As our readers are aware, currently pending before the Grand Chamber of the European Court of Human Rights is the fascinating case of Nada v. Switzerland.  It concerns an Italian national resident in the Italian enclave of Campione in Switzerland, who was placed at Switzerland’s request on a terrorist suspect list by the UNSCR 1267 Committee, and subjected to targeted sanctions. Among these sanctions is a travel ban that Switzerland implemented through its domestic legal mechanisms. Accordingly, the applicant was denied permission to transit through Switzerland from Campione, thus rendering him unable to move even to other parts of Italy, let alone anywhere else, essentially confining him to the (rather posh and casino-filled) 1.6 square km of Campione. Mr Nada complains that the Swiss travel ban violates his rights under Arts. 5 (liberty of person) and 8 (private life) of the ECHR.

As Dapo explained in his earlier post, this is one in a series of recent cases dealing with the impact of the UNSC terrorist sanctions regime on human rights, such as OMPI, Kadi I and Kadi II before EU courts (see Antonios’s recent post) or Sayadi before the Human Rights Committee, implicating the supremacy clause in Art. 103 of the UN Charter, pursuant to which UN member states’ obligations under the Charter (including UNSC resolutions) prevail over conflicting obligations under other international agreements. Also currently pending before the ECtHR Grand Chamber is the Al-Jedda case, directly dealing with the interaction between the ECHR and Art. 103 of the Charter, with the UK House of Lords previously explicitly holding that the Security Council can override the Art. 5 ECHR ban on preventive detention.

Nada, like Al-Jedda, presents a situation of apparent norm conflict. On the one hand, the UNSC commands Switzerland not to allow Mr Nada to travel; on the other, the ECHR (arguably) commands Switzerland to let Mr Nada through. In my article ‘Norm Conflict in International Law: Whither Human Rights?,’ (2009) 20 Duke Journal of Comparative & International Law 69 I examine several different approaches for avoiding or resolving such norm conflicts. In effect, when addressing the apparent norm conflict in Nada the European Court will have before it a menu of several different options, and we will see which one it chooses. I would now like to outline some of these options – though of the course the Court might come up with something completely new.

The first impulse in practically all cases of apparent norm conflict is to avoid the conflict through (harmonious) interpretation, usually by reading down the content of one of the conflicting norms so that the danger of conflict is no longer real. That reading down can be consistent with the text and object and purpose of a particular norm, or can range down from the more creative interpretative approaches up to the quite forcible limitation of the particular norm. Generally speaking, the more forcible the interpretation, the more it looks like legislation and the less legitimate a route for a court to take. In our specific example of Mr Nada, the Court could read down either the ECHR or the relevant UNSC resolutions. If avoidance is impossible, the conflict may (but also might not) be resolved through the application of a hierarchical or hierarchy-like rule. Some conflicts may be both unavoidable and unresolvable.

(Warning! long post).

(more…)

A couple of days ago EJIL: Talk! celebrated its second birthday. With more than three hundred posts and an ever increasing readership, we hope that the blog continues to grow in the new year. We also wish to express our thanks to our contributors and commentators, and to extend our warmest wishes to all of our readers for the upcoming holidays.

As a fitting follow-up to Frederic and Alexandra’s fabulous fable on the rise and fall of Eunomia, readers might be interested in Roger O’Keefe extraordinary performance at ESIL in Cambridge this September. To much hilarity among the audience, Roger spun a tale about gaps in the law that featured a stellar cast, including a bespectacled and boyish Finnish professor, a mercurial French ILC rapporteur, and EJIL’s own Joseph Weiler, who reminded everyone, as the ‘Talmud long ago taught us’, ‘that even contradictory conclusions can both be the living word of God’.

Roger’s speech – which is not only extremely funny but has something truly useful to say – is now available on the Cambridge conference website (h/t to the new blawg written by Nottingham PhD students). As good as the speech itself was, it was Roger’s delivery that made it truly great. Easily one of the most entertaining (not to mention non-soporific) academic performances that I’ve ever seen; regrettably, no Youtube clip survives. Too bad if you weren’t there, but please do read the speech itself!

Today the ICJ delivered its merits judgment in the case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo). The Court found that in carrying out the arrest, detention and expulsion of Mr. Diallo in 1995-1996, the DRC violated his fundamental rights under applicable human rights treaties, but that it did not violate his direct rights as “associé” in the companies Africom-Zaire and Africontainers-Zaire. The judgment is available here, the Court’s press release here.

The ICJ has announced today that Congo has withdrawn its application against France in the case concerning Certain Criminal Proceedings in France (Republic of the Congo v. France). (ICJ Press Release). The case dealt with the lawfulness of criminal proceedings in France taken under the principle universal jurisdiction. A notable feature of the case was also that the ICJ’s jurisdiction was based on forum prorogatum, i.e. France’s consent that the specific case be brought against it.

I am myself not at all familiar with the history of the litigation, but I find it quite odd for an application to be discontinued at such a late stage in the proceedings. The case has been pending since 2002, and it has gone through no less than three (3!) rounds of written pleadings. Oral proceedings were due to start on 6 December this year, i.e. a month before the request for discontinuance was filed with the Court. I really wonder what precipitated such a turn of events. Comments by readers with some insights into the matter would be most welcome.

Yesterday the STL Appeals Chamber issued its first substantive decision (h/t Bill Schabas’ blog), penned by Professor Antonio Cassese, who was not only the presiding judge but also the judge rapporteur in the Chamber. The decision delves in great detail into the concept of inherent powers of international courts and tribunals, and is strongly reminiscent of the ICTY Appeals Chamber’s first decision in Tadic, over which Judge Cassese obviously also presided.

Expansive invocations of inherent powers have not come without controversy. The STL decision, although ostensibly dealing with a very technical matter of the access of a potential suspect to documents in his case file, is well worth the read on several points of principle. I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of customary international law now exists to the effect that international courts and tribunals possess an inherent jurisdiction, which confers on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz-Kompetenz). I was even more struck by how the Appeals Chamber went on to prove that such a customary rule existed (para. 47):

The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction. The combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.

Fantastic, no? Note how custom now apparently equals what tribunals say is custom, plus lack of objection by anyone else. Note also how the Appeals Chamber does not refer to state practice and opinio juris, but to practice pure and simple, as well as to the ‘lack of any objection by States, non-state actors or other interested parties‘ and the ‘acquiescence of all the international subjects concerned.’ Hardly an orthodox account of the formation of custom!

What a positively weird question, you might think. The Rome Statute of the International Criminal Court cannot be binding on individuals. It is a treaty, to which only states can be parties, since individuals are not subjects of international law, and it is furthermore a general principle of international law that treaties cannot bind non-parties. This is the answer that public international lawyers would give almost by reflex.

But what if the question was put in slightly different terms — are the provisions of the Rome Statute that define international crimes and forms of individual responsibility substantive or jurisdictional in nature? Do they, in other words, define when an individual is criminally responsible, or do they only say when the Court can establish jurisdiction for the individual’s violation of a norm emanating from a different source of international law, such as custom? Many of us, particularly those with a more of a criminal law background, would be tempted to say that of course the provisions of the Rome Statute must be substantive in nature, since one of the purpose of the Statute was precisely to get away from vague and indeterminate inquiries into custom. But if that is true, then the Statute — a treaty — must be binding on individuals who have never consented to be bound by it, nor could have done so.

But why does this matter? If the Statute is only jurisdictional in nature, as have incidentally been the statutes of all other international criminal courts and tribunals so far (at least nominally), then the source of substantive norms of criminal law binding on individuals must be elsewhere, primarily in customary law. If this is so, then the Statute could never go beyond customary law, and any individual accused before the Court will at least in principle have to be able to mount a challenge as to whether the charges against him have a basis in customary law. If, on the other hand, the Statute is seen as being substantive in nature, then it may well go beyond customary law, but it would arguably run afoul of the nullum crimen sine lege principle in at least two cases — when a particular situation has been referred to the Court by the UN Security Council or by a non-state party — since the supposedly substantive Statute would not have been binding on the individuals concerned at the time that they allegedly committed their offense.

Let me put this in less abstract terms. When militia under Sudanese control committed mass atrocities in Darfur, were they violating custom or the Rome Statute, to which Sudan is not a party? And if the answer is the former, could they be prosecuted before the ICC under UNSC referral even for those crimes which may not be customary in nature but are nonetheless in the Statute, or under theories of responsibility which are almost definitely not customary? Can, for example, Omar Al-Bashir, the President of Sudan, (if ever tried) be held responsible under a theory of indirect perpetration or perpetration by means, which has never been used in any other international criminal tribunal? Would this not violate the principle of legality, as the Rome Statute did not extend to the territory of Sudan at the time the alleged offenses were committed?

I explore these and other issues, such as when, why and how treaties can directly bind individuals without the mediation of domestic law, and the options that the Court will have in addressing challenges to charges based on the nullum crimen principle, in an article forthcoming in the Journal of International Criminal Justice. A pre-print draft is now available on SSRN, and any comments from our readers would be greatly appreciated.

We experienced some technical difficulties yesterday, due to which the blog was inaccessible for the whole day. Our apologies to the readers.

After the excellent recent conference in Cambridge, the next event of the European Society of International Law will be the 4th ESIL Research Forum, to be held on 27-28 May 2011 in Tallinn, Estonia. The call for papers is here. The deadline for the submission of abstracts for the forum’s 15 panels is 15 December 2010, while the selection will be made in January 2011. A further selection of the papers presented will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff). A limited number of scholarships to cover travel costs will also be available.

I am sorry to report that Tom Bingham, the former senior law lord, has died Saturday, aged 76. He was on any account the leading judge of his generation – probably, in the words of Philippe Sands writing today in the Guardian, ‘the greatest English judge of the modern era.’ In particular, his contribution to the implementation of human rights and of international law generally in English courts has been immense. He was President and Chairman of the British Institute of International and Comparative Law, and indeed BIICL had recently opened the new Bingham Centre for the Rule of Law. A sad day for our profession.