fact that a head of State is indicted raises issues of the immunity. The issue is not straight forward but I have argued that the effect of the Security Council referral is that Sudan (now read Libya) is to be treated as bound by the Rome Statute with the effect that Article 27 which removes international law immunities for parties has the same effect for that State. However, I have also criticised the Judges of the ICC for not addressing the immunity question. In the Gaddafi case, at least at this stage, the international law immunity issue does not yet arise, or at least does not arise in the same way. (more…)