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Home Archive for category "EJIL Analysis" (Page 2)

The Bottom Line of Jaloud

Published on November 26, 2014        Author: 

Following up on Aurel’s post on the Jaloud v. Netherlands case, I want to add a few brief thoughts regarding the bottom line of the judgment and what it means for the overseas military operations of European states.

First, Jaloud confirms the general trend in the European Court’s case law towards a more expansive approach to the extraterritorial application of the ECHR. Whether you think an expansive approach is a good idea or not, the trend is there, since the normative pull of universality is hard to resist, and as the Court becomes increasingly more familiar with applying the Convention to extraordinary situations. I personally feel that the judgment is correct in its basic approach to extraterritoriality, even if there is some conceptual confusion between various questions of jurisdiction and attribution, on which I will write separately. But the basic message to states is this: trying to exploit the many contradictions in the Court’s case law on extraterritoriality to deny the applicability of the Convention in this case or that will in most circumstances end in defeat. Rather than fighting a losing battle, states should focus their energies on arguments on the merits on which they are more likely to win.

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

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Patrick Robinson of Jamaica Elected to the ICJ

Published on November 18, 2014        Author: 

Judge RobinsonLast week, I wrote about the elections held last Monday, by the United Nations General Assembly and Security Council, to fill 5 upcoming vacancies on the International Court of Justice  As I reported, both bodies were able to agree on the election of four judges, but were unable to agree on the filling of the fifth vacancy. In several rounds of balloting over two days, Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) consistently received a majority in the General Assembly However, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in the Security Council. On Tuesday last week, as noted by Ambassador (and Professor)Kriangsak Kittichaisaree in his comments to my previous post , Argentina withdrew the candidacy of Susana Ruiz Cerutti.

Yesterday, the General Assembly and the Security Council, again meeting separately but concurrently, elected Patrick Robinson as Judge of the ICJ. He obtained all 15 votes in the Security Council and 185 votes in the General Assembly. As previously noted by Ambassador Kittichaisaree in his comments to my previous post , the election of Judge Robinson means that 4 out of the 5 judges elected or reelected to the ICJ, in this election cycle, are or were members of the International Law Commission. By my calculation practically half of the judges of the ICJ (in its new composition starting in February 2015) will have been members off the ILC prior to election to the ICJ.  Judge Robinson’s elections also adds to the growing number of ICJ judges with prior international judicial experience – a trend that I noted three years ago (here and here).

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The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

Published on November 12, 2014        Author: 

As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

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The United States and the Torture Convention: A Memo from Harold Koh

Published on November 11, 2014        Author: 

On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Read the rest of this entry…

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ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!

Published on November 10, 2014        Author: 

Last week Thursday (Nov. 6), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see ICJ Press Release). Judges Mohamed Bennouna (Morocco) and Joan E. Donoghue (United States of America) were re-elected to the Court. In addition, Professor James Crawford (Australia) and Kirill Gevorgian (Russian Federation) were elected as new members of the Court. There are five vacancies on the International Court of Justice every 3 years, including this year. However, for the second time in a row in regular elections for judges at the ICJ, the two organs of the UN charged with electing the judges have been unable to agree, at least initially, on the list of judges elected to the Court (arguably, the third time in a row if one includes the situation in the 2008 elections described below). This year, as was the case in the last regular elections in 2011 (on which see previous posts here and here), the two organs have suspended voting until a later date, after several rounds of balloting in each organ failed to produce a fifth candidate that was elected by absolute majority of both organs (see UN Press Releases here and here). The General Assembly and the Security Council will meet on November 17 to resume voting.

Under Articles 4, 8 and 10 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of the General Assembly and the Security Council. An absolute majority in the Security Council for the purpose of elections to the ICJ has been interpreted in practice as meaning eight votes, rather than the nine required for other Council decisions (see Opinion of the UN Office of Legal Affairs 1984 Juridical Yearbook 173, at 175, para. 8, also available here). Also, under Article 10(2) of the Statute, no distinction is drawn between permanent and non-permanent members (i.e there is no veto).  The two organs meet separately, but concurrently, to conduct ICJ elections. Once five have obtained an absolute majority in one organ, the President of that organ will notify the President of the other organ of the names those candidates. Although each state member can only cast 5 votes in each organ it is mathematically possible, and in fact often happens, that more than five candidates will obtain an absolute majority in one organ. [For example, there 75  votes available in the SC – 15 states  x 5 votes each. If there are 7 candidates who only need 8 votes each, all 7 can obtain 8 votes, which only totals 56 of the available votes.]  It is the practice of both organs that only when five candidates have obtained an absolute majority is the result to be communicated to another organ. A proposal to select the five with the highest votes was previously rejected in the practice of both organs  [see Hogan, “The Ammoun Case and the Election of Judges to the International Court of Justice”, (1965) 59 American Journal of International Law 908]. When 6 or more candidates obtain a majority, the ballot is rerun with all candidates.

In the elections held on Thursday Nov 6, the General Assembly conducted seven rounds of balloting and it was only in the seventh round that only 5 candidates obtained an absolute majority with Patrick Robinson from Jamaica (currently a Judge and former President of the International Criminal Tribunal for the former Yugoslavia) receiving an absolute majority, in addition to the four other candidates mentioned above. However, in the Security Council, where four rounds of voting took place on Thursday until only five candidates received a majority of votes, it was Susana Ruiz Cerutti, the current Legal Adviser to the Ministry of Foreign Affairs of Argentina and former Foreign Minister of that country, who obtained a majority in addition to the four candidates named in the first paragraph. In the seventh round of voting in the GA, she obtained only 2 votes less than the majority required in that body, while Mr Robinson received only 1 vote less than required for a majority in the Security Council. Read the rest of this entry…

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Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Published on November 7, 2014        Author: 

International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer. Unfortunately, before domestic courts, that is not always the case. Late last month, the Canadian Supreme Court issued its judgment in Kazemi Estate v. Islamic Republic of Iran [2014] SCC 62 (the Quebec Superior Court Judgment was discussed on the blog here). The case, following on the Ontario Court of Appeal’s earlier judgment in Bouzari, serves as a stark reminder that the application of international legal principles in domestic proceedings will frequently be governed or mediated by domestic legislation, which often reflects domestic priorities in addition to international principles. The role that international law should play in such cases, as either a source or a means of interpretation, may be contested. The Kazemi v Iran Judgment is the latest instalment in a series of important domestic court decisions on the law of State immunity.

Background

Ms. Zahra Kazemi was a Canadian citizen and freelance photographer and journalist who died in custody in Iran in 2003, following her detention, torture and sexual assault in prison The authorities refused to return her body to Canada and buried her in Iran. Although a domestic investigation reported links between the Iranian authorities and her torture and death, only one person was charged and he was acquitted after a trial which lacked transparency.

Seeking justice for his mother’s death, Ms. Kazemi’s son, Mr. Stephan Hashemi, sued the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei (Iran’s Head of State), Mr. Mortazavi (Chief Public Prosecutor of Tehran), and Mr. Bakhshi (former Deputy Chief of Intelligence at the prison where Ms. Kazemi was detained), claiming damages for his mother’s suffering and death, and for the emotional and psychological harm that this caused him. Predictably, the defendants sought to dismiss the motion based on claims of state immunity, which is implemented in Canada by the State Immunity Act (SIA). This challenge ultimately reached the Supreme Court of Canada, Read the rest of this entry…

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English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims

Published on November 3, 2014        Author: 

Following a number of high profile but ultimately failed inquiries into the UK’s ‘complicity’ in US extraordinary rendition, some further light may be shed on the matter by the UK courts. Such is the significance of the judgment given last week by the English Court of Appeal in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, which reversed the decision of Simon J to strike out claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials for their alleged involvement in their unlawful abduction, detention and renditions. The claimants alleged that they were unlawfully detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, by agents of those states. Documents uncovered after the fall of Gaddafi allegedly show the complicity of UK officials in the kidnap of Belhaj and his then pregnant wife, Boudchar, and their rendition back to Libya. In a thorough and careful judgment, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) held that the claims are not barred by state immunity and, while they did engage the act of state doctrine, the claims fell within the public policy limitation applicable in cases of violation of international law and fundamental rights.

Permission to appeal to the Supreme Court has been granted only in relation to the act of state doctrine. Whatever the Supreme Court decides to do, this judgment marks another bold stand for the rule of law in the context of events arising from the so-called global war on terror, as well as providing further clarification on the scope of both doctrines.

State immunity: indirect impleader

Seemingly emboldened by the recent decision of the European Court of Justice in Jones v the United Kingdom, the Respondents sought to argue that state immunity may be invoked where, as in the present case, the claims necessarily require findings of illegality in respect of the acts of foreign officials for which they could claim immunity if they had been sued directly. It was argued that the claims indirectly implead the states concerned because they affect their interests and that, accordingly, state immunity applies to bar the claims.

Interestingly, the Respondents sought to derive support for this submission from the reference to both “rights” and “interests” in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of State and their Property, which they argued has the effect that a state is indirectly impleaded where its interests are affected in a broad sense. In its judgment, the Court cited academic commentary in support of the contention that the final words of Article 6(2)(b) should be given a limited reading, such that “interests” of states is confined to legal interests as opposed to interests in some more general sense Read the rest of this entry…

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The Naked Rambler in the European Court

Published on October 30, 2014        Author: 

Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.

This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).

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