I intended to write a post explaining why International Monetary Fund (IMF) Managing Director, Dominique Strauss-Kahn (DSK), does not have immunity under the applicable treaties dealing with the immunity of the IMF and its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although Article VI, Section 22 of the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies provides that “the executive head of each specialized agency . . . the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”, and even though diplomatic envoys have absolute immunity from criminal jurisdiction of foreign States, the United States is not a party to that treaty. This means that the only relevant treaty is the IMF Articles of Agreement which provides in Article IX, Section 8(i) that IMF Staff, “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” Thus, as Chimene puts, DSK does not have status immunity (or diplomatic immunity) but only official act (or functional) immunity. The latter immunity only covers acts carried out in official capacity and it is difficult to see how the alleged acts could have been carried out in an official capacity. So, the matter as regards the relevant treaties (and the relevant US federal statute -  The International Organization Immunities Act, 1945 22 USC § 288d(b)) appears to be quite straight forward. However, I wonder if that is the end of the matter. Could it be claimed that DSK has diplomatic immunity under customary international law which the US is bound to respect? If he were the head of a foreign State then customary international law would obviously be relevant. But do international organizations and their employees have immunity under customary international law? Are US courts bound to respect such immunity? There is actually a plausible case that the broader immunities in the Convention on Specialised Agencies represent customary international law but I don’t think this is at all certain and suspect that the courts will not accept that view. Nonetheless, I set out the argument below. (more…)

In his post of yesterday, Marko notes the debate surrounding whether the Coalition now taking military action in Libya can arm the rebels fighting in that country. This question is perhaps part of a broader question of whether the coalition can provide other military aid to the rebels, for example, by providing close air support for rebel advances into towns under the control of Col Gaddafi’s forces. As Marko notes, while the US and UK  have both denied that they have made a decision to provide arms to the rebels (see here and here), they have both argued that providing arms to the rebels would not be a breach of the arms embargo imposed by Security Council Resolution 1970. In fact media reports today indicate that President Obama has authorised covert aid to the rebels. Likewise, though there have been denials of direct support from the air for rebel operations on the ground, the media reported that rebel advances on towns like Ajdabiya (and others) was only made possible because of coalition attacks against Libya military forces defending those towns. So, is this direct support for the rebels lawful? When I was asked about the legality of providing arms to the rebels at the start of this week I was of the view that this would be contrary to the arms embargo. Having thought about it a bit more, I have changed my mind about the legality question. Politically, I don’t think it ought to be done unless we know who these people are and what their aims are. The approach that my enemy’s enemy is my friend doesn’t always turn out for the best. We need only think of the experience of arming the Afghan mujahadeen in the 1980s to know that caution is required. But others know far more than I do about whether it is a wise thing to do politically and militarily. As far as law is concerned, such assistance is not, in my view, excluded by the relevant Security Council resolutions. However, the assistance that can be given is also limited by the mandate that Security Council Resolution 1973 confers. The assistance must be directed, solely, at protection of civilians and civilian populated areas.

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The International Tribunal for the Law of the Sea (ITLOS) has announced (see press release here)  that its President has appointed three arbitrators to serve as members of the arbitral tribunal which will hear the dispute between Mauritius and the United Kingdom concerning the ‘Marine Protected Area’ around the Chagos Islands. The dispute concerns the creation by the UK of a Maritime Protected Area (MPA) in the Exclusive Economic Zone (EEZ)  around the Chagos Islands Archipelogo. Mauritius, which claims sovereignty over the Chagos Islands,  submitted the dispute to an Annex VII arbitral Tribunal under the UN Convention on the Law of the Sea. It claims that the UK is not competent to create the MPA and that only Mauritius is entitled to create an EEZ around the Chagos Islands. Readers can find analysis of the case in a piece written on this blog  last month by my colleague Irini Papanicolopulu. According to the ITLOS Press Release:

The arbitrators are Ivan Shearer (Australia), James Kateka (Tanzania), and Albert Hoffmann (South Africa). The President appointed Ivan Shearer as the president of the arbitral tribunal. These appointments were made in consultation with the two parties to the dispute.

James Kateka and Albert Hoffan are both judges of ITLOS and Ivan Shearer, who is Emeritus Professor of Law at the University of Sydney has been ad hoc judge at ITLOS in two cases.  (more…)

I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya.  How far does the resolution permit the coalition now acting in Libya to go? What are the objectives of the coalition military action? Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest. This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design). What sort of peace though? (more…)

The Harvard International Law Journal’s website has initiated a fascinating series of interviews with leading international lawyers (see here). Thus far, the focus has been on practising international lawyers with experience in government and international organizations. There are  recent interviews with John Bellinger III, Legal Adviser at the US State Department from 2005-2009, Larry Johnson, former UN Assistant Secretary General for Legal Affairs and most recently with Jean-Claude Piris formerly Director General of the Legal Service of the Council of the European Union. The interviewers explore how these individuals got into the practice of international law and interviewees reflect on their experiences at the highest levels of government and international organizations. For example Larry Johnson speaks of his experience in crafting the Statutes of the International Criminal Tribunals for the Former Yugoslavia and the Special Tribunal for Lebanon. Apparently, Security Council members were opposed to including international crimes into the Statute of the latter. In his interview, John Bellinger not only reflects on his own experiences as Legal Adviser in George Bush’s State Department but also comments on the failure of the Obama Administration’s to achieve progress in certain areas of international law.

There is another very interesting set of interviews of international law scholars and practitioners on the website of the University of Cambridge’s Squire Law Library. The Eminent Scholar’s archive includes interviews with distinguished international lawyers such as Prof. Sir Eli Lauterpacht, Prof. Sir Derek Bowett, Judge Stephen Schwebel and Prof. Martti Koskenniemi all of whom have a Cambridge connection, have had distinguished academic careers as well as very significant practical experience of international law. The Cambridge interviews are longer than the Harvard ones but no less interesting. Apart from the interview of Martti Koskenniemi (which I particularly recommend), the Cambridge interviews are largely autobiographical and provide very interesting recollections of the careers of these individuals. They not only include transcripts but also audio files.

The media are reporting that former US President George W Bush has cancelled a planned visit to Geneva (see also comments by Jonas to previous post). There is some dispute about the reasons for the cancellation and the organizers of the event Bush was due to speak at have claimed that the cancellation was due to security concerns arising from planned protests. However AP reports that:

Several human rights groups, including Amnesty International and the New York-based Center for Constitutional Rights, had planned to ask Swiss prosecutors to open a criminal investigation against Bush over the admission that he personally authorized the waterboarding of terrorism suspects.

 ”Whatever Bush or his hosts say, we have no doubt he canceled his trip to avoid our case,” the Center for Constitutional Rights and others said in a statement.

Legal experts say it is unlikely Swiss prosecutors would have had the time to examine any criminal complaint against Bush and take action, such as requesting him to respond to the allegations, before he left Switzerland again.

 Furthermore, an initial assessment by the Swiss Justice Ministry concluded that Bush would have enjoyed immunity from prosecution for any actions taken while in office, ministry spokesman Folco Galli told the AP.

Widney Brown, Amnesty’s senior director of international law and policy, said the group would continue to press for Bush’s prosecution the next time the former president travels to a country that has committed to prosecuting war crimes and where he could expect a fair trial.

 The claim by the Swiss Justice Ministry that, under international law, Bush would enjoy immunity from prosecution is a curious one and, of course, contrary to the decision of the English House of Lords in the Pinochet case the former Heads of State are not immune from prosecution for torture. Since Bush is no longer in office he is not entitled to the immunity ratione personae which international law grants to serving heads of State from arrest and prosecution by foreign States. That type of immunity (which was discussed by the ICJ in the Arrest Warrant case) attaches to the status of the head of State and comes to an end when he or she leaves office.

So the question that remains is whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts . (more…)

The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, here, here and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. (more…)

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted in the field of international economic law.  The competition is open to current students and those who have graduated within the last five years. The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The closing date for submissions is 30 September 2011. For submission details and terms and conditions, please see www.sielnet.org/essayprize.

One of the pleasures of the Christmas season in the UK is that it is also the pantomime season. I will confess to being a relatively recent admirer of the “panto”. However I would never have guessed that a panto could be accused of violating IHL. Not raising issues about the violation of IHL but itself violating IHL! But in this panto season the British Red Cross has accused a panto of doing precisely this. And they have a point too! How so? See the story in Scotland’s Daily Record: (more…)

It was reported last month that the Kenyan Parliament passed a motion calling on the government to withdraw from the International Criminal Court (see posts by Kevin Jon Heller at Opinio Juris – here and here  - and the discussion by Charles Jalloh at International Criminal Law Ferment – here and here). This move followed the ICC Prosecutor’s  successful application to the Pre-Trial Chamber for issuance of summons for six senior Kenyan officials accused of crimes against humanity in connection with the post election violence in that country (see previous EJIL:Talk discussion here). As Kevin Jon Heller noted in his second post (here ), that Parliamentary motion was then denounced by the Prime Minister. However, it has now been reported in the Kenyan Press that the Kenyan governments (or parts of it) are engaged in an effort to lobby other African governments to adopt a resolution at the African Union Summit at the end of January which would call for withdrawal by African States from the ICC.

On Tuesday 10 January, the Kenyan Weekly Standard reported that :

Kenya is laying ground for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.

Sources in Government told The Standard, the plot to instigate the pullout from International Criminal Court is being driven by a shuttle diplomacy by some ministers within African capitals ahead of the January 30-31 AU meeting in Addis Ababa. This meeting is expected to set the agenda for the main Summit attended by African leaders in July.

…The Government, it was further reported, has or is about to assign five ministers with the envoy role in this mission of lobbying African states …

The AU deal Kenya is pursuing entails backing a motion moved by a African Arab state that may see the Africa Union summit this July endorse a choreographed pull out from the manacle of the Rome Statute. Because of the indictment of al-Bashir, the use of an Arab state to float the motion would strategically be seen as taking Kenya out of the picture, and making her look like just part of the wave of Africa’s protests against alleged bias against the continent by ICC. (more…)