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Home Archive for category "EJIL Analysis"

Revisiting the Five Techniques in the European Court of Human Rights

Published on December 12, 2014        Author: 

Ireland v United Kingdom was the first inter-state case before the European Court of Human Rights (ECtHR). Decided in 1978, it revolved around internment in Northern Ireland and the techniques used by British forces when interrogating internees at the height of ‘The Troubles’. As regards the treatment of the internees, the Court found that the use of the so-called ‘Five Techniques’ amounted to inhuman and degrading treatment, but did not meet the threshold of severity to attract the “special stigma” of a torture finding against the United Kingdom. Since then, the Court has confirmed that what constitutes ill-treatment of sufficient severity to be deemed ‘torture’ under Article 3 can be subjected to the ‘living instrument’ doctrine (Selmouni v France), and various scholars have remarked that, should the Court be confronted with the same facts now as it was in Ireland v United Kingdom, a finding of torture would be handed down. Now, following investigative journalism by RTÉ (the Irish national broadcaster), new evidence has come to light that may well test this supposition.

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Jurisdiction, Attribution and Responsibility in Jaloud

Published on December 11, 2014        Author: 

In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.

It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:

There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.

Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.

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ICC Prosecutor Says Full Inquiry into Russian War Crimes Might Come Soon, But Omits Some Crimes

Published on December 10, 2014        Author: 

The ICC’s Office of the Prosecutor recently released its annual report on preliminary examinations. The big news, analyzed by many commentators, is that the OTP is conducting a preliminary examination of alleged crimes of torture by U.S. forces in Afghanistan. In the highly unlikely eventuality that the OTP does not close the investigation on one of a variety of procedural grounds, it could be the Court’s first confrontation with a powerful Western state, and its first proceedings against nationals of a non-member state for actions on the territory of a member state.

But the U.S. is not the only major power and non-state party that the report throws down the gauntlet to. The 2014 report announced that a full investigation of potential Russian crimes committed in Georgia may be opened “in the near future.” Since 2008, the OTP has been investigating “the situation in Georgia,” that is, the 2008 Russo-Georgian war, that resulted in Russia cementing its control over occupied parts of Georgia while also conquering new territory. The investigation focuses on ethnic cleansing by Russian-backed forces of ethnic Georgians from Russian-occupied territory in Georgia (South Ossetia). The OTP has concluded that there is a reasonable basis to believe that these actions “amounted to the crime against humanity  of forcible transfer of ethnic Georgians under article 7(1)(d).”

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part II

Published on December 9, 2014        Author: 

This is Part II of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights on the proposal to introduce temporary exclusion orders of British citizens suspected of engaging in terrorist activities. Part I discussed the implications of temporary exclusion orders (TEOs) for the UK’s international legal obligations to British citizens. This Part discusses the implications for its obligations to other States.

Responsibility to other States

There is no justification in international law for the exclusion, even temporarily, of British citizens from the United Kingdom. So far as such exclusion engages the legal interests of other States, there may be some scope for agreements with the UK. However, no such agreement can avoid the UK’s international legal obligations towards its citizens – they continue and cannot be outsourced.

The unstated premise of ‘host State’ assistance is, necessarily, the existence of an agreement between the United Kingdom and any such State. The Home Office Impact Assessment on temporary exclusion orders refers briefly and on just a few occasions to ‘host’ States, to describe those which will be expected to carry the burden of the TEO policy, including the risks which presumably accompany harbouring individuals suspected of terrorist associations. The Impact Assessment refers repeatedly to the risk which terrorism might pose to the United Kingdom, but not at all to any such risk to ‘host’ States. Moreover, apart from one reference to discussions with France in relation to juxtaposed controls, neither this document nor any other mentions the necessity for agreements, or considers the elements which might well be considered essential. Read the rest of this entry…

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‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part I

Published on December 8, 2014        Author: 

This is Part I of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights. This Part discusses the implications of temporary exclusion orders for the UK’s international obligations to British citizens. Part II, to be published tomorrow, will discuss the implications for its obligations to other States.

Introduction

The United Kingdom Government’s recent proposals to introduce a system of ‘temporary exclusion orders’ (TEOs) to be applied to British citizens raise a number of international legal issues, including (a) the responsibility of the State to its citizens; (b) the responsibility of the State to other States; and (c) the responsibility of the State to the international community of States at large when combatting terrorism.

In my view, the proposal for a system of TEOs to be applied to British citizens raises a host of insuperable legal and practical problems.

First, denying entry to the United Kingdom of British citizens suspected of involvement in international crimes or serious crimes of international concern, besides posing potential risks for other States, is likely incompatible with the duties which the State owes to its citizens, with the rights of other States, and with the obligation of the UK to prosecute certain offences (for which concerted international action is required).

Second, at the practical level, there is no reason to suppose that any other State would be prepared to accept the risks incidental to assuming responsibility for excluded British citizens. These risks include the security question – the possible threat to the community of the ‘host’ State – as well as the legal risks which attach to taking responsibility for the individuals concerned, whether or not they are detained. As the United Kingdom now recognizes its duty to admit its citizens on deportation, any potential host State would be well advised to go for this option.

Third, the implementation of TEOs in practice, though speculative at this stage, seems likely also to impede the UK’s ability to fulfil its international obligations to combat terrorism, effectively and in good faith, and the scheme certainly outwith the letter and the spirit of paragraph 6 of Security Council resolution 2178 (2014).

Finally, it is clear, in my opinion, that TEOs will engage the legal rights of those affected, under the common law (including the writ of habeas corpus), possibly under European Union law (cf. the judgments of the Grand Chamber in Rottman v Freistaat Bayern and Zambrano v Office national de l’emploi), and certainly under the European Convention on Human Rights. The ensuing and readily foreseeable litigation will lead to considerable wastage of resources and funds which would be better directed to implementation of the measures identified by the Security Council in resolution 2178 (2014). The TEO initiative, in my view, should be abandoned in the public interest. Read the rest of this entry…

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Why the ICC Should Be Cautious to Use the Islamic State to Get Out of Africa: Part 2

Published on December 4, 2014        Author: 

Leadership accountability or symbolic responsibility?

Using nationality jurisdiction to focus on the accountability of ‘foreign fighters’ is likely to entail a fundamental shift in prosecutorial policy. The OTP has traditionally defended a focus on leadership accountability, i.e. prosecution of ‘those who bear the greatest responsibility for the most serious crimes’. This concept was a cornerstone of prosecutorial strategy during the Ocampo era, and has been applied in early prosecutorial practice (e.g., Prosecutorial Strategy 2009-2012). The OTP has slightly adjusted its strategy in its Strategic Plan 2012-2015 (para. 22) where it recognized the need to gradually build cases upwards. It defended a bottom-up approach based on ‘limitations in investigative possibilities and/or a lack of cooperation and the required evidentiary standards’. It argued that the Office would first investigate and prosecute ‘a limited number of mid- and high-level perpetrators’ in order to ultimately ‘have a reasonable chance to convict the most responsible’. It also noted that the Office would consider ‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’ since such a strategy would ‘in the end be more cost-effective than having unsuccessful or no prosecutions against the highest placed perpetrators’.

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Why the ICC Should Be Cautious to Use the Islamic State to Get Out of Africa: Part 1

Published on December 3, 2014        Author: 

It is tempting to say that the International Criminal Court (ICC) should open a preliminary examination into the violence of the self-proclaimed Islamic State of Iraq and Syria (‘Islamic State’, hereinafter IS). IS has branded itself as an enemy of the West. Its atrocities are attacks on the very foundation of human dignity and conceptions of civilization. They shock the conscience of humankind. Some of the rhetoric denies the very norms and rules on which international law has been built for centuries. Evidence of atrocities is displayed publicly to illustrate power and spread fear. Records indicate that high numbers of nationals of ICC State Parties have been mobilized as so-called foreign fighters, including nationals of Western countries, North Africa (e.g., Tunisia) and the Middle East (e.g., Jordan). The ICC is in a position of vulnerability. It is under perceived pressure to ‘get out of Africa’.

At first sight, all of the factors make IS a perfect target for ICC intervention. Prosecutor Bensouda noted in an interview on 20 November that the Office of the Prosecutor (OTP) would consider options of ICC engagement. ICC assessment is at an early stage, i.e. Phase 1 of preliminary examinations where the OTP makes an initial assessment of all information to analyse the seriousness of information received and identify the crime base. But taking IS crimes to the ICC poses particular problems that deserve careful consideration. Starting it on a wrong premise might compromise some of the very foundations on which the legitimacy of the ICC is based.

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Some Reflections on the Legal Treatment of Terrorism: Marking the 11th Seminar of the Latin American Study Group on International Criminal Law

At its last seminar, which took place in Lima from 27 to 29 October 2014, the Latin American Study Group on International Criminal Law (Link KAS/Link CEDPAL) discussed the complex phenomenon of terrorism in its Latin American context. Taking group members’ presentations as its starting point, the debate focused on how this phenomenon is being dealt with in some Latin American states and the transnational and international issues arising in consequence. The following main problems were identified: the lack of conceptual clarity in the definition of terrorism as a criminal offence, the flexibilisation of the principle of legality, the disproportionality of punishments, forms of procedure that seem dubious from the perspective of the rule of law, and a populist, warlike discourse (“guerra al terrorismo”). The most important conclusions were included in the so-called Declaration of Lima, which is printed at the end of this brief report.

Over and above aspects of criminal law in a narrower sense, the fight against terrorism challenges states from a criminological and socioeconomic point of view, as well as from the perspective of criminal policy. Furthermore, the political populist discourse on terrorism has influenced the way terrorism is treated in criminal law. This topic’s complexity starts with the lack of conceptual and terminological clarity concerning what is actually to be understood as terrorism and accordingly what is to be prosecuted and punished. The lack of a definition of terrorism that has been mutually agreed upon at an international level has led to (the possibility of) very different acts – ranging from social protest to the undifferentiated use of weapons of great destructive power – being called terrorist.

In the Declaration of Lima, the study group explicitly acknowledges that terrorism is a serious crime; however, this does not free the states in question from their obligation to observe the boundaries set by the rule of law. This is why it is necessary to create a very precise legal definition of the relevant punishable conduct and observe the principle of proportionality when determining the extent of the punishment and the concrete sanction to be applied. Furthermore, no special jurisidiction may be created. In addition, the principles and rules of fair trial under the rule of law must apply in the same way they do to other criminal offences. Read the rest of this entry…

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Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

Published on December 1, 2014        Author: 

These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27). Read the rest of this entry…

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Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression

Published on November 27, 2014        Author: 

Sometimes, it seems that it is the reality of international law that provides one with questions of treaty law that probably even a sophisticated international law professor would have had problems inventing.

On November 19, 2014, San Marino became the 19th State to have ratified the amendments to the Rome Statute on the crime of aggression. At the same time, Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in identical terms provide that “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties” and further provided that under Art. 15bis, para. 3 and Art. 15ter, para. 3 respectively, a decision has been adopted by the Assembly of States Parties to activate the Court’s jurisdiction concerning the crime of aggression, such decision to be taken at the earliest in 2017.

What is worth noting, however, is that by now there are also eleven States, namely Cabo Verde, Côte d’Ivoire, Grenada, Guatemala, the Maldives, the Phillipines, St. Lucia, Tunisia, Vanuatu, Moldova and the Seychelles that have ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted. All of those States, when ratifying the post-Kampala Rome Statute, did so without expressing an intention not to be bound by the treaty as amended. This raises the intriguing question whether 19 + 11 equal 30, i.e. whether these new contracting parties ought to be counted towards the quorum required, as mentioned, by Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in order for the Court to exercise its jurisdiction.

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