Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

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On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). Earlier that day, the British Foreign Secretary, William Hague, told BBC1`s Andrew Marr Show:

‘[...] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it`s very clear where we stand on, on his status as a head of state.’

William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.

The revocation of personal immunity and, even more so, the withdrawal of recognition from a serving head of State who continues to control substantial parts of the foreign State`s territory would seem an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.

Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.

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Yesterday the UN Security Council unanimously adopted Resolution 1970, whereby it (1) imposed an arms embargo on Lybia; (2) imposed targeted sanctions, including travel bans and asset freezes, on high-level persons in the Lybian regime; (3) and referred the situation in Lybia to the International Criminal Court. This is the second UNSC referral to the ICC, the first after Darfur and the first to be passed unanimously. The full text of the resolution is available here, and a UN press release can be found here.

The resolution also makes several notable findings, such as that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’; it also requests Lybia to respect both human rights and IHL, which indicates that the UNSC considers there to be an armed conflict in Lybia, and that IHL and human rights apply in a complementary fashion (this is of course not the first time that the Council has said something similar).  Notably with regard to the ICC referral, as with Darfur the resolution does not expressly say that Gaddafi will not be entitled to head of state immunity (assuming that the ‘head of the revolution’ is indeed a head of state under international law), even though that inference may be reasonably drawn – that issue might of course become moot if Gaddafi is actually toppled, which is perhaps more likely than not.

As for the targeted sanctions regime, like with the terrorist sanctions regime before it there is very little here with regard to guarantees of due process for the listed persons. Will the Gaddafis, led perhaps by LSE-PhD holding Saif (who may or may not had plagiarized his PhD on human rights and global governance), follow the bright example of the late Saddam Hussein and file an application with the European Court of Human Rights to protect their (presumable) Swiss millions? Bearing in mind the manifest deficit in the dictatorial psyche when it comes to self-irony, I wouldn’t put it past them.

Stefan Talmon is Professor of Public International Law at the University of Oxford.

A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’

French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.

Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO  or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.

Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?

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Editor’s Note:  The authors have recently launched a blog focussing primarily on issues of international criminal justice from an African perspective. See http://warandlaw.blogspot.com

According to media reports , the Kenyan government is redoubling its misguided efforts to persuade the UN Security Council to suspend the ICC Prosecutor’s investigation into the 2008 post-electoral violence. As we have noted before, the request is fundamentally flawed. Not only does it misinterpret both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council (a highly unlikely prospect) will be temporary – article 16 requires the annual renewal of any deferral – whereas the proper exercise of complementarity would offer a permanent solution to Kenya’s concerns (on the assumption that it is truly willing and able to prosecute the offenders domestically).

Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request. (more…)

Today the Appeals Chamber of the Special Tribunal for Lebanon delivered an interlocutory decision on several points of applicable law before the Tribunal. It has essentially done so in an advisory fashion, at the request of the pre-trial judge, in order to provide him with adequate guidance with respect to 15 questions of law. In other words, the Appeals Chamber rendered this decision without actually having a concrete case before it, after having heard the submissions of the prosecution and the defense office on the legal issues in question. The 150-page decision is available here; a summary read out by President Cassese is available here.

This is an incredibly rich decision – if you will (and appropriately enough bearing in mind Judge Cassese’s involvement), the STL’s Tadic. I am sure that it will provoke much discussion, and not a little bit of controversy. I had so far only given the decision a very quick skim, but let me try to point out some of the most interesting developments.

The Appeals Chamber held, inter alia, that customary international law now recognizes a distinct crime of terrorism in peacetime. Notably, the Chamber held not only that a customary rule exists between states that they need to suppress terrorist crimes, but that a customary rule applicable to individuals has evolved, directly creating a true international crime. This is of course a position that Judge Cassese has been advocating for some time extra-curially – see e.g. his International Criminal Law textbook. That position is however controversial to say the least – see e.g. the textbook by Cryer et al, 2nd ed., at p. 338 ff. Now, note that the STL is actually bound by its Statute to apply Lebanese substantive criminal law, and its own definition of terrorism (on which the Chamber has several things to say); to that extent whether or not customary international law recognizes a distinct crime of terrorism is beside the point. Its only relevance is that the Chamber has held that in cases of doubt it will interpret Lebanese law so that it conforms with international law, but it was hardly necessary for it to reach the very ‘activist’ conclusion that terrorism has now become a true international crime, like genocide, crimes against humanity and war crimes. Whether the Chamber’s analysis of the relevant state practice and opinio juris is to be considered persuasive outside the STL remains to be seen.

Several years ago, I published an article in the JICJ in which I anticipated another problem which the Chamber had to deal with today. Namely, while the STL Statute provides that the only body of applicable law is Lebanese law, it at the same time allows the application of uniquely international forms of individual criminal responsibility, namely common purpose (or joint criminal enterprise, particularly its third or extended type) and command responsibility. I argued that applying these forms responsibility to the individuals accused of assassinating Hariri would violate the principle of legality, nullum crimen sine lege, as it would allow for the punishment of individuals who could not be punished under Lebanese law, the only relevant body of substantive law. Before the Appeals Chamber, the defense office developed this legality argument in great detail, while the prosecution argued that under the plain language of the Statute it could rely on international forms of responsibility in all circumstances.

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Irini Papanicolopulu is Marie Curie Fellow, Faculty of Law, University of Oxford and a Senior Researcher in international law at the University of Milano-Bicocca (on leave).

On 20 December 2010, Mauritius initiated proceedings against the United Kingdom under the dispute settlement provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (see report here). The dispute, to be submitted to an arbitral tribunal (since both States have opted for different dispute settlement methods under UNCLOS), concerns the creation by the United Kingdom of a marine protected area (MPA) up to the outer limit of the exclusive economic zone of the Chagos Archipelago. According to the notification and statement of claim,

Mauritius requests the Annex VII arbitral tribunal to declare, in accordance with the provisions of UNCLOS and the applicable rules of international law not incompatible with the Convention that, in respect of the Chagos Archipelago:

The ‘MPA’ is not compatible with the 1982 Convention, and is without legal effect; and/or

The United Kingdom is not a ‘coastal state’ within the meaning of the 1982 Convention and is not competent to establish the ‘MPA’; and/or

Only Mauritius is entitled to declare an exclusive economic zone under Part V of the 1982 Convention within which a marine protected area might be declared.

Background to the dispute

The Chagos Archipelago, situated in the Indian Ocean, consists of some 65 islands for a total of approximately 60 sq km, generating marine areas that cover 54,400 sq km of ocean; the biggest island, Diego Garcia, has a surface of 44 sq km (see here and here). Formerly under UK colonial rule, since 1965 the Chagos Archipelago forms the British Indian Ocean Territory (BIOT). In the period 1967-1973 the inhabitants of the islands were forcibly displaced to Mauritius, Seychelles and the United Kingdom and were prevented from returning to the archipelago. This forced removal has been challenged before the courts of the United Kingdom and the United States and a case is now pending before the European Court of Human Rights. (more…)

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law at the School of Law, University of Edinburgh .

 Editor’s Note: This post is a response to a previous post by Timothy Waters: “Let his People Go: Sudan’s Lesson for Secession” which comments on the implications for international law of the recent referendum in Southern Sudan on independence.

The notion that the right of self-determination embraces a legitimate claim to independent statehood seemed to have fallen into desuetude with a decolonisation process that was largely completed by the 1970s. Despite (or more probably because) of this, the feasibility of a new right, generated from first principles, caught the eye of moral philosophers who, particularly in the 1990s, debated how such an entitlement might be based upon demotic integrity (e.g. Harry Beran) or some kind of remedial principle (e.g. Allen Buchanan). For international lawyers, of course, this mode of reasoning is so unrealistic as to be unhelpful for a range of reasons. But it does seem that a strict dichotomy between the redundancy of self-determination in legal terms and the renewed interest in the principle at the political/normative level is not the whole story. As we reflect on the two decades of international response to the ‘new nationalism’ since Slovenia’s referendum on independence from the SFRY in December 1990, there have been subtle but important shifts in how the ‘international community’ has responded to statehood claims presented by sub-state territories. In this time we have seen how the impetus for such change at the local level can build international support, how particularly in light of violent conflagrations which pose threats to peace and security international intervention can focus not simply on security problems but also on their underlying constitutional causes of these threats, and how the subsequent structure of response by powerful states has in certain cases facilitated moves towards statehood.

 There are many angles to this shift in direction, but I would like to focus briefly on the use of the referendum – applied most recently in Sudan – as a particularly illuminating feature of this change in structural response. First, the referendum has emerged as one of the gateways to a new, normative-rich set of recognition criteria. (more…)

Max Du Plessis is associate professor at the University of KwaZulu-Natal and Senior Research Associate at the International Crimes in Africa Programme of the Institute for Security Studies. Chris Gevers is a lecturer at the Faculty of Law at the University of KwaZulu-Natal.

Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.

Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year (see here). The profile of the “O’Campo Six” has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the “father of the nation”.

The latest move by prosecutor Luis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings (see here), the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate “as the special envoy of the p resident of the Republic of Kenya”.

Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as South Africa (SA), Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.

This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such.

Second , it is unlikely to succeed within the security council. (more…)

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

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

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

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

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

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

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

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