EJIL: Talk!

Blog of the European Journal of International Law

Articles posted by Carsten Hoppe

One step forward, two steps backward: The ICJ interprets Mexico’s Request for Interpretation of Avena and other Mexican Nationals

Published on February 3, 2009 Author: Carsten Hoppe

On 19 January 2009, the International Court of Justice formally declined to interpret its judgment in the Case of Avena and Certain Other Mexican Nationals (Avena), which dealt, as did its “predecessor”, the LaGrand case, with the US non-implementation of the Vienna Convention on Consular Relations. Both LaGrand and Avena ended with the clear finding of the Court that the individuals whose rights under the VCCR had not been respected were entitled to review and reconsideration of their judgments and sentences. Specifically in paragraph 153 (9) (of Avena), which formed part of the dispositif, the Court found

… that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals …by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment.

Failure of the United States to provide such review and reconsideration, would be a breach of its international obligations. In the case of the LaGrands this had been irrevocably the case as they had both been executed in the United States by the time the judgment was delivered. Contrary to the situation in the LaGrand case, all of the individuals whose rights were at issue in the underlying Case of Avena and Certain Other Mexican Nationals were still alive by the time the Court had delivered its judgment on 31 March 2004. In fact, Mr. Medellin was the first for whom an execution date had been set since, which was to be carried out on August 5, 2008. It is in this context that one should put Mexico’s June 5, 2008 filing of a request for interpretation of the Avena judgment, and the request for an order of provisional measures accompanying it, which most importantly sought to halt Mr. Medellin’s execution. With only two months left before Mr. Medellin’s scheduled execution date, the ICJ managed to hold oral arguments and produce an order of provisional measures within the very short timeframe of 41 days.

Judging from Mexico’s initial request, many familiar with Article 60 of the Court’s Statute had early on counted Mexico out. After all, Mexico had the difficult task to convince the Court that it was not simply trying to have another round of proceedings on the United States’ failure to implement Avena. Rather it had to demonstrate that, in the words of Article 60, there was a “dispute as to the meaning or scope of the judgment” allowing the Court to “construe it upon the request of any party”.

Mexico’s initial request seemed ill-equipped to achieve that goal, asking the Court to declare that

..the obligation incumbent upon the United States under paragraph 153(9) of the
Avena Judgment constitutes an obligation of result as it is clearly stated in the
Judgment by the indication that the United States must provide “review and
reconsideration of the convictions and sentences” but leaving it the “means of
its own choosing;”
and that, pursuant to the foregoing obligation of result,
(1) the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena
Judgment; and
(2) the United States must take any and all steps necessary to ensure that
no Mexican national entitled to review and reconsideration under the
Avena Judgment is executed unless and until that review and
reconsideration is completed and it is determined that no prejudice
resulted from the violation.

Taking the request at face value, it seemed that, unless the United States would be gullible enough to maneuver itself into the position of arguing that the review and reconsideration mentioned in paragraph 153(9) of the Avena Judgment did not refer to an obligation of result (but one of conduct), there would be no way for Mexico to demonstrate the existence of a dispute. Read the rest of this entry…

Filed under: EJIL Analysis, International Court of Justice

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Old Law and New Trends – A Rejoinder to Professor Cryer and Hannah Tonkin

Published on January 24, 2009 Author: Carsten Hoppe

Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers. Read the rest of this entry…

Filed under: EJIL: Debate!, International Criminal Law, State Responsibility

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The Buck Stops Here: State Responsibility and PMCs

Published on January 16, 2009 Author: Carsten Hoppe

Editors note: Carsten Hoppe is on the Project Management team of the Priv-War Project and Executive Director of the European Society of International Law. He is currently writing a PhD, on the same topic as his article, at the European University Institute. He has a JD from the University of Michigan Law School and has previously clerked for Judge Bruno Simma at the International Court of Justice. His article “Passing the Buck: State Responsibility for Private Military Companies”, (2008 )19 EJIL 989 -1014 is available here.

What makes the video below from the Iraq war more disturbing than the countless others we have seen?

First off, Elvis Presley. The scenes of bullets flying into civilian vehicles are cut to a trivializing soundtrack of “Mystery Train” by the King of Rock ’n Roll. But what may be even more disturbing is that the video does not show a single soldier. Rather, it is attributed to a UK Private Military Company under contract with the United States, an employee of which claims to have shot the video. Granted, it will be very difficult to assess who is ultimately responsible for the shootings. But this problem is not the end, but rather the beginning of my inquiry. How can it be that private company employees get to drive around in a war zone with assault rifles and machine guns, clearing the road of suspected attackers in approaching vehicles? Is it true that states hiring these Private Military or Security firms [PMSCs / contractors] can outsource their international responsibility by way of a simple contract?

Of course, at present, states are free under international law to outsource functions in armed conflict, such as guarding and protection, interrogation, or even combat, which formerly were in the exclusive domain of soldiers. However, the article and my broader work on PMSCs for the Priv-War Project and my dissertation demonstrate that, while they may spend the money, they are not free to “pass the buck” with respect to responsibility. Thus the most important conclusion of my piece is that where contractors function as armed groups and are responsible to the party through their obligations under a contract, responsibility for all their acts, as first envisaged by states in 1907, will lie for the hiring state.

To get to this point, I first compare responsibility of a state for a classical soldier to all the options for attribution of private conduct. In this analysis, a responsibility gap becomes evident: unless a state outright incorporates the contracted personnel into its armed forces, or the contractors can be regarded as completely dependent on the state (a tough burden of proof to meet), the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.

In a further step, I show that positive obligations of the state under IHL narrow this gap to some degree. Read the rest of this entry…

Filed under: EJIL: Debate!, State Responsibility

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