“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also “ urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

With regard to point (1) the AU Commission takes exception to the ICC Pre-Trial Chamber’s decision that “that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.” The AU Commission argues that:

“As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. Indeed, contrary to the assertion of the ICC Pre-Trial Chamber I, article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess. In this regard, it is to be recalled that the immunity accorded to senior serving officials, ratione personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime.”

As I explained in my post in December commenting on the ICC decision, I agree with these points regarding the applicability of international law immunities before international tribunals. However, I have also argued that the ICC Pre-Trial Chamber could simply have said that the effect of the referral of the Darfur situation by the UN Security Council has the consequence that Sudan is bound by the Statute (including by the removal of immunity in Art. 27). The effect of this would mean that Sudan is to be regarded as being in the same position as a State party to the Rome Statute. In its press release, the AU Commission engages with this argument of mine, and disagrees with me. They argue that:

“The Security Council has not lifted President Bashir’s immunity either; any such lifting should have been explicit, mere referral of a “situation” by the UNSC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law. The consequence of the referral is that the Rome Statute, including article 98, is applicable to the situation in Darfur.

Can the ICJ Decide on Immunity of State Officials Sought by the ICC?

The ICC Pre-Trial Chamber’s Decisions and the AU Commission response form the background to the AU summits call for an advisory opinion by the ICJ. The AU summit asks the AU Commission to consider seeking an advisory opinion from the ICJ. Under Article 96 of the UN Charter  and Art. 65 of the Statute of the ICJ, only organs of the United Nations or UN specialised agencies may be authorised by the UN General Assembly to request advisory opinions. So the AU Commission cannot itself seek an advisory opinion from the ICJ. For a request to be made,  it would most likely have to come from either the General Assembly or the Security Council. It is unlikely that the Security Council would seek an advisory opinion on this question since the advisory opinion is an attempt to do what the Security Council has thus far failed to do (to stop the case against Bashir). Any request would more likely come from the General Assembly, where African States might be able to muster greater support for an ICJ advisory opinion.

A significant issue that would arise in seeking an advisory opinion would be what question or questions should be put to the ICJ. Christopher Gevers in an interesting post at the War and Law blog notes that:

“If an advisory opinion is sought it could address a broad range of legal issues such as (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of Security Council resolutions referring matters to the Court on (i) and (ii).”

Christopher also explores the different options for taking the matter ot the ICJ and notes that in addition to the advisory opinion route, “Sudan could bring a case against an ICC state party – in particular those countries subject to PTC decisions such as Kenya and Malawi.” The problem with this option is that if the decision goes against Sudan, that State would be bound by the adverse decision.

A further option is that the matter is referred to the ICC Assembly of States Parties under Art. 119(2) of the Rome Statute under which any dispute relating to the interpretation or application of the ICC Statute, other than those concerning the judicial functions of the ICC, may be referred to the Assembly of States Parties. The Assembly may either seek to settle the dispute itself or make recommendations as to how it may be settled, including referral to the ICJ. One issue that arises here is whether the dispute should be regarded as concerning a judicial function of the ICC, in which case the Assembly does not have competence to deal with it. In any case, the Assembly cannot itself refer a matter to the ICJ. All  that this provision means is that the Assembly may recommend that disputing parties refer a dispute under the Rome Statute to the ICJ.

Assuming that  a request for an advisory opinion is made by the UN General Assembly, the ICJ would undoubtedly have jurisdiction to render the opinion since the request would deal with a legal question. However, as the ICJ has stressed in several advisory opinions, the fact that it has jurisdiction to render an advisory opinion does not mean that it will. The Court has a discretion to refuse to render an advisory opinion since Article 65 of its Statute only says that it “may” give an advisory opinion requested of it. Though the Court has this discretion it is one that is very rarely exericised. I think I am right in saying that the ICJ has never exercised this discretion though the PCIJ did refuse to render an opinion in the Eastern Carelia case. The Court has stated in many cases that giving advisory opinions requested by UN organs represents the Court’s participation in the activities of the UN and, that in principle, such a request should not be refused. The ICJ has gone on to say that there must be “compelling reasons” for it to exercise this discretion. Even if the request came from the General Assembly, the fact that Bashir case arises out of a Security Council referral to the ICC or that the case would involve interpretation of UN Security Council resolutions referring the situation would not be sufficient grounds for the Court to refuse to give the opinon (see the Kosovo Advisory Opinion).

One issue that might lead the Court to refuse to render an opinion on this question might be considerations of judicial comity. In other words, it remains to be seen whether the Court would be happy to be used as a form of appellate court over the ICC.  Some might feel it inappropriate for the ICJ to be used in this way. There have been different views among ICJ judges as to whether steps can and should be made to put the ICJ at the apex of a judicial structure involving international courts. Judge Guillaume, former ICJ President, was of the view that steps should be taken to allow other internationl courts to request advisory opinions from the ICJ on question of general international law (Guillaume ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848 and ‘Advantages and Risks of Proliferation: A Blueprint for Action’ (2004) 2 Journal of Intl Criminal Justice 300). However, Judge Higgins, also a former ICJ President, thought that the suggestion of institutionalising the ICJ as a sort of appeals court (or court to whom others referred questions of general international law) was unworkable (see Higgins, “A Babel of Judicial Voices? Ruminations from the Bench”, (2006) 55 ICLQ 791). It remains to be seen whether there would be political will to use the ICJ in this way. However, if such will did exist, I would not have thought that it is inconsistent with the ICJ’s role as a Court of Justice for it to decide on matters that have been decided on by other tribunals. For one thing, the ICJ would be able to decide on the matter from the perspective of customary international law without being specifically tied to the provisions of the Rome Statute.

 Valentina Azarov is a lecturer in human rights and international law and the chair of the Human Rights Program at the Al-Quds Bard College, Al-Quds University, East Jerusalem, Palestine. Formerly she worked as a legal researcher with Al-Haq, a Palestinian human rights organisation, with consultative UN ECOSOC status, and HaMoked-Centre for the Defense of the Individual, a legal aid human rights group that submits petitions before the Israeli High Court on violations of Palestinian rights in the occupied Palestinian territory. She is also an author for the International Law Observer.

On 26 December 2011, the Israeli High Court of Justice rendered its judgment in the case concerning Israel’s quarrying activities in the occupied Palestinian territory filed by the Israeli human rights organisation Yesh Din, who demanded that Israel terminate its quarrying activities since they violate Israel’s obligation as an Occupying Power to administer the occupied territory for the benefit of the local population (HCJ 2164/09 Yesh Din v The Commander of the Israeli Forces in the West Bank et al. (Unofficial English translation)). The judgment is an important occasion for examining the Court’s practice of applying international law to the manner in which the Israeli authorities’ administer the occupied Palestinian territory. By adopting a dynamic interpretation of the principles of the international law of belligerent occupation, in particular the ‘usufruct rule’ enshrined in Article 55 of the 1907 Hague Regulations, the Court’s ruling construes a right for the Israeli authorities to extensively exploit the natural resources in the Palestinian territory for the benefit of the Israeli private market. Among others, Gross’ Op-Ed on the judgment in the Israeli daily newspaper Haaretz, notes the purposive character of the Court’s argumentation, and the way in which its verdict violates the rules of the international law of belligerent occupation.

On 10 January 2012, Yesh Din submitted a request for a further hearing in the case with a larger panel of judges to examine a set of principled legal questions raised by the judgment. An amicus curiae brief was also presented to the Court by a group of Israeli international law scholars stating that the Court erred in its interpretation of Articles 43 and 55 of the Hague Regulations and concluding that the Court’s analysis is inconsistent with the most fundamental principles of the law of occupation.

Israel started operating quarries in the occupied Palestinian territory in the 1970s, with their production levels growing incrementally since. Today, there are ten quarries, eight of which are in operation. According to the petitioners, the majority of their yielded product (approximately 75%) is transferred for use in the Israeli construction market, whilst in some of these quarries the percentage of output transferred to the Israeli private market reaches 94%. The State claimed that the current level of production makes for about half a percent of the total potential production quota, and noted that Palestinian workers are being employed in the quarries and that royalties are paid to the Civil Administration, the Israeli military government in the occupied Palestinian territory, from the quarries’ operation (paragraph 1 of the judgment).

The PLO-Israel Interim Agreements 1995 and Israel’s quarries in occupied territory

Before considering the petitioners’ arguments, the Court examines the PLO-Israel Interim Agreements 1995 in which the parties agreed to transfer rights over the quarries to the Palestinian Authority (which was created by the Agreements to administer the occupied territory). Whilst noting the political character of these practical arrangements, the Court holds that Israel’s (legal) right to operate quarries was ‘settled’ in the Agreements (Article 31 to the First Addition to Annex 3 (Civil Annex)),

“it seems that the Petitioner may have forgotten that the best interests of the protected population – certainly considering the manner by which such interests have been portrayed in this petition – lie within the responsibility of the Palestinian Authority […] the Interim Agreement stipulates that responsibility over the issue of quarries […] shall be gradually transferred from the Civil Administration to Palestinian hands […] the Israeli and Palestinian parties had seen fit to maintain explicitly the status of quarries operating within Area C, such that it could be determined in the course of future negotiations over the final agreement” (paragraph 6 of the judgment).

The Court effectively makes the issue of Israel’s quarrying activities in the occupied territory a ‘non-justiciable’, political matter, resulting in its dismissal since the Court “shall not involve itself […] in petitions whose dominant aspect consists of considerations of the political-national-security kind” (Ibid). Critically, the Court fails to mention that the responsibilities in question were never actually transferred to the Palestinian Authority. This conclusion thereby disregards the fact that, based on the application of the Agreements, Israel’s quarrying activities in the occupied territory are being undertaken ultra vires (as noted in the Amicus Curiae brief submitted to the Court in a request for a further hearing, following the judgment). Instead, in light of the perceived relevance of the Agreements to the resolution of these questions, it adds,

“The suitable framework for deciding the issue of the future activities of Israeli quarries in the Area is within the framework of diplomatic agreements, wherein the Petitioner would not be an eligible party to bring claims before the State. This is true in particular considering the fact that, as aforementioned, the Petitioner’s arguments were eventually based on an alleged general infringement of Palestinian rights under circumstances in which the Palestinian Authority itself had been a party to a settlement referring to the activities of the Quarries within the Interim Agreements” (Ibid).

This reasoning not only appears to grant the Agreements a quasi-legal character, but it also implies that the (political) Agreements can trump Israel’s international law obligations, effectively affirming Israel’s violation of the law of occupation and allowing for the Israeli authorities extensive exercise of rights in excess of the limits of the law of occupation, in territory where it is not the legitimate sovereign. The Court’s reasoning also contravenes the basic international law rule that holds that a State may not invoke the provisions of its internal law as justification for its failure to fulfill its obligations under international law (enshrined in Article 27 of the 1969 Vienna Convention on the Law of Treaties).

Critically, the Court’s understanding of the status and consequence of the Agreements on the applicable framework of international law also ignores the ultimate purpose of the law of occupation, which guarantees the inviolability of protected persons’ rights by prohibiting the occupied population, and their representatives, from legally waiving their rights. Whilst the relevant provisions of the Fourth Geneva Convention (GCIV) refer to the rights “secured to them by the present Convention”, it remains unclear whether these include the rights provided for in the Hague law of occupation (viz. 1907 Hague Regulations). It is suggested that a functional, contextual interpretation of the law of occupation would presume protection for the ‘usufruct rule’ along with the individual and collective human rights that complement it (i.e. the right to self-determination and Article 25 of the 1966 International Covenant on Economic Social and Cultural Rights), thereby barring any argument concerning their possible waiver by the Palestinian Authority in the context of the Agreements. Admittedly, this is not a clear-cut application of the law, which has been subject to relatively little doctrinal discussion.

A partial understanding of the limits set by the ‘usufruct rule’

The ‘usufruct rule’ is codified in Article 55 of the 1907 Hague Regulations, which reads as follows,

“The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

 It is unquestionably a provision that is in itself unclear and affords very little guidance on either the purpose, use or quantitative limits of exploitation of natural resources by the Occupying Power in the occupied territory. Hence, the rule has been subject to varying interpretations. The view taken by the majority of publicists, and discussed by Arai-Takahashi in his seminal work on the law of occupation, is based on the rule that prohibits the Occupying Power to undertake permanent changes in the occupied territory, which thereby forbids it from either exploiting a mine at a rate more rapid than the previous level of production, or opening mines that were not in use prior to occupation.

A correct interpretation of the rule should be based on a contextual interpretation and an astute understanding of the general principles governing belligerent occupation, particularly the two important limits on the exploitation activities in occupied territory: (i) they must not have permanent effects and (ii) they must not be undertaken to the detriment of the local population. As such, these limitations strictly prohibit the occupier from interfering with the economic activity of the occupied territory with a view to drawing economic benefits for itself (see Antonio Cassese, ‘Powers and Duties of an Occupant in Relation to Land and Natural Resources’ in Emma Playfair ed., International Law and the Administration of Occupied Territories, Clarendon Press, 1992). This was the case with Israel’s exploitation of oil fields in the Sinai Peninsula, which violated Article 55 on the grounds that Israel was exploiting the economic resources of an occupied territory primarily for the purpose of domestic consumption, exceeding the level necessary to meet the expenses of occupation.

Already at the early stages of its analysis, based solely on these three sources – namely, Dinstein, Von Glahn and the Black’s law dictionary – the Court confidently arrives at the conclusion that so long as the property is not excessively damaged, the occupier is permitted to enjoy its products, seemingly even if these are used to cater to the interests of private actors on the Occupying Power’s private market (paragraph 7 of the judgment). At the crux of its analysis, whilst noting that the ‘usufruct rule’ remains “under dispute among scholars” (Ibid), the Court embarks on an examination of the two main legal issues in question: (1) the extent of the exploitation – whether new quarries can be established by the Occupying Power; and (2) the use of the product of exploitation – whether the interests of the local population are being served.

On the first issue, the petitioners claimed that quarrying might be allowed “only on a narrow exception known as ‘the principle of continuity’, to maintain the operation of quarries that existed preceding the occupation, whilst the State argued that such activities are “permitted subject to the principle of reasonableness”, for as long as they are not “damaging to the capital” (paragraph 8). Interestingly, in accepting the State’s arguments, the Court sidesteps the scholarship of Seibel and Dinstein, who hold that the production of minerals is allowed only in existing mines. Instead, the Court bases its conclusion on the work of Zamir on “State Lands in Judea and Samaria [Israel’s name for the West Bank]” – a publication examining the Israel‘s land system in the occupied territory which includes practices of unlawful appropriation of land that is most often allocated for the construction of settlements – where he notes that “there are different opinions as to whether and to what extent said occupier is entitled to develop new mines” (paragraph 8 of the judgment). The Court also cites the American Military Manual, the UK Manual on the Law of Armed Conflict and Canada’s LOAC Manual in affirming that the occupier’s only obligation is to ensure that the natural resources of the occupied territory are not depleted or overused, which is the basis for its conclusion that there is nothing to prevent an Occupying Power from opening new quarries that did not exist preceding the occupation (Ibid).

Having exposed the uncertainty that exists in the interpretation of these provisions, instead of resorting to the widely accepted methods of treaty interpretation (codified in the Vienna Convention on the Law of Treaties), which at the very minimum reflect the object and purpose of the law of occupation, the Court arrives at the conclusion that the position presented by the State is reasonable, without properly questioning its premise. The Court’s conclusion that Israel’s quarrying activities are in line with the ‘usufruct rule’ ignores the fact that the current extent of these activities is bringing about the quarries’ depletion – as officially indicated by the Israeli military government who stated that at the current mining rate the entirety of quarries in Area C would be exhausted in 38 years (paragraph 24 of the Amicus Curiae brief summary). It also ignores the occupier’s obligation “to restore, and ensure, as far as possible, public order and safety”, including the maintenance of normal life in the occupied territory for the benefit of the local population, as per Article 43 of the 1907 Hague Regulations, which requires that the economic activities of the occupied territory be developed on the basis of the will of the local population and for their benefit, as discussed below.

Legal concessions granted to the prolonged occupier

In prelude to its second question concerning the use of the product of exploitation, the Court recalls that due to the “unique circumstances of the Area” and its “prolonged occupation” regard should be had to the “duty to prevent the local economy from collapsing”, which the Court considers to be a facet of the ‘principle of continuity’ (paragraph 8 of the judgment). The Court notes that the application of “the principle of continuity, is a narrow interpretation that is not only unnecessary but might even cause economic stagnation and harm the interests of the Area [Israel’s name for the occupied West Bank]” (Ibid). Mindful of the importance of the “quasi-constitutional framework maxim of the belligerent occupation laws” set out in Article 43 of the 1907 Hague Regulations (Ibid), the Court asserts

“the traditional occupation laws require adjustment to the prolonged duration of the occupation, to the continuity of normal life in the Area and to the sustainability of economic relations between the two authorities – the occupier and the occupied […] This kind of conception supports the adoption of a wide and dynamic view of the duties of the military commander in the Area, which impose upon him, inter alia, the responsibility to ensure the development and growth of the Area in numerous and various fields, including the fields of economic infrastructure and its development” (paragraph 10 of the judgment).

The Court accepts the State’s interpretation of Article 55 as being “reasonable” (Ibid), and claims to conclude on the basis of a gründnorm of the law of occupation enshrined in Article 43 of the 1907 Hague Regulations, that the opening of new quarries in order to maintain relations between Israel and the Palestinian Authority serves the benefit of the local population, since it “does not constitute a depletion of the capital” (paragraph 11 of the judgment). The Court’s understanding of Article 43 ignores the underlying premise of its provisions, which prohibits the occupant from benefiting its own economic, national or social interests, whilst require that its decisions be for the benefit of the local population, and exceptionally for its military needs. As such, the Court’s rationale is based on a disjointed application of the rules of the law of occupation, interpreting Article 55 separately from the limits set by Article 43 – an application of the law that falls short not only of the respective purposes of each of these provisions, but also of the overall object and purpose of the law of occupation, which is the conservation of the fabric of life in the occupied territory.

Whilst the construction of an obligation to ensure the development of the occupied population is a welcomed pronouncement, such actions by the occupier should in all cases cater to the interest of the local population, including their social and economic needs, whilst reinforcing the limits concerning the benefit that the occupier can obtain from its activities in the occupied territory (paragraph 10 of the Amicus Brief summary). This obligation presumes that the occupier is granted only limited discretionary powers to fulfill this obligation, seeing that these are always susceptible to its abuse. In other words, the strengthening of the limitations placed on the occupier’s activities by the law of occupation is the only safeguard against the occupier turning into a political and administrative government in disguise that cannot be expected to genuinely cater to the interests of the local population without taking its own interests into consideration.

On the basis of this “dynamic view” of Article 43, the Court proceeds to accept the legality of the sale of the quarries’ products on the private Israeli market by holding that they contribute to sustaining “relations between the authorities”, i.e. Israel and the Palestinian Authority (paragraph 10 of the judgment). In doing so, the Court construes the economic relations between the authorities, which cater primarily to Israel’s domestic interests and afford no concrete benefit to the Palestinian economy, as a means by which Israel fulfills its obligation to provide for the benefit of the local population. Since the new quarries have already been established and have been operational for a considerable number of years, the Court affirms that their potential closure is bound to cause economic instability in the occupied territory (noting the involvement of Palestinian workers in their operation), which would result in a breach of Israel’s obligations under the law of occupation. Instead, the Court’s judgment states the following,

 “adopting the Petitioner’s strict view might result in the failure of the military commander to perform his duties pursuant to international law. For instance, adopting the stance, according to which under the current circumstances the military commander must cease the operations of the Quarries, might cause harm to existing infrastructures and a shut-down of the industry, which might consequently harm, of all things, the wellbeing of the local population” (paragraph 12 of the judgment).

Interestingly, the Court adopts the position that to remedy an ongoing breach, flowing from the quarries’ current activities, another breach needs to occur. It reaches this conclusion without undertaking a balancing exercise to examine the circumstances of this reality. This logic also seems to justify Israel’s ongoing violation of Article 55 through a broad, concessional interpretation of Article 43 – in other words, whilst exploitation activities exceed the ‘usufruct rule’, they are construed to be for the benefit of the local population and therefore legal. This conclusion ignores an important premise for the application of the law of occupation that assumes the need to respect the will of the local population in the occupied territory so as not to infringe upon their right to self-determination, which can be said to be at least partially suspended while the legitimate sovereign is incapable of exercising effective control and administering the daily life of the occupied territory.

Moreover, the notion of the ‘benefit to the local population’ adopted by the Court clearly includes the benefit of the Israeli settler population in the occupied Palestinian territory by including the use of the quarries’ products for “projects within the Judea and Samaria area” in reference to the cases of Naale and Givat Nili settlements where the Court confirmed that the use of these products in settlements fulfilled the definition of “the benefit of the local population or local needs” (paragraph 12 of the judgment). Thus, the Court’s interpretation of the term “local population”, following its own jurisprudence, includes Israeli settlers, who have been transferred to the occupied territory and maintained there by the Israeli government in clear contravention of international law.[1] Similarly, in a judgment rendered on 6 September 2011, in a case concerning the construction of the Tel-Aviv-Jerusalem train line (the A1 train), the Court upheld a creative interpretation of the notion of ‘the benefit of the local population’ presented by the State – based on an unsubstantiated plan for a train system that would connect Israeli train lines with train lines in the West Bank and Gaza Strip to be constructed in the future – as one of the main arguments for accepting Israel’s requisitioning of private land owned by villages in the occupied territory as being in the interests of the local population (HCJ  281/11 Head of Beit Iksa Village Council v Minister of Defense et al., paragraph 7 (Hebrew)).

The Court’s analysis arrives at the conclusion that the petition should be dismissed. It bases this conclusion on the procedural arguments submitted by the State coupled with an acknowledgement of the current state of affairs created by Israel’s ongoing violations of international law. According to the Court, therefore, it is not only impractical but also counter-intuitive to interfere with the executive power and demand the State’s adherence to what it perceives to be largely unclear, debatable principles of the law of occupation. The Court’s final remarks are presented as follows,

“in light of the common economic interests of both the Israeli and Palestinian parties and the prolonged period of occupation. In that context, it shall be noted that considering the significant delay underlying the petition, in light of the many years during which the Quarries have been operating in their current format and the harm that could be inflicted should the requested remedy be granted, the Petitioner had an especially heavy burden while attempting to establish its arguments. However, it seems to us that the aforementioned array of aspects displays before us a reality that is far more complex than the one presented by the Petitioner and by its strict interpretive stance […] we have found that the State’s revised position in regard to the operation of the Quarries in the Area does not constitute a cause for our intervention therein. The petition is therefore dismissed” (paragraph 13 of the judgment).

The Israeli HCJ and Israel’s administration of Palestinian territory

The interpretation of the ‘usufruct rule’ adopted by the Court effectively dons the Israeli authorities’ exploitation of Palestinian natural resources for benefit of Israel’s private market with a mantle of legality. In doing so, it offers a selective interpretation of the rule by disregarding a fundamental and irreconcilable underlying premise of the law of occupation, which requires that the Occupying Power act in the benefit of the local population. As such, the Quarries judgment recalls the work of Ben-Naftali on the illegality of the territorial regime maintained by Israel in Palestinian territory, which demonstrates that law is implicated in maintaining Israel’s practice of blurring boundaries by unlawfully exercising sovereign rights in territory where it is not a legitimate sovereign by systematically exceeding the limits of the law of occupation.

In exploring the application of international law by the Court, we should not forget the curious context in which the HCJ performs its judicial role; that in which the Israeli government, in particular its Ministry of Foreign Affairs, has consistently rejected the position that Palestinian territory is occupied, whilst the HCJ has applied only the humanitarian provisions of the Geneva Conventions (as opposed to applying the law of belligerent occupation en bloc). As such, the HCJ’s judicial review of the Israeli authorities’ acts has often consisted of so-called ‘dynamic’ interpretations of the law that the Court effectively tailors to the needs of the State. In doing so, whilst the Court appears to be applying international humanitarian law, it is undermining and violating its essential tenets. The Quarries judgment is a case in point for the Court’s practice of deferring to and being an apologist for the executive power. Whilst progressive, innovative interpretations of international law are sometimes necessary and should therefore be welcomed, these must fulfill and be vetted by a set of criteria that includes a guarantee of good faith in the application of the law. The Court’s long-standing practice, in an inherently imbalanced context where the Occupying Power’s national judicial authority receives petitions from the enemy population, arguably affirms its inability to fulfill these criteria.

Further details of the position can be found here.

We will have more substantive commentary on the judgment in the week to follow. For now, however, I’ll just note some key paragraphs in the Court’s judgment: para. 58 (inter-temporal law), para. 60 (state acts may be unlawful but still be acts jure imperii), paras 77-78 (no territorial tort exception to immunity for the acts of the armed forces of a foreign state on the territory of the forum state in times of armed conflict; note the Court’s extensive reliance on domestic judgments and those of the European Court of Human Rights), para. 91 (no exception to state immunity merely because a serious violation of IHL or IHRL is alleged), para. 93 (no conflict between a substantive rule prohibiting certain conduct that has the status of jus cogens and the procedural rule establishing state immunity; therefore, no jus cogens override of immunity), paras. 101-102 (immunity does not depend on the availability of an alternative avenue for redress), para. 108 (because immunity is upheld, no need to examine questions whether individuals are directly entitled to compensation for violation of IHL and whether states may validly waive the claims of their nationals in such cases), para. 119 (immunity from enforcement), paras. 130-132 (jurisdictional immunity in exequatur proceedings).

A long-anticipated judgment, and one in which I think the Court both reached the correct result and did so in a well-reasoned decision – but I’m sure it’ll prove controversial nonetheless.

What legal regime applies to the route through Iranian territorial waters? The ordinary starting point would be that a State may temporarily suspend innocent passage its territorial waters, without discrimination, for essential security reasons (Article 25(3), UN Convention on the Law of the Sea). However, as Hormuz is a strait used for international navigation, Iran lacks that ordinary power.

Under UNCLOS, where a strait is used for international navigation and there is no equally convenient route through open high seas waters, then “all ships and aircraft enjoy the right of transit passage, which shall not be impeded” (Art. 38(1)). This would seem decisively against Iran, but for the fact it is only a signatory to the UN Convention on the Law of the Sea and has never ratified it. The precise legal regime applying to Iran and the Strait of Hormuz is thus open to debate.

Some States, especially the US and UK, contend the UNCLOS regime of unimpeded transit passage is customary international law. The alternative is that outside UNCLOS there is only a customary international law right of non-suspendable innocent passage. The Corfu Channel case established in 1949 that warships, and a fortiori merchant ships, have a right of innocent passage through international straits which the coastal State may not suspend.

It was certainly held under the Corfu Channel case that in a time of heightened tensions Albania would have been entitled to regulate (though not prohibit or effectively nullify) the passage of warships through its waters. (See further the discussion in Churchill and Lowe.) Thus it is clearly arguable that under the non-suspendable innocent passage regime a coastal State retains its right to prevent non-innocent passage by individual foreign vessels; while under the UNCLOS transit passage regime it would lack any such rights of enforcement (though it would retain the right to formally regulate certain matters).

Thus, there is some basis for an argument that Iran could seek to restrictively regulate passage through its territorial sea short of suspending innocent passage – provided that as a matter of custom the Corfu Channel and not the UNCLOS rule applies.

However, in the comments to Sahib Singh’s recent post on Iranian sanctions Dan Joyner raised the question whether Iran could take countermeasures in the Strait in response to illegal interventions against its nuclear programme. Rather than close the Strait, Dan suggested Iran might be justified in seizing and confiscating vessels of the nationality of the States responsible for various illegal interventions against its nuclear programme (presuming these acts could be proven the responsibility of Israel and the United States).

Ordinarily, under the ILC Articles on State Responsibility, countermeasures must:

• be targeted only against the responsible State;
• be preceded by an offer to negotiate;
• consist only of the injured State withholding performance of one or more international obligations owed to the responsible State;
• be proportionate and readily reversible; and
• not involve the use of force.

Technically, seizing individual vessels under Dan’s scenario would not involve closing the Strait. Could it be described as suspending the right of innocent passage of certain targeted States? Perhaps, though I have some (possibly formalistic) qualms about the idea that suspending a freedom from interference can create a positive right to interfere. That aside, would seizing merchant vessels involve a prohibited use of force under the UN Charter? The majority view among scholars would appear to be that such a “police action” is not usually tantamount to a use of force (see e.g. Guyana v. Suriname), though much might depend on how such an interdiction operation was carried out.

The suggestion some vessels could be seized as a countermeasure is thus not implausible, but the real question would be sufficient proof of attribution of the complained of conduct to the targeted States.

Finally, one might note that actually closing the whole of the Strait by force could constitute a blockade of the ports of Kuwait, Qatar, Bahrain, the United Arab Emirates and Iraq. This would appear to be a prima facie act of aggression against these States as the General Assembly’s Definition of Aggression (UNGAR 3314) includes blockade of ports under Article 3(c). Such an act of aggression would, at a minimum, justify Security Council intervention though we could debate what other action might be permissible in such a case.

This is far from a fully developed analysis, so thoughts are welcome. My apologies if my replies to comments are less than timely.

Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.) 

Obligations under the Torture Convention

Canada has been a “party” (and not simply a “signatory” despite journalistic reports) to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1987, and it is this treaty which brought into being the 10-person body known as the Committee Against Torture. Canada is also one of 64 states that has voluntarily declared its acceptance of the Committee’s competence to “receive and consider” complaints from persons alleging to be victims of Convention violations, as set out in article 22. It is the choice of these 64 states to opt-in to an international process for individual complaints, and it is this voluntary opt-in that provides the international legal basis for the consideration of claims made by individuals within the jurisdiction of Canada, including non-nationals, alleging violations of the Torture Convention. Many of the cases lodged against Canada (and against other states) typically arise within an extradition or deportation context and involve the absolute prohibition found in article 3 on sending a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

For many years, Canadian officials took heed of this prohibition, and Canada’s treaty obligations, by waiting for the situation in Rwanda to improve so as to ensure that there would be no real or probable risk of torture were Mugesera to be returned. After six years of evaluation, Canada had decided that there was no risk, with one of the recent flurry of decisions relating to this case indicating that on 6 December 2011, Mugesera received an 80-page decision outlining why the Canadian government believed that he would not face significant risks if returned to Rwanda (see para 4). There is also mention in the judgment of Rwanda having provided assurances, but no copies of these assurances appear to be publicly available. The most recent twist in the saga was a communication lodged with the Committee Against Torture, with media reports suggesting that the Committee has issued a request to halt the deportation, although again no copy is made publicly available and no notice is posted on the Committee’s website.

Interim measures requests

States, in their wisdom and at their choice when drafting the Torture Convention, gave the Committee Against Torture the power to establish its own Rules of Procedure (see article 18(2)), and the Committee has indeed adopted extensive Rules of Procedure to govern its proceedings (UN Doc. CAT/C/3/Rev.5). Buried within these rules is Rule 114(1), which provides that the Committee “may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”

While wrapped in the niceties of diplomatic language, a request for interim measures is essentially a request for a stay of proceedings while a matter is pending for consideration before the Committee. As I have argued in the past: “Similar provisions can be found in the procedural rules for many international courts, commissions, and committees, and so it is hardly surprising that the [Committee Against Torture] would recognize the need for such a rule to protect the interests of the parties and to facilitate the proper conduct of the proceedings pendente lite. (J. Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55 at 66.) It’s clearly not good practice to change the situation as between the parties to a dispute, once that dispute has been lodged with the forum that both parties have agreed to use.

Interim measures requests have a protective purpose, to preserve an individual’s life or physical integrity. They are not issued automatically, as a matter of course, (although this was a criticism made against the Committee Against Torture in the past), and many states do abide by interim measures requests in light of their protective purpose and rationale. A quick review of the Committee’s most recent annual suggests that a case has to be made to secure an interim measures request, with only 24 out of 37 requests for interim measures being granted during the most recent reporting period (para. 89). Moreover, as is made plain in Rule 114(3), a state can provide information to rebut the Committee’s request for interim measures, making a convincing case for no request to be issued, or for an interim measures request to be revoked as a result of further information provided to the Committee by the state.

Canada’s response

In the Mugesera case, rather than publicly rebutting whatever grounds underpin the issuance of the yet-to-be-released interim measures request, by using, for example, the material contained in the 80-page decision mentioned in one recent judgment, or by disclosing a copy of Rwanda’s assurances, Canada’s lawyers have opted instead for a form over substance approach. They argue that interim measures requests carry no legal weight and that a treaty ratified by Canada does not have domestic effect unless transformed into domestic law. I call this “form over substance” since it emphasizes the non-binding nature of what takes place within the UN human rights bodies, rather than focusing on whether there is a substantive risk of torture for Mugesera.

It is also a disappointing response, because in the Canadian case touted for the proposition that interim measures requests are not binding for Canada, known as Ahani v. Canada (Attorney General), counsel for the applicant, the Crown and Amnesty International, failed to draw the court’s attention to the turning-point decision of the Human Rights Committee in Piandiong v. Philippines, holding that an indication of interim measures is effectively binding on a state party. For further discussion of Piandiong’s importance, see Gino J. Naldi, “Interim Measures in the UN Human Rights Committee” (2004) 53:2 ICLQ 445-454. The court also failed to consider the view of the Judicial Committee of the Privy Council in Lewis v. Attorney General of Jamaica, (2000), [2001] 2 AC 50, that individuals must be entitled to a stay of proceedings while a petition is pending for consideration before an international human rights body, even when that body is not a court and does not issue judgments, on the grounds of due process. The non-binding nature of the individual complaints procedure before an international human rights body does not ipso facto make the rules governing that procedure to be non-binding. Otherwise, we could ignore all the procedural rules concerning time limits and replies.

Canada’s response also suggests a lack of nuance in reconciling the domestic with the international, with nuance being necessary to give any of the individual complaints procedures before the various UN human rights treaty bodies any real significance within a state. Canada has also previously stated that it “fully supports the important role mandated to the treaty bodies, such as the Committee Against Torture, and gives careful consideration to the interim measures requests issued by them.” Some indication of that careful consideration would be welcome, rather than resorting to form over substance, particularly since Canada has been warned by the Committee when it previously failed to abide by a previous interim measures request that in voluntarily accepting the Committee’s competence to hear individual complaints, Canada is viewed as having undertaken an obligation to cooperate with the Committee in good faith in applying the procedure (see TPS v. Canada).

Whatever one’s views on the merits of the Mugesera claim, a formalistic disregard for an interim measures request sets a poor example for other states who may wish to follow Canada’s path, notwithstanding a strong substantive case showing a real risk to life or limb for an individual.

Criticism for the treaty bodies

But perhaps this lack of state support for interim measures requests also reveals a need for efforts at the international level, including efforts to tighten the grounds for issuing such requests. At the very least, greater transparency is needed from the human rights treaty bodies in order to judge the information being marshaled in support of an interim measures request. There is, however, the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for the cause. Last year, the European Court of Human Rights acknowledged what it called “an alarming rise in the number of requests for interim measures” (having experienced a 4000% increase in interim measures requests for 2006-2010), and expressed concern about the “risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.” The Court has also issued a practice direction indicating that applications for interim measures must be individuated, fully reasoned, accompanied by all relevant documentation, including the domestic court decisions, and sent in good time before the expected date of removal. Similar guidance could be developed and relied upon at the UN level.

With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.

The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.

Conor McCarthy is Visiting Fellow at the British Institute of International and Comparative Law.

The European Court of Human Rights has handed down its long-awaited judgment in the case of Othman (Abu Qatada) v. the United Kingdom which, despite the initial furore that is likely to surround it in the UK, is also a case of substantial legal significance. The judgment sheds light on the circumstances in which it may be permissible under the ECHR (“the Convention”) to expel an individual to a third state where the use of torture is prevalent on the basis of assurances against torture or ill-treatment. Significantly, the Court also lays down, in emphatic terms, principles as to the permissibility of expelling an individual to face trial in a third state where evidence obtained through torture may be used in trying that person.

The Applicant’s Background

Abu Qatada is a high-profile radical Islamic cleric considered by the United Kingdom to be a threat to its national security and who is sought by Jordanian authorities (and indeed authorities in a number of other countries) in connection with a series of terrorist offences. He arrived in the United Kingdom in 1993 when he was granted asylum, having fled from Jordan where he had been tortured in detention in 1988 and 1990-1991. However, as he is regarded as a threat to national security, the UK has sought to extradite him to Jordan.

Bilateral Assurances on Torture or Ill-Treatment

As regards the question of MOUs or diplomatic assurances, some background is helpful. Following the September 11 attacks in the United States the question of the deportation of terrorist suspects, considered a threat to UK national security, to countries where they may face a risk of torture moved high on the political agenda. In 2001 the UK Foreign and Commonwealth Office advised the government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. However, in 2003 a Government review of the possibility of removing such barriers to removal was conducted and it was proposed that certain key countries, including Jordan, could be approached to determine whether they would be willing and able to provide assurances to guarantee that potential deportees would not be subjected to torture or inhuman and degrading treatment. Following this, the United Kingdom’s Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of Memoranda of Understanding (“MOU”), could be used to enable the deportation of certain individuals from the United Kingdom and in 2003 the British Embassy in Oman were instructed to seek such assurances from the Jordanian government.

Various negotiations ensued and a MOU was agreed between the United Kingdom and Jordan in 2005. On its face, the MOU provided that a receiving state would respect its obligations under international human rights law with regard to the treatment of persons returned under the MOU. In addition, it was specified that if a returned person was detained within three years of his date of return “he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities”. The MOU also specified that the receiving state will not impede consular access to the sending state by a person deported under the MOU.

Torture and the 2005 British-Jordanian Memorandum of Understanding

Addressing the facts of the case the Court found that the arrangements entered into between Jordan and the United Kingdom as part of the MOU did provide sufficient safeguards against torture or inhuman and degrading treatment and that, as a result, Article 3, ECHR would not be violated were the applicant to be deported to Jordan.

In assessing whether the assurances would provide adequate protection for a deported individual the Court held that a “preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever”, but it immediately added that “it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances”. Moreover, applying its previous case law in Saadi v. United Kingdom stated that (paragraph 187):

Assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.

As regards the practice of torture in Jordan, the Court observed that “the picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, ‘widespread and routine’…” (paragraph 191).

However, the existence of a widespread and routine practice of torture did not, the Court found, preclude the United Kingdom from seeking to rely on assurances as to an individual’s treatment to enable that individual’s deportation to that a country where torture was systematically practiced. In particular the Court held (at paragraph 194) that it,

does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government. Instead, the Court considers the United Kingdom and Jordanian Governments have made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon return to Jordan.

It further noted that it has never laid down an “an absolute rule that a State which does not comply with multilateral obligations cannot be relied on to comply with bilateral assurances” (paragraph 193). Thus, the UK was entitled to rely on bilateral assurances from Jordan notwithstanding a systematic failure to comply with its obligations under other binding international instruments including the Convention Against Torture. Failure to adhere to such obligations was merely a factor to be considered in the mix in assessing whether assurances provide sufficient protection. After all, the Court held, “it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them”.

This position appears to contrast with that advocated by the UN Committee Against Torture which, in its 2006 concluding observations on the United States of America, recommended that diplomatic assurances should only be relied upon with regard to States which do not systematically violate UN CAT’s provisions. Indeed, given that the ECHR itself found that torture was a “widespread and routine” practice in Jordan and that, notwithstanding this, weight could still be placed on Jordanian assurances, it is hard to envisage a case where no weight, however, slight could be placed on the assurances of a state even one whose officials consistently or systematically violated the prohibition on torture. This is likely to be regarded as a controversial aspect of the Court’s judgment.

Nevertheless, it was against the backdrop of widespread and routine torture found to take place in Jordan that the Court considered whether the assurances contained in the MOU provided sufficient safeguards that that applicant would not face treatment incompatible with Article 3 should he be returned. The Court held that assurances must be viewed in the context in which they were given, noting (i) the strength of the bilateral relationship between the UK and Jordan (ii) the importance of the MOU to that relationship (iii) that the assurances were provided at the highest levels of the Jordanian government by individuals with power to bind that government, having the express approval of the Jordanian King. Furthermore, the Court found that the applicant’s high profile meant it was more likely that Jordanian authorities would be careful in how he was treated. The Court was not, however, entirely uncritical of the MOU noting that “it would have been considerably strengthened if it had contained a requirement that the applicant be brought within a short, defined period after his arrest before a civilian judge, as opposed to a military prosecutor”, given the risk of ill treatment during the first days of a detainee’s imprisonment. Despite this criticism on the basis of all of the factors identified above the Court was satisfied that the assurances from Jordan provided adequate protection for the applicant and that, if deported, he would not face treatment incompatible with Article 3, ECHR.

Extradition, Torture and the Concept of the “Flagrant Denial of Justice”

The aspect of the judgment of the greatest legal moment concerns the development it represented in the Court’s jurisprudence regarding the permissibility of extraditing an individual to face trial in circumstances where evidence may be adduced that has been obtained through torture. It has been an established, if as yet conceptually under-developed aspect of the case law of the ECtHR, that the Article 6 right to a fair trial may be violated where an individual being extradited risks facing a trial constituting a “flagrant denial of justice”. The Court’s jurisprudence on this issue dates back to the famous case of Soering v. the United Kingdom. However, in the 22 years since Soering v. United Kingdom the Court has never found that an expulsion would violate Article 6. Othman (Abu Qatada) v. the United Kingdom gave the Court a valuable opportunity to develop more fully its jurisprudence on the question of what constitutes a “flagrant denial of justice”. The Court held that the term is synonymous with a trial process which is “manifestly contrary to the provisions of Article 6 or the principles embodied therein”. Of concern here were not mere procedural flaws or defects but a matter going to the heart of the right to a fair trial.

The use of evidence obtained by torture, the Court emphatically held, was such a matter. Adopting language of remarkable force (in the broad scheme of judicial pronouncements by the ECtHR) the Court held (at paragraph 267) that:

The Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

As regards the use of evidence obtained through inhuman and degrading treatment, although it did not decide the point, the Court did “not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture”.

Concluding Comments

The Othman case was not an easy one for the Court, not least given the wider political backdrop in the United Kingdom of the ongoing, high-profile (and at times stultifying) debate concerning the role of the ECHR in the United Kingdom’s domestic legal system. It is also a case in which some very difficult ethical and moral questions underpinned the various legal principles in play. For the different sides of the debate on the prevention of torture and the use to which its progeny may be put the decision is mixed. For the Government, it is clear that there are now few countries, however bad their human rights record may be, which are so bad that assurances cannot be sought to enable deportation, subject to sufficiently rigorous safeguards being put in place to prevent ill-treatment. This approach is perhaps not altogether surprising given the Court’s previous jurisprudence on the issue. The greater significance in the judgment is perhaps that for the first time in 22 years, since the landmark case of Soering v. the United Kingdom, the Court has held that the expulsion of an individual would violate Article 6 of the Convention. It remains to be seen whether, if the case goes before the Grand Chamber of the Court, the findings of the Chamber will be left undisturbed. But as things stand the judgment may well come to be seen as a milestone in the development of the Court’s jurisprudence on torture. Time will tell.

• the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
• indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
• the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
• the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
• the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
• the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
• the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
• also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
• finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.