Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.

As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.

In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.

The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244.

According to Marko’s illuminative post, these two approaches are exemplary of conceptual differences about state-formation. The latter approach is essentially triadic: it divides the conceptual space of state-formation among prohibitions (use of force), permissions (‘external’ self-determination, remedial or not), and a grey middle ground: the universe of unique cases on which international law is largely silent. The former is binary: what is not expressly permitted (external self-determination) is prohibited (territorial integrity of the states).

However, there was, I think, a third strategy which could have blurred the distinction between binary and triadic approaches to state-formation. The Court could have ‘applied’ self-determination but only as one component in the act of balancing a unique set of factors. For example, in Marti Koskenniemi’s oral submission, the Kosovo case requires “neither mechanical rule application, nor recourse to an exception, or indeed politics, but … the application of the relevant legal principles—including those of territorial integrity and self-determination—in a way that is equitable in the circumstances”. (para. 17, Oral Statement, Finland) Such an equitable approach, according to Koskenniemi, would dovetail the only historically accurate account of self-determination which, throughout its history, has been nothing but a remedial concept. Self-determination, Koskenniemi said, “always implied the possibility of secession in case the parent State is unable or unwilling to give guarantees of effective protection.”[1](para. 23, ibid.)

Extrapolating from Koskenniemi, self-determination has always been implicated in state-formation either as a compossible claim-right to external self-determination, or as a prima facie right (a principle), which serves as an ‘optimization requirement’, to borrow from Robert Alexy, and which always requires balancing in the grey zone of unique cases. While following this tack would have given the Court an opportunity to say something about the applicability of self-determination in the post-Cold War world, this avenue would not be without peril. It would have required the Court to say what exactly is ‘self-determinationy’ about self-determination.

It is becoming increasingly difficult to ignore this question. Even if we disagree with Koskenniemi about the normative ubiquity of self-determination, we would still need to spell out the salient moral ‘X’ factor in the ‘unique combination of factors’ that justifies secession in the gray zone, according to the triadic model mentioned above. One factor is, obviously, absence of the use of force. The reason behind the Security Council’s rejection of the UDI of Republika Srpska, for example, was not, according to the Court in this Advisory Opinion, because of the UDI per se, but because it was connected with violations of jus cogens. But, absence of the use of force is surely not enough. Would a so-called failed state be a legitimate object for annexation by a benevolent external power? Could this benevolent external power carve out several new units from such a state, and install a string of benevolent autocrats to govern their docile populations? I am not sure, but it seems that there would be nothing wrong with such scenarios in the grey zone unless one of the factors was something akin to self-determination stricto sensu. In the lead up to the UDI, several diplomats argued that the will of the vast majority of Kosovo’s population is one of those unique factors. Is the will of (the majority of) the people, that what is left of right to external self-determination? I won’t pursue this question here except to say that there is a need for popular consultation, or a majority vote ultimately will not suffice because it, through the use of a conceptual tool—the people—obfuscates the normative ideal that stands behind demands for popular will.

The Court addressed the decisions of ‘the people of Kosovo’ only in the section of the Opinion that deals with the identity of the author of the UDI. The Court argued that the body that adopted the UDI was not ultra vires because it did not act as a Provisional Institution of Self-Government. Rather, “the Court considers that the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order.” (para 105, Advisory Opinion). The Court stated that “the authors of the declaration of independence [acted] as persons … in their capacity as representatives of the people of Kosovo outside the framework of the interim administration” (para109, Advisory Opinion).

How relevant is this late appearing, seemingly off-the-cuff remark about the signatories of the Declaration being the representatives of the people? To what extent would it damage other parts of the Court’s reasoning had they been envoys from the Planet Zoltar, declaring Kosovo independent? While the Court here flirts with the ideas of popular sovereignty and pouvoir constituant it does not—I think wisely—couch the argument in these terms. Several states, in their oral submissions credited the UDI as an act of the constituent power of the Kosovo people, which of course, is question-begging. ‘Kosovo people’ is a construct, owing its existence either to UN Resolution 1244, or to the Serbian constitutional order, or both. But, to speak of the pouvoir constituant of that people, would smuggle back in the question of self-determination and the inconvenient problem of its legitimate bearer. It would bring back the gamut of questions about the legitimacy of administrative boundaries, and the axiomatic way in which the Contact Group imposed them as inviolable in the case of Kosovo. Finally, it would have forced the Court to engage in some inconvenient backpedalling from the Opinions of the Badinter Committee nearly two decades ago.

From the perspective of constitutional theory, however, the decision of the group of individuals who declared Kosovo independent can indeed be seen as an act of constituent power. According to legal philosopher Hans Lindhal, “all exercise of constituent power, necessarily involves a self-mandating act, whereby a political actor claims to represent a community [‘our people’ in the verbiage of the Kosovo Declaration] without having received prior authorization to that effect”.[2] Lindahl claims that the act of the constituent power is an act of transgression, which “ultimately points to the capacity to commence things”.[3] However, Lindhal goes on to point out that the fact that “no community can establish itself without a representation of unity, yet the representation of unity, although transformable to a certain extent, also guarantees that no community succeeds in establishing itself definitely”.[4] Finally, the act of constituent power must be “taken up”; “normative innovation must catch on”.[5] For Lindahl, “whether or not the exercise of constituent power is successful, can only be determined retrospectively”.[6] In other words, we can only objectively identify constituent power after the fact; it is impossible to do so in the moment of invocation.

With this in mind let me say something about the separate and dissenting opinions. While I am sympathetic to Judge Yusuf’s complaint that the phrasing of the question was unduly narrow, he is wrong to attribute the UDI to “the representatives of the people of Kosovo [whose it was to] aim of establish[] such a new State without the consent of the parent State.” (para 2. Separate Opinion, Yusuf). If Lindahl’s theoretical insight above is correct, it can only mean that the act of men and women voting for UDI was an attempted ‘pull-off’—ontologically inevitable posturing, but still posturing—which, only in retrospect, (if it ‘caught on’), can be considered as an act of the ‘people of Kosovo’.  Yusuf is also probably too optimistic in his claim that an assessment by the Court of the existence of a [self-determination] entitlement could have brought clarity to the scope and legal content of the right of self-determination, in its post-colonial conception” and that in doing so, it could have contributed “to the prevention of the misuse of this important right by groups promoting ethnic and tribal divisions within existing States.” (para. 5, Separate Opinion, Yusuf). As it now stands, however, an implication of the Court’s attitude towards Kosovo’s UDI is that there would be nothing illegal or immoral in recursive mini-UDIs on behalf of the municipal pouvoir constituants in Kosovo itself, most notably in the region north of the Ibar River. To define the conditions under which the norm of self-determination is triggered (gross oppression), and to say who is the bearer of that right (Kosovo Albanians) implies nothing about precisely how to draw boundaries around the aggrieved group. One can of course paper over this problem by pretending that the oppression of a section of the population—most likely an ethnic or religious group—and oppression of the population as a whole are the same thing. For Judge Cancao Trinidade, “what has happened in Kosovo is that the victimized “people” or “population” has sought independence, in reaction against systematic and long-lasting terror and oppression, perpetrated in flagrant breach of the fundamental principle of equality and non-discrimination” (para 176. Separate Opinion, Trinidade). If the price for avoiding such category mistakes is a narrow reading of the question posed here, I think it is a price worth paying.

Judge Simma joins complaints about the absence of a treatment of remedial self-determination, adding an interesting argument that,  “[n]one other than the authors of the declaration of independence make reference to the “will of [their] people” in operative paragraph 1 thereof, which is a fairly clear reference to their purported exercise of self-determination.” (para 6, Declaration of Judge Simma). I wouldn’t be so sure. If they thought they were declaring their independence based on the right to self-determination, why didn’t they say so? Compare the wording of Kosovo’s UDI with the Croatian and Slovenian UDIs from 1991. The Croatian declaration begins with reference to the “inalienable, inconsumable, indivisible and untransferable right of the Croatian nation” to self-determination.  (Trifunovska, 1994: 299) The Slovenian declaration, in a similar vein, justifies Slovenian independence “on the basis of the right of the Slovene nation to self-determination, on the principles of international law…” (Trifunovska, 1994: 286). Contra Simma, Kosovo Albanians might have been (well) advised not to make a big fuss out of self-determination in their constitutive documents precisely to avoid attracting judicial scrutiny to this issue which would have raised the question of boundaries, and the right’s legitimate bearer. In contrast to such a scenario, the Court’s minimalist judgment brought them an important political victory.

[1] Ibid. para 24, at 64.

[2]      Hans Lindahl, “Acquiring a Community: The Acquis and the Institution of European Legal Order”  (2003) 9:4 European Law Journal, 441.

[3]      Ibid.

[4]      Ibid. at 447.

[5]      Ibid. at 441.

[6]      Ibid. at 442.

“The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. Accordingly, the Court does not consider that it is necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition in order to answer the question put by the General Assembly.” (para. 51)

Furthermore in answering the narrow question as to whether or not the declaration was in accordance with internationa law, the Court took the view that all it had to do was decide whether or not the declaration was prohibited by international law. In its view, it was not called upon to decide whether Kosovo had a right or entitlement to declare independence. This mean that issues to do with self-determination and whether there was a right of minorities to “remedial seccession” were not addressed by the Court . The Court contrasted the question before it with the question that the Canadian Supreme Court was asked in the Reference Re Secession of Quebec Case (1998): 

“The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act - such as a unilateral declaration of independence - not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.” (para. 56)

In his Separate Opinion, Judge Simma took issue with the position of the Court that saying that the declaration was not prohibited by international law meant that it was in accordance with international law. He thinks this approach follows from a narrrow consensualist approach to international law derived from the Lotus case (what is not prohibited is permitted) and that the court ought to have addressed whether the declaration was permitted by international law. Judge Simma is right in that saying that the declaration is not prohibited only gives a partial answer to the question whether the declaration is “in accordance” with international law. If international law actually expressly permitted the declaration (or provided a right to independence) that would be relevant in saying the declaration was “in accordance with international law”. Also, it is logically possible for international law neither to prohibit nor to permit declarations of independence. Indeed, the answer given by the Court does not imply that internatioanl law permits declarations of independence in these sorts of situations.

The Court considered the legality of the declaration of independence from three perspectives:

• whether it was prohibited by general international law;
• whether it was prohibited by Security Council Resolution 1244;
• and whether it was prohibited by regulations of the United Nations Mission in Kosovo (UNMIK), in particular the Consitutional Framework  adopted by UNMIK.

The Court held that neither of these three bodies of law prohibited the declaration. According to it there was no practice in general international law which allowed it to draw the conclusion that declarations of independence are prohibited. The opinion contains interesting statements about the interpretation of Security Council resolutions. In its view Res 1244 was concerned with creating an interim regime for Kosovo and not with dealing with a final settlement of Kosovo’s situation. Also, though the Court appeared to accept that the Security Council can in principle create binding obligations for non-State actors, it held that 1244 was not addressed to the Kosovo Albanian leadership.

The Court’s conclusions that (i) the declaration of independence were not issued by the institutions of self government for Kosovo in that capacity and (ii) that the UNMIK regulations formed part of international law may prove to be some of the most controversial parts of the opinion. The latter point was disputed by Judge Yusuf. I will need to think more about this but the reasoning of the Court does not appear to me to be particularly strong. The reason why the court was so keen to make point (i) above was because of its holding on point (ii). If the Court had found that the UNMIK Constitutional Framework was not part of international law then it would not have needed to engage in what apppares to have been a strained conclusion that the authors of the declaration happened to be members of te Kosovo Assembly, the President and government of Kosovo but that these persons were not acting in their capacity as the institutions of government of Kosovo. On point (ii), it seems to me that because the legal basis for UNMIK regulations are to be found in a UNSC resolution it does not necessarily follow that those instruments are part of international law – afterall they are intended to take effect only within a particular domestic system of law. 

 Relevant Posts:

http://www.ejiltalk.org/kosovo-advisory-opinion-preview/

Editor’s Note: This is a featured post. Newer posts, including those in our online symposium on The Constitutionalization of International Law, appear below

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosovo case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. It is meant to be structured in such a way to help the reader to better understand where the Court is coming from once it hands down its much anticipated opinion, and I hope that it will prove helpful. But, before that:

A massive disclaimer: I have had the immense honour and privilege to work as an advisor to the Serbian legal team. I am therefore at least doubly biased, since I am both a Serb and was paid to be one, and this post might reflect that bias despite my best efforts. That notwithstanding, this post is based on my opinions and my opinions alone, and does not in any way, shape or form reflect the position of the Serbian legal team. And when I say ‘opinions,’ I will do my best merely to explain the various lines of argument and the options before the Court as objectively as possible, rather than advocate for some of them. I will likewise deliberately say nothing on the possible practical consequences of the Court’s ruling, nor comment in any way on the broader political context. Finally, I would truly very much appreciate it if anyone citing this post in whatever fashion did NOT refer in doing so to my role within the Serbian legal team, as again this post is written solely in my personal capacity.

Further technical note: the written pleadings in the case are available here, and the oral pleadings here. In describing the various arguments, I will generally refer to (some of the) states making them, but I will not be giving precise citations. Likewise, readers are certainly aware that the Court has not only invited states to make their arguments on Kosovo’s independence, but has also asked the authors of the unilateral declaration of independence (UDI) of Kosovo to provide their own contributions, without prejudice to Kosovo’s status. As the readers will shortly see, the identity of the authors is actually a live issue in the case. For the sake of simplicity, however, I will refer to ‘Kosovo’ both to designate the geographical area, and the (‘so-called,’ ‘self-proclaimed,’ etc.) entity of Kosovo, whose UDI is the object of the case, and whose representatives spoke before the Court. Finally, the length of the disclaimers by itself indicates that this will be a relatively longish post, so sorry about that.

Now, with that out of the way – in the course of giving its advisory opinion, the Court will have to address in one way or another four broad groups of issues:

(1)  Various preliminary objections (put forward e.g. by France and Albania) mainly as to the propriety of the exercise of its advisory jurisdiction, that seek to persuade the Court to decline to render an opinion. These objections are neither likely to succeed nor are themselves particularly interesting, and I will therefore not be discussing them in this post;

(2)  The meaning of the question that the UN General Assembly has posed to the Court. As we will see, the scope of the question is an absolutely crucial issue, that will have ripple effects on all other issues in the case;

(3)  The lawfulness, vel non, of the UDI under general international law;

(4)  The lawfulness, vel non, of the UDI under UN Security Council Resolution 1244 (1999).

With the exception of (1), I will now address each of these broad areas in turn.

The Question Question

UNGA resolution A/RES/63/3 asked the following question of the Court: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” The Court obviously has to interpret this question before attempting to answer it, and much will depend on how it proceeds to do so.

Both Kosovo and its supporters (e.g. the US and UK) have criticized this question as being absurd or nonsensical, or at the very least so narrow that it renders the Court’s advisory function almost totally meaningless. In their view, the GA has asked the Court (in a formulation proposed by Serbia, which Serbia itself referred to as narrow) to proclaim on the legality of a verbal act adopted on a given day by (what in Serbia’s argument was, and remains) a non-state actor – the UDI of 17 February 2008. However, except in the most limited of circumstances (e.g. incitement to genocide), international law has absolutely nothing to say on the verbal acts of non-state actors, as it does not regulate them with regard to their content. Therefore, the question whether the UDI was ‘in accordance’ with international law either cannot be answered, or that answer is very simple indeed – there was no norm of international law prohibiting it, and hence it is in full accordance with international law.

For their part, Serbia and its supporters (e.g. Spain, Cyprus and Argentina) argue that the question is neither all that narrow nor absurd. Not only do some of the objections above presuppose the content of the norms in dispute, but the General Assembly cannot be thought to have asked the Court a question without any meaning or purpose. Rather, in Serbia’s view, the question is not confined to the legality of a purely verbal act by a non-state actor, but pertains to the lawfulness of a purported act of state creation, i.e. the secession of a part of Serbia’s sovereign territory. The question can be said to be narrow only to the extent that it excludes from its ambit the lawfulness, vel non, of the acts of third states, namely the recognition by some states of the alleged new state of Kosovo.

This account is of course a bit simplistic, but I hope that it adequately captures the arguments of the opposing sides. Bearing them in mind, the Court has three basic options as to how it will interpret the question:

(1)  A narrow reading will mean that the Court will confine itself to examining the legality of a purely verbal act adopted by a non-state actor on a given day;

(2)  A moderate reading will require the Court to examine the lawfulness of the secession as such;

(3)  An expansive reading will have the Court venture not only into examining the lawfulness of the secession, but also into the further issue of what are the consequences of its finding of (il)legality. Most importantly, after  examining the lawfulness of the secession, the Court could establish whether the entity of Kosovo fulfils the legal criteria for statehood, i.e. possesses a sufficient factual predicate for it in the absence of any legal impediments.

Subtle variations in these three readings are of course possible, as each is underpinned by its own policy considerations and by how the Court perceives its adjudicative role in the international community. One thing to watch for is whether the Court will resort to explicitly reformulating the question posed by the General Assembly, as it has done in several cases in the past. But again, I cannot emphasize this strongly enough, a great deal depends on which option the Court chooses. In the following analysis, I will proceed from the assumption that the Court will choose either a moderate or an expansive reading of the question.

The UDI and General International Law

If the UDI is seen as a purported act of secession and state creation, what does general international law have to say about it? In the submission of Kosovo and its supporters – nothing much. International law is essentially neutral towards secession, treating it as a fact that is neither legal nor illegal. In some cases, international law may explicitly prohibit secession, for example when it is a direct consequence of the use of inter-state force, as was the case with Northern Cyprus. In others, it may explicitly create a right of secession, as with external self-determination. In between these two extremes, however, international law remains in a posture of neutrality.

This in Serbia’s view incorrect. Far from being neutral towards secession, modern international law posits territorial integrity as one of its foundational principles. Unless it creates an explicit and exceptional right to secession, as with external self-determination, international law generally prohibits it in favour of the mother state’s integrity.

To this argument Kosovo responds by saying that Serbia and its supporters mischaracterize the legal nature of the principle of territorial integrity. It is indeed a foundational rule of modern international law, but it is one which applies only between states. In other words, it is other states which (up to a point) had a duty to respect Serbia’s territorial integrity, but that duty did not extend to individuals and non-state actors within Serbia itself. Such a duty may have been imposed, say, by Serbian domestic law, but individuals and non-state actors most certainly do not have it under general international law.

The written and oral arguments made by dozens of states before the Court are of course a bit more complex. They also involve much speaking past each other, a large degree of confusion, as well as conceptual and terminological inconsistencies. But ultimately, in my view, the general international law issue boils down to a choice between two competing models of secession: a two-part model advocated by Serbia and its supporters, where secession is prohibited unless expressly permitted; and a three-part model advocated by Kosovo and its supporters, in which there are narrow zones of both prohibition and explicit permission, and a wider zone of neutrality, in which secession is neither prohibited nor expressly permitted.

Now, crucially, this is again where the ‘question question’ comes into play. Kosovo and its supporters thus argue that it is only if Kosovo’s secession comes into in the ‘prohibited’ zone of either model that it would be necessary for the Court to venture into the issue of self-determination. This is so simply because the GA’s question does not ask the Court to rule whether Kosovo had a right to declare independence, but whether its UDI was in accordance with international law – a requirement that a mere absence of a prohibition would presumably satisfy.

It is because of this procedural posture and the formulation of the question that the issue of self-determination has played a distinctly subsidiary role in the proceedings (to the initial surprise of many, myself included). Kosovo did its best to persuade the Court that it simply doesn’t need to reach it – indeed, if one takes a look at Kosovo’s first written contribution, self-determination takes up only two (2!) out of hundreds of pages. On the other hand, many states have put a greater emphasis on the self-determination issue, and the Court may well have something to say about it. As the readers are aware, that issue raises several distinct sub-issues: are the Kosovo Albanians a ‘people’; does a non-colonial people gain the remedial right to external self-determination on account of state oppression and denial of human rights and/or internal self-determination; if so, has that right lapsed because of passage of time and Serbia’s offer of full internal autonomy.

The UDI and Resolution 1244

One strand of the case is thus the conformity of the UDI with general international law. The other is its validity under UNSC Resolution 1244 (1999).

The main issues basically revolve around the proper interpretation of Resolution 1244. The arguments are very sophisticated, and I am incapable of summarizing them in a truly coherent way (I would in that regard refer the readers to the oral arguments of Sean Murphy on behalf of Kosovo and Andreas Zimmermann on behalf of Serbia). Suffice it to say that the main thrust of Kosovo’s argument is again the absence of any prohibition. In their view, there is nothing in the resolution which prevented Kosovo from adopting a declaration of independence. In particular, the preambular reference to the FRY’s territorial integrity was nothing more than a statement on the Council’s part of the legal situation as it was when the resolution was passed – that Kosovo was then, in 1999, a part of the FRY. It was not, however, a guarantee that Kosovo will always remain a part of Serbia.

Serbia, on the other hand, argues that the resolution asked the parties to reach a settlement on Kosovo’s final status, and that the term ‘settlement’ by definition excludes solutions imposed unilaterally, such as the UDI. In fact, both the Security Council and the Special Representative of the Secretary-General (SRSG) have previously declared as invalid and contrary to Resolution 1244 acts adopted by the Kosovo Assembly which in one way or another tried to assert a claim of independence.

Kosovo responds by saying that today, unlike in previous cases, there was indeed a ‘settlement,’ which was not unilateral, as it followed a political process of negotiation, the appointment of Martti Ahtisaari as the UNSG’s special envoy, and his conclusion that the final status should be independence. Serbia rejoins, however, by saying that the Security Council never endorsed Ahtisaari’s plan and Kosovo’s independence.

These are the main arguments in a nutshell, but they are interwoven in a very complex web with several other more-or-less ancillary arguments, some of which I think are absolutely fascinating. They are moreover easy to miss if the case is looked at only casually. They include:

(a)   The identity of the authors of the UDI: One issue, that at first glance might seem to be quite marginal or even peculiar, is how to characterize the authors of the UDI. In Serbia’s view, the authors of the UDI were undoubtedly the Provisional Institutions of Self-Government (PISG), namely the Kosovo Assembly, President and Government, that were set up by UNMIK under the auspices of Resolution 1244. Not only is this a fact that the Court can adduce from the available evidence, but in its question to the Court the General Assembly has actually made this factual determination, when it asked to Court to rule on whether ‘the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [was] in accordance with international law.’

Kosovo responds by saying that the authors were not in fact the PISG, i.e. were not acting in that capacity, but were acting organically as the ‘democratically elected representatives of the people of Kosovo.’ The UDI was not adopted as an act of the Kosovo Assembly as part of the PISG, but was signed by the assembled dignitaries more or less in their personal capacity, as is shown, inter alia, by the original vellum manuscript of the UDI itself.

Thus, the parties in the case actually dispute the very identity of the authors of the UDI. At the oral hearings (e.g. at 28, 29, 30, etc.), in order to avoid any appearance of prejudice, President Owada thus repeatedly referred to the authors as the ‘authors of the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo.’ This semantically simply magnificent formulation drew a smile from at least one or two other members of the bench – but we’ll see in a minute why any of this actually matters.

(b)  Legal nature of UNMIK regulations: One prong of Serbia’s argument is that the UDI not only violates Resolution 1244 as such, but also the whole legal regime established by it through regulations passed by the SRSG/UNMIK as the international civilian administrator. Among these regulations the most important is the Constitutional Framework for Kosovo, which sets out the competences of the PISG. In Serbia’s view, the UDI and subsequent developments were manifestly ultra vires acts under the Constitutional Framework.

Kosovo and its supporters respond by saying that even if the UDI was a violation of the Constitutional Framework, the GA’s question only asks the Court to assess the conformity of the UDI with international law, which the regulations are not, as they are or were the local, municipal law of Kosovo.

Not so, says Serbia. Not only were the regulations passed by UNMIK, a subsidiary organ of the UN established by a Security Council resolution, and were hence international by definition, but Kosovo’s argument presents a false choice to the Court. There is no reason why the Constitutional Framework and other regulations couldn’t at the same time be regarded as being both international and domestic in nature.

And this is where the identity of the authors of the UDI starts to come in – if they were not the PISG, and were acting in some sort of organic capacity as the democratic representatives of their people, a pouvoir constituant, then they could not have acted ultra vires the Constitutional Framework because it was not the Framework which gave them their vires to act. Serbia then says, oh come on, this is just a self-serving construction designed to avoid the binding effect of the Constitutional Framework. These were the same people who were elected as the PISG and they didn’t just go poof! one minute and transform from the PISG into some ill-defined group of individual representatives.

(c)   Binding effect of UNSC resolutions on non-state actors: The case also raises a similar, but more fundamental issue – could the UDI, as an act of a non-state actor, even violate a UNSC resolution? Under Art. 25 of the Charter, it is UN member states who have a duty to comply with UNSC resolutions, but there is nothing in the Charter that says that individuals or non-state actors generally have such a duty. If, in other words, Resolution 1244 was not even binding on the authors, how could the UDI have violated it?

Now, this is an argument that was noticed by a very small number of states – and it is an issue very, very rarely addressed in the literature. Even those that have noticed the argument chose not to employ it in such a categorical way. Some have merely expressed doubts as to whether the UNSC can bind non-state actors; others have opted for an interpretative presumption, saying that even if the UNSC can bind non-state actors, it needs to do so explicitly, and there is no such language in the resolution.

Serbia has several responses to this line of argument. First, because the authors were the PISG (here again the identity issue comes into play), and the PISG were created by UNMIK, which was itself created by Resolution 1244, the PISG must themselves be bound by 1244, and indeed this is what the Constitutional Framework explicitly says. Likewise, the Council has in its presidential statements also explicitly referred to the need for the PISG and all other actors to comply with 1244, and has accordingly regarded the resolution as being binding on non-state actors. Finally, even if the authors were not the PISG, all actors in Kosovo were subject to 1244, as this is simply a consequence of the nature of international territorial administration.

(d)  Acquiescence by the UNSC and the UNSG/SRSG: Acquiescence is a major argument deployed by Kosovo and its supporters in favour of their preferred interpretation of Resolution 1244 as requiring neither acceptance by Serbia nor explicit endorsement by the Security Council for a ‘settlement’ of Kosovo’s final status to be reached. This purported acquiescence takes two forms. First, the UNSG and the SRSG have acquiesced in the UDI by not annulling it, as they had the authority to do, an authority that the SRSG exercised on several previous occasions. Second, the UNSC has also acquiesced, as it has adopted no decision condemning the UDI, nor has it instructed the UNSG/SRSG to disregarded it. All this indicates that the primary actors tasked with interpreting and applying Resolution 1244, to whose judgment the Court should defer, did not consider it to preclude the UDI.

Serbia responds as follows: first, the UNSG and the SRSG have quite explicitly taken a position of ‘strict neutrality’ towards the UDI. A position of neutrality by definition cannot be taken as a tacit endorsement of the UDI’s legality. As for the UNSC, we know exactly why it has been unable to adopt any decision regarding the UDI – because a lack of political agreement among its permanent members. This is neither the first nor the last such time. Considering not only the text of the Charter which sets out the positive requirements for a Council decision, but also the context and the way in which the Council operates, it would be unacceptable as a matter of both law and policy to say that a mere failure to condemn equals acquiescence. Otherwise, the Council could, for example, be said to have acquiesced in any unauthorized use of force that it fails to condemn because of a potential P-5 veto (see, e.g., Iraq).

This, I think, covers most of the issues with regard to the UDI’s conformity with Resolution 1244. The ‘big’ question, if I may be excused for paraphrasing George W. Bush, is who is ultimately the decider. Does a ‘settlement’ have to be negotiated, i.e. can Serbia indefinitely prevent Kosovo’s independence simply by withholding its agreement? Or can Kosovo impose a solution on Serbia, so long as it has the support of a large section of the ‘international community’? Or is it rather the Security Council who has to conclusively say that a settlement has been reached, and what that solution has to be? The big question aside, we mustn’t underestimate the importance of the ancillary issues I have outlined above, and their interplay with the interpretation of Resolution 1244.

 Conclusion: The Court’s Options

Having thus looked at the various issues and arguments, what are the options before the Court? I can see six, again bearing in mind that the Court can interpret the GA’s question narrowly, moderately, or expansively:

(i)              Dismissal: The Court can refuse to answer the question and dismiss the case on various grounds of judicial propriety. This is unlikely, though not impossible.

(ii)            Narrow reading: The Court can read the question very narrowly, in which case its answer will be very narrow as well, confined to the formal examination of the UDI as a purely verbal act adopted by a non-state actor on a given day. Whatever the Court’s decision, it will legally be neither here nor there with respect to the broader issues at play.

(iii)          Moderate reading – Serbia wins: If the Court adopts a moderate reading of the question, and looks at the legality of the secession as such, it can then conclude that the secession was unlawful as a violation of general international law, Resolution 1244, or both. However, it might then rule that it is not for it to say what the consequences of such a finding of a violation would be. Specifically, it could leave open the question of Kosovo’s statehood for resolution (or not) within the UN political bodies or within the political process generally. This would allow Kosovo to argue that though its secession may have been unlawful (in the view of the Court), its statehood is a question of political fact and is untouched by the Court’s decision.

(iv)          Moderate reading – Kosovo wins: Similarly, the Court might adopt a moderate reading of the question, find that there was no norm of international law prohibiting Kosovo’s secession and that the UDI was therefore ‘in accordance’ with international law, only to then abstain from ruling on Kosovo’s statehood. This would allow Serbia to argue that though Kosovo’s secession may not have been unlawful (in the view of the Court), Kosovo still does not fulfil the criteria for statehood, as e.g. its independence from Serbia is entirely dependent on the (status-neutral) international presence in Kosovo which still operates under the auspices of Resolution 1244.

(v)            Expansive reading – Serbia wins: If the Court interprets the question expansively, and finds in Serbia’s favour, it could then proceed to examine the issue of Kosovo’s statehood and rule that the entity of Kosovo is not a state under international law.

(vi)          Expansive reading – Kosovo wins: Alternatively, the Court could read the question expansively and rule in Kosovo’s favour, finding also that it does indeed fulfil the legal criteria for statehood. (It is also theoretically possible, but quite unlikely, that the Court will find that secession was unlawful, but that Kosovo is a state, or vice versa).

These are the results that I think are legally and logically open to the Court (of course, the Court may well disagree, and come up with something completely different). I would, however, dispute the conventional wisdom that the Court will render a Solomonic opinion that will be equally (un)satisfactory for both sides. The formulation of the question and the consequent array of arguments appear to exclude such an option. Except in scenarios (i) and perhaps (ii), there will be a clear winner and a loser, though in scenarios (iii) and (iv) the extent of that win or loss could be somewhat relativized (and these scenarios are for that reason perhaps more likely). Finally, whatever the majority decides, it is certainly possible for there to be a serious split within the Court, which would probably be bad news for everyone, above all for the Court itself. That said, again, the inevitable political spin on the Court’s decision and its broader ramifications are not something that I wish to comment on.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. I argued that:

for ICC parties, the existence of an obligation to cooperate and arrest under the Genocide Convention opens up a different argument with regard to Bashir’s immunity. Under Article IV of the Convention, “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” This statement appears to be directed primarily at removing a substantive defence based on official capacity. However, the provision must also be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished. Immunities are removed before the two types of courts provided for in Article VI in the Genocide Convention: the courts of the territory where the genocide occurred and a competent international penal tribunal whose jurisdiction is accepted the State in question.

Since, according to the ICJ’s logic, States parties to the ICC have an obligation to cooperate with the ICC when persons wanted for genocide are on their territory, and since Art. IV provides that even heads of State and public officials are to be punished, it could be argued the Genocide obligation imposes an obligation on ICC States to arrest those wanted for genocide, even if they are the head of State. This argument bypasses  the application of Article 27 of the ICC Statute and the question whether Sudan is to be regarded as in the position of a party to the ICC Statute. Here the obligation of ICC parties to arrest is based on the acceptance of the ICC’s jurisdiction by that party and the imposition of ICC jurisdiction on Sudan. Furthermore, the removal of immunity is based on the acceptance of the Genocide Convention by the arresting party and by Sudan.

In a recent article in the Journal of International Criminal Justice, Goran Sluiter has also addressed this question. He reaches a similar conclusion to me though he relies more on Art. VI of the Genocide Convention than Art. IV.

 Art. VI reads ”Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

However, Professor Sluiter perhaps goes a bit further than I do in my post and my article in that I think he would say that there is no immunity even in the territory of parties to the Genocide Convention who are not parties to the ICC Statute. The difference turns on whether one accepts what the ICJ said in the Bosnia Case that a State only has a duty to cooperate with an international tribunal under the Genocide Convention, if it has accepted the jurisdiction of the tribunal and that to know whether it has accepted the jurisdiction of the tribunal for this provision one looks to see whether the State has a duty to cooperate with the tribunal. So the ICJ’s reasoning leads to a circular logic which would mean that the duty to cooperate under the Genocide Convention requires a duty to cooperate under another instrument. Prof. Sluiter disagrees with this reasoning. In the context of the Bashir case, he says that:

when the Security Council, by a binding decision taken under Chapter VII, submits a situation to the ICC, thereby creating jurisdiction for that Court, UN members must be regarded as having accepted the jurisdiction of the ICC in respect of that situation. This brings the ICC, in relation to the situation in Darfur and when an arrest warrant includes accusations of genocide, within the full reach of Article VI of the Genocide Convention. All contracting parties to that Convention are members of the UN and all of them can be said to have accepted the jurisdiction of the Court. (p. 372, Sluiter article)

In any event, application of the ICJ’s decision in the Bosnian Genocide Convention Case to the Bashir case adds another argument for coming to the conclusion that he would not be entitled to immunity at least in the territory of ICC parties and perhaps in the territory of all parties to the Genocide Convention.

The plaintiff was the mother of a UK soldier stationed in Iraq who died there from a severe heatstroke. She demanded an inquiry into her son’s death that would be compliant with Article 2 ECHR, that would be able to expose what in her view were systemic faults in the UK’s provision of equipment and facilities to its soldiers in Iraq which ultimately led to her son’s death. In other words, the case is a mirror-image of Al-Skeini, which also dealt with Art. 2 procedural obligations in Iraq, but that time with respect to inquiries into the deaths of Iraqi nationals at the hands of UK troops. As the readers are aware, the Grand Chamber of the European Court held hearings in Al-Skeini just a few weeks ago (see my old post for more background).

With regard to extraterritoriality, the issue before the Supreme Court in Smith was this: does a UK soldier in Iraq enjoy the protection of the ECHR while stationed in an area not under the UK’s effective control? Incidentally, on the facts of the case, Private Smith actually died on a UK military base. Per the UK government’s concession in Al-Skeini, the House of Lords’ quite dubious analogy between a military prison or base and an embassy, and the European Court’s recent admissibility decision in Al-Saadoon, that fact alone would have brought Private Smith within the UK’s jurisdiction. Readers will recall that in Al-Saadoon the European Court brought the spatial model of Art. 1 jurisdiction as state effective overall control of a geographical area to its extreme, but saying that a military prison or base qualified as an ‘area’ susceptible to such jurisdiction and control.

In other words, under the spatial model Private Smith would have been within the UK’s jurisdiction, and therefore entitled to protection under Art. 2 ECHR. However, issue was raised in the lower courts as to whether he would have been within the UK’s jurisdiction even if he did NOT die on the base, but in essentially the same circumstances. Like the lower courts, therefore, the Supreme Court was now faced with a set of questions in a quasi-advisory posture – something that several judges openly lamented. The Court nonetheless decided to rule on the matter, because it is one of great practical relevance of UK military operations abroad; Private Smith is obviously not the only UK soldier to have died in Iraq or Afghanistan, and many soldiers lost their lives outside areas under UK effective control.

The lower courts applied to Private Smith a variant of the personal model of Art. 1 jurisdiction, as state authority and control over individuals, finding that he indeed fell within the scope of Art. 1. In their view, simply by virtue of being a part of the UK military, Private Smith was within the UK’s authority and control, and accordingly within its jurisdiction.

Today the Supreme Court disagreed. By a majority of 6 to 3 (Lady Hale and Lords Mance and Kerr dissenting), the justices found that mere membership in the armed forces was insufficient to establish a jurisdictional link for the purposes of Art. 1 ECHR.

For what it’s worth, this result is in my view ultimately correct. I am personally less than happy, however, with the reasoning of either the majority or the minority in the process of reaching this result. Because they as of necessity had to start from Bankovic, a methodologically deeply flawed decision of the European Court, both the judgments of the majority and the minority suffer from a great deal of otherwise needless conceptual confusion. In other words, because they are national judges applying a treaty primarily supervised by an international court, it is natural that the justices will follow the European Court’s approach, however flawed, and whatever their misgivings about the mess that Strasbourg has made. And as in Al-Skeini, several justices thought that this was an issue that was in the end for Strasbourg to settle. Thus, for example, Lord Phillips in para. 60 of his judgment said that:

We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States. The contention that a State’s armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct. The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al-Skeini. For these reasons I would hold that the Court of Appeal should not have held that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at times when he was not within premises under the effective control of the army.

Similarly, though in the minority, Lord Mance in paras. 163-164 of his judgment seemed to have had mixed feelings about following Strasbourg. On the one hand it made his life easier, as he did not have to approach Art. 1 ECHR as completely an issue of first impression. On the other, Strasbourg’s wildly conflicting case law prevented him from attaining a totally clear and principled justification for extending ECHR rights to UK soldiers in Iraq. (Incidentally, I am overjoyed that this article of mine was cited by Lord Mance, in the company of such authors as Rick Lawson and former ECtHR Judge Loukis Loucaides, all arguing that the concept of ‘jurisdiction’ in human rights treaties is in reality a simple one, denoting de facto state control over territory and/or individuals, nothing more, and nothing less).

So, Bankovic and its lamentable offspring aside, why is the majority correct that Private Smith was not within the UK’s jurisdiction under the personal model? Isn’t it true, as Lord Mance points out, that it is ‘commonsense’ that UK soldiers are within the UK’s jurisdiction? Isn’t it true, as Lord Kerr thought (para. 322), that ‘the United Kingdom brought its soldiers into Iraq; it not only asserted complete authority over them while they remained there, it explicitly excluded the exercise of authority over those soldiers by any other agency or state; and it has always been clear that soldiers remain subject to the laws of the UK during their service abroad.’ Likewise, isn’t it true that, as Alex Bailin QC pointed out in his case preview at the excellent UK Supreme Court Blog, ‘[t]here is a simple, intuitive point  – if a soldier is always subject to UK law, wherever he may be, should he not thereby be also entitled to the protection of UK law (including the Human Rights Act)?’

I would submit that this intuition is wrong, however sensible it may seem at first glance. It not only assumes that the spatial model can be supplemented by a variant of the personal model based on legal links such as nationality or membership in the armed forces, but it rests on a confusion – confusion that authors such as Lawson, Loucaides, or Ralph Wilde have tried to dispel – between the various meanings that the word ‘jurisdiction’ can have in general international law.

It is true that a state may legislate for its nationals and members of its armed forces even when they are abroad, and in fact all states do that to a greater or a lesser extent. It is also true that a state’s soldiers are its de jure organs, and that their conduct performed in their official capacity is attributable to the state. Neither of these premises can, however, lead to the conclusion that a state’s soldiers, or diplomats, any other agents or even nationals are regardless of their location always within that state’s jurisdiction within the meaning of the jurisdiction clauses of human rights treaties. This ‘jurisdiction’ is simply not the jurisdiction to prescribe in general international law. It is not about the application and extent of UK domestic law.

If the personal model of jurisdiction is valid, its acceptance of nationality or membership in the armed forces as grounds of state jurisdiction would lead to an open embrace of double standards – and there, I may say, is where the intuitive appeal actually lies. Let us, for example, simply transplant Smith to the facts of Al-Skeini – imagine that one of the five applicant Iraqi citizens killed by UK troops on patrol was actually a dual UK/Iraqi national. Further, imagine that the sixth applicant was not Baha Mousa, but was in fact the mother of a UK soldier killed by friendly fire by UK troops on patrol. The reasoning of the lower courts or the minority of the Supreme Court in Smith would lead to the result that the dual national and the UK soldier would be within the UK’s jurisdiction, and thus entitled to the protection of Article 2 ECHR, while the other applicants would not, even though all of them were killed in exactly the same way, in exactly the same place.

In other words, the appeal of the minority approach lies precisely in the fact that we would feel it unjust if the UK government did not owe human rights obligations to its own soldiers in Iraq, while our feelings may be more mixed when it comes to Iraqi civilians shot on patrol. We simply care more about ‘our boys’, then about their enemies or even their victims. The Smith approach is about ‘us’ versus ‘them,’ if not openly so, and is antithetical to the whole idea of universality. This is not to say that nationality or membership in the armed forces are totally irrelevant for the substantive application of human rights norms. Obviously, only a UK national would have the right to vote at any UK election organized abroad, and only a UK national would have the right to return to the UK as his own country. This, however, only depends on the content of a very limited set of rights, but the application of the ECHR as such cannot depend on nationality or any other personal status.

In short, while it may be artificial to say that a UK soldier would be protected by the ECHR while on a UK base, but not off it, this is no more artificial than saying that an Iraqi national is protected by the ECHR while on a UK base or while in UK custody, but not on the streets of Basra, as was the result in Al-Skeini. Thus, though Lord Phillips’ judgment for the majority mainly rests on considerations of practicality or effectiveness to deny the extraterritorial applicability of the ECHR to UK soldiers abroad on account of their status, I would submit that, more fundamentally (and perhaps with a degree of irony), this is the only result consistent with universality as the normative foundation of the ECHR and all other human rights treaties – unless, of course, it is Bankovic and Al-Skeini themselves which are wrongly decided.

(For more commentary, see the UK Human Rights Blog and UK Supreme Court Blog, here and here).

The applicants first based their claim on Art. 12, arguing that the Court should interpret it in an evolving manner so as to now require the legal recognition of same-sex marriage (see here for more on evolutionary interpretation). The Court refused to do so, finding that (at least for the time being) the matter was left to the margin of appreciation of contracting states (paras. 54-64):

54.  The Court notes that Article 12 grants the right to marry to “men and women”. The French version provides « l’homme et la femme ont le droit de se marier ». Furthermore, Article 12 grants the right to found a family.

55.  The applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa. The Court observes that, looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women. However, in contrast, all other substantive Articles of the Convention grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate. Moreover, regard must be had to the historical context in which the Convention was adopted. In the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex.

56.  As regards the connection between the right to marry and the right to found a family, the Court has already held that the inability of any couple to conceive or parent a child cannot be regarded as per se removing the right to marry (Christine Goodwin, cited above, § 98). However, this finding does not allow any conclusion regarding the issue of same-sex marriage.

57.  In any case, the applicants did not rely mainly on the textual interpretation of Article 12. In essence they relied on the Court’s case-law according to which the Convention is a living instrument which is to be interpreted in present-day conditions (see E.B. v. France [GC], no. 43546/02, § 92, ECHR 2008-…, and Christine Goodwin, cited above, §§ 74-75). In the applicants’ contention Article 12 should in present-day conditions be read as granting same-sex couples access to marriage or, in other words, as obliging member States to provide for such access in their national laws.

58.  The Court is not persuaded by the applicants’ argument. Although, as it noted in Christine Goodwin, the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage (see paragraph 27 above).

59.  As the respondent Government as well as the third-party Government have rightly pointed out, the present case has to be distinguished from Christine Goodwin. In that case (cited above, § 103) the Court perceived a convergence of standards regarding marriage of transsexuals in their assigned gender. Moreover, Christine Goodwin is concerned with marriage of partners who are of different gender, if gender is defined not by purely biological criteria but by taking other factors including gender reassignment of one of the partners into account.

60.  Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter of Fundamental Rights of the European Union (the Charter), the Court has already noted that the latter has deliberately dropped the reference to men and women (see Christine Goodwin, cited above, § 100). The commentary to the Charter, which became legally binding in December 2009, confirms that Article 9 is meant to be broader in scope than the corresponding articles in other human rights instruments (see paragraph 25 above). At the same time the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States. In the words of the commentary: “… it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is however, no explicit requirement that domestic laws should facilitate such marriages.”

61.  Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.

62.  In that connection the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (see B. and L. v. the United Kingdom, cited above, § 36).

63.  In conclusion, the Court finds that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage.

64.  Consequently, there has been no violation of Article 12 of the Convention.

The argument then moved to equality. As the readers are aware, discrimination cases before the European Court proceed in two stages: (1) was there differential treatment between people in similar situations; and if so (2) was that difference in treatment objectively and reasonably justified, i.e. (a) did it pursue a legitimate aim, and if so (b) was it proportionate to that aim. Likewise, because the prohibition of discrimination in Art. 14 is accessory in nature, it applies only when the the complaint falls within the ambit of some other Convention provision – here Art. 8.

Importantly, the Court has now held not only that same-sex relationships are to be regarded as a part of ‘private life’ within the meaning of Art. 8, but also as part  of ‘family life’, due to the evolving nature of family relationships in Europe (paras. 92-95). It hence found that same-sex couples and opposite-sex couples were in a comparable situation (para. 99), and that the accordingly any differential treatment had to be objectively and reasonably justified so as not to constitute discrimination. The applicants alleged three types of such treatment – first, their inability as such to enter into marriage, second, Austria’s laxity in providing legal recognition to same-sex couples, and finally, certain differences in Austrian law between the treatment of marriage and registered partnerships.

As for the first, the Court thought that this argument was essentially the same as the one already considered under Art. 12, and held that (para. 101):

101. Insofar as the applicants appear to contend that, if not included in Article 12, the right to marry might be derived from Article 14 taken in conjunction with Article 8, the Court is unable to share their view. It reiterates that the Convention is to be read as a whole and its Articles should therefore be construed in harmony with one another (see Johnston and Others, cited above, § 57). Having regard to the conclusion reached above, namely that Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage, Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either.

As for the second, the Court considered that (paras. 103-106):

103.  The Court reiterates in this connection that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see F. v. Switzerland, cited above, § 31). Given that at present it is open to the applicants to enter into a registered partnership, the Court is not called upon to examine whether the lack of any means of legal recognition for same-sex couples would constitute a violation of Article 14 taken in conjunction with Article 8 if it still obtained today.

104.  What remains to be examined in the circumstances of the present case is whether the respondent State should have provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did.

105.  The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (see Courten, cited above; see also M.W. v. the United Kingdom (dec.), no. 11313/02, 23 June 2009, both relating to the introduction of the Civil Partnership Act in the United Kingdom).

106.  The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus. Though not in the vanguard, the Austrian legislator cannot be reproached for not having introduced the Registered Partnership Act any earlier (see, mutatis mutandis, Petrovic, cited above, § 41).

Finally, as for the differences between marriage and registered partnerships, the Court held that (paras. 108 & 109):

108.  The Court starts from its findings above, that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. Nevertheless the applicants appear to argue that if a State chooses to provide same-sex couples with an alternative means of recognition, it is obliged to confer a status on them which – though carrying a different name – corresponds to marriage in each and every respect. The Court is not convinced by that argument. It considers on the contrary that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition.

109.  The Court observes that the Registered Partnership Act gives the applicants a possibility to obtain a legal status equal or similar to marriage in many respects (see paragraphs 18-23 above). While there are only slight differences in respect of material consequences, some substantial differences remain in respect of parental rights. However, this corresponds on the whole to the trend in other member States (see paragraphs 32-33 above). Moreover, the Court is not called upon in the present case to examine each and every one of these differences in detail. For instance, as the applicants have not claimed that they are directly affected by the remaining restrictions concerning artificial insemination or adoption, it would go beyond the scope of the present application to examine whether these differences are justified. On the whole, the Court does not see any indication that the respondent State exceeded its margin of appreciation in its choice of rights and obligations conferred by registered partnership.

Thus, though the Court generally regards differences in treatment between same-sex couples and opposite-sex couples to be impermissible, it leaves open the possibility that some of these differences can be justified, leaving also these particular issues for future concrete cases.

While the Chamber was unanimous with regard to Art. 12, its finding of no violation of Arts. 8 + 14 was the consequence of a 4 to 3 split. Judges Rozakis, Speilmann and Jebens dissented, finding that the lack of legal recognition in Austrian law until 2010 (rather than the denial of a particular legal rights) did as such  amount to a violation. On the other hand, Judge Malinverni gave a concurring opinion joined by Judge Kovler, in which he considered that under normal rules of treaty interpretation Art. 12 could never be regarded as protecting same-sex couples, as its text simply does not permit such an interpretation.

***

In short, the case is positively fascinating. The most fundamental legal issue that it raises is whether the purely moral attitudes of a majority can ever justify the differential treatment of a minority. And if we accept that morality alone can justify the denial of legal rights, or differences in apportioning them, then we come to the question as to how a court can objectivize or legalize such a moral judgment.

The method that the Court uses, and that I personally find appealing, is to refrain as much as possible from moralizing on its own, but to refer to a moral consensus among the 47 European states, and to leave them a margin of appreciation when such a consensus is lacking. Hence, because it relies on this deferential comparative method, the Court generally tends to follow, rather than lead. Once a consensus emerges, it will probably impose it on the recalcitrant members of its interpretative community, as it has done e.g. in Dudgeon, with respect to the criminalization of homosexuality. But until that happens, it will leave the democratic processes in diverse European societies to come up with their own solutions.

Thus, contrary to the impression of many in say the American judiciary or academia, the European Court is far less ‘activist’ than its US counterparts, such as e.g. the Supreme Courts of Massachusetts and California, which interpreted their state constitutions’ equality guarantees as requiring the opening of marriage to same sex couples. Because the moral views of judges might be out of step with those of the majority of people in a democracy, such judgments can produce an intense public backlash and can thus ultimately prove to be counterproductive. For example, the Californian judgment was thus overturned by a constitutional referendum. The result of this referendum is now the object of a closely-watched, high-profile litigation in a US federal District Court (Prop 8 trial), and may well go all the way up to the ideologically extremely divided US Supreme Court, causing a large amount of political fallout no matter how the courts rule.

Finally, it is certainly possible that the parties will appeal this judgment to the Grand Chamber. Even if the Grand Chamber agrees to take the case, I find it unlikely that it would overturn the unanimous position of the Chamber that marriage as such does not have to be opened to same-sex couples (at least until such a European consensus emerges). While only 6  (now actually 7, recently inclusive of Iceland) out of 47 states recognize same-sex marriages, it is doubtful that this ruling will be departed from. Some of the Chamber’s findings with respect to discrimination, however, may be open to more  doubt, particularly as to the question of the lack of any legal recognition of same-sex couples (as, e.g., in countries like Russia or Serbia), and the as-of-yet unspecified permissible differences between marriages and registered partnerships.

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in Gäfgen v Germany. The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions.

 The applicant’s confessions were excluded from the evidence at trial, but the “real” evidence which was obtained as a result of the confession (in particular, the boy’s body) was admitted (the so-called “fruits of the poisoned tree”). On the second day of the trial, after having been informed that none of his previous confessions were admissible against him, but having lost his application to exclude the real evidence, Gäfgen gave a partial confession in the witness box. At the conclusion of the trial he made a full confession, citing his remorse and desire to take responsibility for the crime. He was convicted of murder and kidnapping with extortion and sentenced to life imprisonment.

 The decision considered two issues: first, whether there was a violation of Article 3 of the European Convention on Human Rights (“No one shall be subjected to torture or inhuman or degrading treatment or punishment”), and second, whether there was a breach of the applicant’s right to a fair trial under Article 6.

 Article 3

It was common ground in the proceedings that the threat of infliction of considerable pain against a suspect in police custody breached Article 3 of the Convention.  However, the Court’s established case law from the 1978 case Ireland v UK draws a hierarchical distinction between “torture” and “inhuman and degrading treatment.” Arguably, this hierarchy has no foundation in the text of the Convention, since Article 15 says that no derogation is permitted from any part of Article 3. It is not at all clear that the text of the article can support the hierarchy between torture and inhuman and degrading treatment which the Court has been minded to maintain. Regrettably, this distinction was subsequently adopted in Articles 1 and Article 16 of the 1984 Torture Convention.

On the question of whether the treatment constituted “torture” or merely “inhuman and degrading treatment”, the Grand Chamber set out a shopping list of relevant factors, including: the duration of the threatening treatment (ten minutes), the applicant’s “fear, anguish and mental suffering” during that period, the apparent absence of any long-term psychological consequences, the intentional and premeditated nature of the threat, and the fact that the applicant was handcuffed in police custody at the time the threats were issued and therefore in a particular state of vulnerability. In the Strasbourg Court’s characteristic manner, it simply listed those factors and then arrived at its decision—that that the treatment was “inhuman and degrading” but not “torture”—without explaining which factors were decisive in that assessment and why. Since many of the same conclusions could be drawn with respect to waterboarding, does the Grand Chamber’s decision carry the implication that waterboarding too should be regarded as inhuman and degrading treatment rather than torture?

The Court’s failure to fully explain and justify its conclusion that the treatment qualified as “inhuman and degrading” but not “torture” is especially problematic given the potentially far-reaching consequences which attach to that distinction. According to Article 15 of the Torture Convention, statements obtained by torture must not be given in evidence in criminal proceedings, whereas the same result does not necessarily follow if the treatment is “merely” inhuman and degrading. Indeed, the Court’s own precedent in Jalloh v Germany extends the importance of that distinction by declaring that the admission of any evidence—whether in the form of a confession, or items of real evidence—which had been obtained by torture would render a subsequent trial unfair (at para. 105). These and other issues were considered at length by the House of Lords in A v Secretary of State (No 2), a case which was not referred to by the Grand Chamber. In light of the significance of the classification of particular conduct as “torture” or “inhuman and degrading treatment”, the Grand Chamber’s analysis on this point leaves much to be desired.

The Grand Chamber, like the ordinary chamber and the domestic courts before it, accepted that the police officers had acted in an attempt to save the child’s life. However, the Court stated (at para. 107) that

The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue.

This may alleviate concerns raised by the Grand Chamber’s assertion in its earlier case of Jalloh v Germany that the seriousness of the offence may be relevant to the determination of whether particular treatment amounted to a violation of Article 3, and in turn whether the admission of evidence obtained in breach of Article 3 would violate Article 6 (see paras. 77 and 107 of Jalloh, and the excellent case comment by Andrew Ashworth at (2007) Crim LR 717). That case concerned the forcible administration of emetics to a small time drug dealer. The Court held that Article 3 had been violated, but its reference to the seriousness of the offence in this context may be read to suggest that if a drug baron or “king pin” had been involved, the treatment may have been justified. This alarming assertion led Judges Wildhaber and Caflisch in dissent to observe, aptly, that “the majority appears to value the health of large dealers less than that of small dealers.” Moreover the Jalloh Court left open the possibility that if the public interest in securing the applicant’s conviction had been greater, it might have warranted the evidence being used at trial (para. 107). This runs directly counter to fundamental precepts of human rights law—surely the need for scrupulous adherence to fairness does not decrease as the seriousness of the offence increases—if anything, the reverse should be true. The fact that the Grand Chamber in Gäfgen eschewed reference to factors such as the seriousness of the offence or the public interest in conviction may therefore reflect a promising return to principle, after its unfortunate foray in Jalloh.

Returning to Gäfgen, the German government had argued, and the Chamber had accepted, that notwithstanding the threat in breach of Article 3, Gäfgen could no longer claim to be a victim as required by Article 34 of the Convention. This was because the proceedings in domestic courts had acknowledged the breach of Article 3, the confessions obtained thereby had been excluded from evidence at Gäfgen’s subsequent trial, and the two police officers had been convicted of criminal offences and transferred from police investigatory duties.

The Grand Chamber overturned the Chamber’s finding on this issue, holding that the applicant had not received sufficient redress such as to lose his victim status. The responsible police officers had been convicted of coercion and incitement to coercion, but subjected only to fines (and even those were suspended) and although they had been transferred to other police duties not involving the investigation of offences, one officer had actually been promoted to head of a department at police headquarters. Additionally, the Grand Chamber observed that compensation is normally required to provide redress for a breach of Article 3, and that the failure of domestic courts to make a final decision on the award of compensation meant that the authorities had “not reacted adequately and efficiently to the breach of Article 3 at issue” (para. 127).

Gäfgen had also argued that redress for the violation could only have been granted by the exclusion at trial of all items of evidence obtained as a direct result of his pre-trial confessions, including real evidence (the results of the autopsy conducted on the child’s body, and tyre tracks matching the applicant’s car which were found at the lake where the body lay hidden). The Grand Chamber declined to resolve this issue, holding that it was not necessary to decide whether redress for a breach of Article 3 necessitates the exclusion of all evidence obtained as a result of the breach. The Court preferred to address this issue in the context of Article 6, below.

Article 6

The Grand Chamber affirmed the Chamber’s findings that there was no breach of the applicant’s right to a fair trial under Article 6 of the Convention. In this respect, two points are significant.

First, the Grand Chamber agreed with the ordinary chamber that all of the pre-trial confessions were tainted by the continuing effect of the inhuman treatment, but that there was no issue with the admission of the two confessions which Gäfgen had made during the course of the trial. The domestic court’s exclusion of the pre-trial confessions, and the pre-trial caution administered to the applicant regarding his right to remain silent, had broken the chain of causation such that the inhuman and degrading treatment could no longer be regarded as operative.

Secondly, the Grand Chamber agreed with the Chamber that the admission of real evidence obtained from the pre-trial confessions did not breach Gäfgen’s Article 6 right to a fair trial.  The Court asserted that this position would be different if the treatment concerned had amounted to torture, but that there were grounds for distinguishing real evidence obtained by inhuman and degrading treatment from real evidence obtained by torture. In this respect, its earlier finding that the threat amounted only to inhuman and degrading treatment allowed it to dodge the issue. The Court went on to state (at para. 178) that:

The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as a result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. (emphasis added)

The Strasbourg court wanted to have its cake and eat it too. Despite laying down this general rule, it went on to hold that the rule would not apply if the admission of the evidence in question had no bearing on the outcome of proceedings, and then to declare that Gäfgen fell within the scope of that exception. It is true that the Frankfurt AM Regional Court had declared that the conviction was wholly based on his subsequent confession at trial, along with untainted real evidence. But the applicant had also argued that the admission of tainted real evidence at trial was what prompted his confession. Admittedly this argument was undermined by the fact that he had argued at trial—and in a subsequently published memoir—that he had confessed solely out of remorse for the boy’s family. Undoubtedly the untainted evidence, such as the ransom money and a note concerning the planning of the crime found in the applicant’s flat, together with the police surveillance of his collection of the ransom, could have supported a conviction for kidnapping with extortion. However it is difficult to say with certainty whether, absent the child’s body, the untainted evidence alone could have sustained a murder conviction.  It is equally difficult to say with certainty whether the applicant would still have offered a full confession if the items of real evidence had been excluded from his trial. In this respect the Grand Chamber’s findings that (1) the chain of causation between the inhuman treatment and the applicant’s confessions at trial had been broken; and (2) that the conviction was based solely on his confessions and not the tainted items of real evidence; are open to serious question.

It is notable that the Torture Convention does not address the admissibility of real evidence in criminal proceedings, requiring only that statements “established to have been made as a result of torture” be excluded. This raises the question of whether the Torture Convention should be regarded as setting a minimum standard which states parties should be encouraged to exceed, or whether it is in practice often regarded as setting a ceiling. It is clear from Articles 1(2) and 16(2) of that Convention that the former approach should be preferred. Indeed, the Grand Chamber in Jalloh suggested (at para. 105) that the admission of any evidence obtained by torture would “only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.” It is not clear why the same reasoning should not apply to evidence obtained by inhuman and degrading treatment. Six judges in Gäfgen dissented on this latter point, regretting the Court’s failure to unequivocally declare:

that irrespective of the conduct of an accused, fairness, for the purposes of Article 6, presupposes respect for the rule of law and requires, as a self-evident proposition, the exclusion of any evidence that has been obtained in violation of Article 3.

Conclusion

The decision of the Grand Chamber in Gäfgen may be regarded as something of a mixed bag. On one hand, the Court’s clear statement that the seriousness of the offence was irrelevant to the questions of (1) the threshold for inhuman and degrading treatment; and (2) the fairness of the trial; may be read as putting some distance between its contrary (and highly problematic) assertion in Jalloh. On the other hand, the Court’s high-minded rhetoric about the absolute nature of the prohibition on torture and inhuman and degrading treatment is not borne out in the result, since it refused to hold that the admission of evidence obtained by inhuman and degrading treatment had rendered the trial unfair. Although the Court asserts that this case fell into an exception to an otherwise generally applicable rule, whether the exception will eat up the rule remains to be seen.

Let me now try to provide a preview of some of the most important issues – particularly threshold issues – that that the two cases raise, and of the possible ways in which the Court might rule.

(Again, apologies for a long post!)

Al-Skeini in a nutshell

The case has six applicants. Five of them where killed, or were allegedly killed, by British troops on patrol in UK-occupied Basra (the facts are somewhat more complicated, and one of the applicants before the European Court is not the same as before domestic courts, but this description is accurate enough). The sixth applicant, Mr. Baha Mousa, was arrested by British troops and taken to a UK detention facility, where he was mistreated and ultimately killed. The applicants’ families asked for a full, independent and effective investigation, compliant with Art. 2 ECHR.

The threshold question is whether the applicants were even protected by the ECHR, since the killings took place outside the UK, i.e. whether they were within the UK’s jurisdiction under Article 1 ECHR. (An additional question, to which I will not be devoting any attention, is whether Baha Mousa remains a victim under the Convention, due to remedial action already taken).

There are two main strands of jurisprudence dealing with the extraterritorial application of human rights treaties generally, and the ECHR specifically. First, there is what I will call the spatial model of jurisdiction – that a state possess jurisdiction whenever it has effective overall control of an area. This is the model applied by the European Court in Loizidou, as well as by the ICJ in Wall and Congo v. Uganda. Second, there is the personal model model of jurisdiction – that a state has jurisdiction whenever it exercises authority or control over an individual. This model has been applied in numerous cases before the European Court and the now defunct Commission, e.g. in Issa, as well as by the Human Rights Committee.

The relationship between these two strands of the case law has never been clear, as the whole question of extraterritoriality was never approached in a methodical way, but even what little clarity existed was blown away by the Court’s decision in Bankovic, holding that persons killed outside a state’s territory by an aircraft where not within the state’s jurisdiction, and more generally that extraterritorial application can only be exceptional, and supposedly has to be justified by reference to general international law, for example with regard to embassies. (In my view at least, the Bankovic approach to jurisdiction is at the very least methodologically and conceptually incoherent – see more here).

In Al-Skeini, the House of Lords held that the sixth applicant was within the UK’s jurisdiction, while the other five were not. Applying Bankovic, the House held that:

(1) The spatial model of jurisdiction does not apply outside the espace juridique of the ECHR – a concept introduced but not explained by the European Court in Bankovic, designating the combined territories of ECHR member states. In other words, though Turkey had ECHR obligations to the people of Norther Cyprus because it exercised effective overall control over that area, this was only so because Cyprus was an ECHR state party. According to their Lordships, that reasoning did not extend to the UK in Iraq, because the ECHR is a regional instrument, the imposition of which in Iraq would amount to ‘human rights imperialism.’

(2) Even if the spatial model did apply in principle, the UK had no effective overall control over Basra, despite the fact that it was the occupying power in Southern Iraq, since the strength of the insurgency and the low level of its forces rendered it factually unable to guarantee ECHR rights.

(3) Whatever the validity of the personal model of jurisdiction, Bankovic was clear on the point that a mere killing would not suffice for it to engage. Therefore, the first five applicants were not within the UK’s jurisdiction.

(4) However, the sixth applicant, who was detained in a UK facility and killed there, was in fact within the UK’s jurisdiction, because a military prison has a special status in international law, akin to an embassy. The government conceded that jurisdiction attached on this basis.

On point (1), their Lordships’ reasoning on the spatial model and the espace juridique point has been heavily and rightly criticized – see especially Ralph Wilde’s case note on Al-Skeini in the AJIL and his article on the concept of the ECHR’s legal space in the European Human Rights Law Review, as well as Tobias Thienel’s article in the JICJ.  Technically, the House of Lords put the espace juridique concept to a much more radical use that the European Court did in Bankovic. Likewise, as Judge Bratza pointed out in a question at the hearings, Issa at least is directly contrary to the proposition that the spatial model can only apply within ‘Europe’, and so is probably Ilascu.  More fundamentally, if universality truly is the foundation of human rights, why should it matter that the ECHR is a regional treaty for the purpose of its extraterritorial application, particularly when Article 1 does not say so? Jurisdiction either means control of a territory, or it does not.

On point (2), the issue of whether the belligerent occupation threshold of effective control and the human rights, jurisdiction threshold of effective overall control is a complex one, on which reasonable people can disagree. The threshold should in either case be met only when the obligations imposed could be realistically complied with. In that regard, the English courts have in my view underestimated the flexibility inherent in the positive obligation to secure human rights under Article 1 ECHR, which requires states to do only what they reasonably can, and have thus exaggerated the adverse implications that considering the two thresholds to be the same could potentially have.

On point (3), I think it is fair to say that Bankovic does preclude the application of the personal model to the first five applicants (although they argue that it does not) – but that does not make it any less wrongly decided.

But how are we then to explain the fact that the sixth applicant was within the UK’s jurisdiction? The justification given by the House of Lords – that a military prison is analogous to an embassy – to my mind simply defies common sense. A prison is in no way like an embassy, as I imagine any prisoner would be able to attest, if we say invited him to a cocktail party at an appropriate locale in Belgravia. It most certainly doesn’t have any ’special status’ in international law.

The only thing common to a prison and to an embassy are that they both operate on the basis of the territorial state’s consent. But if this were the reason why the extraterritorial state’s jurisdiction was to exist, not only is there no justification given for why this would be so – one would imagine that non-consensual interventions would generally be more likely to affect the human rights of the population – but consent can be given to many things, like to the presence of foreign forces in general.

What in my view explains the result of Al-Skeini are not the intricacies of the concept of jurisdiction in Art. 1 ECHR, real or imagined, but the tensions in the policy considerations underpinning the law. On the one hand, like the European Court in Bankovic, the English courts in Al-Skeini did not want to open the floodgates of litigation by considering every individual against whom force was used as falling under the protection of the Convention. They did not want to micromanage the use of force in the field, especially when some of the killings in question may even have been justified. On the other hand, however, nothing could have justified the mistreatment and killing of a defenseless prisoner. Baha Mousa simply had to be protected – and this is where the prison somehow became analogous to an embassy.

Al-Skeini: options before the Court

Compared to the House of Lords’ judgment, the Court could do better or worse, and much depends on just how many issues the Court will reach.

Thus, from the standpoint of the spatial model, the Court could do the following:

(1)  Affirm that the effective overall control of an area conception of jurisdiction applies outside the ECHR’s espace juridique, as the Chamber had done in Issa, or, conversely, agree with the House of Lords that the spatial model extends only to the territories of the ECHR states parties – certainly the worst possible result;

(2)  Assuming that the spatial model does apply, the question then would be whether Basra was under the UK’s effective overall control. The Court could either say that the UK’s status as an occupying power necessarily meant that it was in control of Basra, despite all the difficulties that it had encountered, and that hence all six applicants were within the UK’s jurisdiction, or it could agree with the English courts that Basra was not under the UK’s effective control;

(3)  A finding that Basra, was, in fact, an area under the UK’s jurisdiction would dispose entirely of the preliminary question of extraterritorial application. If, however, the Court were to find that Basra was not under the UK’s control, it then may decide to apply the attenuated version of the spatial model as control over places in order to bring Baha Mousa under the UK’s jurisdiction upon his detention, as it did in Al-Saadoon. Doing so, however, would leave outside the ECHR’s scope any events that took place between Baha Mousa’s arrest and his ultimate transfer to the UK detention facility, as well pointed out both by the applicants in their argument, and by Judge Ann Power in a very probing question, in which she asked the government to explain the basis for their concession that Baha Mousa was protected by the Convention.

The possibilities of the spatial model would thus be exhausted, and the Court would then have to examine the case from the standpoint of the personal model:

(1)  It could  reject the validity of the personal model altogether, or narrow its application to some arbitrarily selected exceptional circumstances, and thus exclude all of the applicants from the UK’s jurisdiction, unless it opted to fiddle with the spatial model to protect Baha Mousa, as above; in that regard, as a matter of policy, the problem with the personal model is precisely that it cannot be limited by reference to any non-arbitrary criterion – it simply boils down to the proposition that the state has the duty to respect human rights whenever it has the capacity to violate them;

(2)  In a similar vein, it could adopt the approach of the English Court of Appeal, say that the personal model requires physical custody, and that accordingly only Baha Mousa was within the UK’s jurisdiction; inter alia, it could use its recent Medvedyev gloss of Bankovic as applying only to ‘instantaneous extraterritorial acts,’ which a killing is but detention is not, to justify this result;

(3)  Finally, it could radically depart from Bankovic, and say that the five applicants killed by UK troops on patrol were also under the UK’s control, and accordingly within its jurisdiction. This would in my view be a welcome, but not very likely development, for the reasons given above.

The Court may of course very well surprise us. Whatever it does will inevitably be a consequence of how it perceives the tension between universality and effectiveness on the particular facts of the case, and on their broader policy implications, especially with regard to the personal model.

Al-Jedda in a nutshell

Turning now to the other of the two ‘Al-’ cases heard today, Al-Jedda adds a whole new layer of complexity – or actually two or three. At first glance, the jurisdiction issue is the same as with Baha Mousa in Al-Skeini, and would accordingly be covered by the UK government’s concession, any broader principle notwithstanding. Though Al-Jedda was a shady character detained by British forces in Iraq, he was NOT detained under the law of occupation, nor on a criminal charge in pre-trial detention, as in Al-Saadoon. He was rather detained under the authority granted to the US and UK to detain preventively by the UN Security Council, in Resolution 1546. On the other hand, absent a derogation Article 5 ECHR does not allow for such preventive security detention.

This gives rise to two lines of argument:

(1) First, relying on Behrami, the UK argues that the acts of its soldiers in Iraq, which were there under UNSC authorization, were subsequent to that authorization NOT to be attributed to the UK, but to the United Nations. Accordingly, if the acts of UK soldiers in Iraq were not attributable to the UK, then the UK could not have exercised Art. 1 jurisdiction over Al-Jedda, no more than Turkey could have exercised jurisdiction in Northern Cyprus if it had no soldiers of own controlling the territory.

(2) Second, even if Al-Jedda’s detention was attributable to it, the UK argues that its detention authority prevailed over the Article 5 ECHR prohibition of preventive detention, on the basis of Article 103 of the UN Charter.

In my own view and that of my co-author, Tatjana Papic,  in the view of practically every other author (see, e.g., Kjetil Larsen’s EJIL piece), and most importantly, that of the International Law Commission (see here, at 10), the first of these arguments must be wrong, because Behrami itself was wrongly decided. When Al-Jedda came before the House of Lords, however, their Lordships were somewhat more equivocal. They too thought that it defies reality and common sense to say that the acts of US and UK troops in Iraq are actually attributable to the UN, but they wouldn’t be so undiplomatic as to say that Behrami was wrongly decided. They therefore (in my view, quite unpersuasively) distinguished it on the facts. They then went on to find that the UNSC resolution did in fact prevail over Art. 5 ECHR by virtue of Art. 103 of the Charter, and that its prohibition of preventive detention was accordingly displaced or qualified.

Now, before the Grand Chamber, the UK government has again raised its attribution argument, claiming that on this matter Al-Jedda is indistinguishable from Behrami. And on this they are quite correct – the only difference between Iraq and Kosovo is the existence of UNMIK, a UN civilian presence. The military missions, however, are exactly the same. KFOR is subjected to no more UN control than the UK and US troops in Iraq.

On the other hand, rather than arguing that Behrami was wrongly decided, for obvious reasons of strategic litigation the applicants now maintain that the House of Lords’ distinguishing of Behrami was entirely persuasive, all the while pretending that there nothing wrong with Behrami in the first place, for example by treating it as being perfectly consistent with the ILC’s DARIO, when the ILC itself and its special rapporteur quite openly reject it. In truth, this adds an air of unreality, or a whiff of the Emperor’s new clothes, to the whole proceedings.

On attribution, the applicants do quite rightly point out that saying that the acts of UK forces in Iraq were attributable to the UN would be inconsistent with the European Court’s decision and judgment in Al-Saadoon (this was also pointed out by Francesco Messineo in the comments to this post).

There is a further absurdity here, arising from the UK’s own argument for the invasion of Iraq in 2003 – that it was implicitly authorized by the UNSC to do so – and its present claim that all UN authorized actions are attributable to the UN only and exclusively, rather than to the states which actually carry them out. This would simply mean that our eyes were deceiving us back in 2003 – it was actually the UN which invaded Iraq!

Now, assuming that attribution is somehow out of the way, what of the apparent norm conflict between UNSC Res 1546 and Art. 5 ECHR? International constitutionalists should rejoice! Citing Prof. Rudolf Berndardt in the Simma Charter Commentary, the UK has now argued that the UN Charter is the constitution of the international community, which prevails over other norms.

The applicants, on the other hand, emphasized the European Court’s own qualification of the ECHR as the ‘constitutional instrument of European public order,’ and the ECHR as a self-contained regime, which could give way to other norms only through a derogation. Not only was UNSCRes 1546 an authorization, rather than an obligation, under the Charter, which would render Art. 103 inapplicable, but even if it did apply the Security Council couldn’t just extinguish the ECHR on a whim – the applicants thus raised the specter of the UNSC requiring states to impose the death penalty on terrorists, thereby displacing the ECHR.

In their view, the Court could rely on the ECJ’s decision in Kadi, and say that UNSC resolutions could not affect human rights protections under the ECHR as far as the ECHR itself is concerned. Or, the Court could indeed rely on its own decision in Bosphorus, and say that UNSC resolutions could potentially only displace the ECHR if the UN provided equivalent protection of human rights, which it obviously does not in this particular instance.

Both of these avenues are in my view deeply problematic. The first because the basis of Kadi is the ECJ’s belief that EU law is an independent legal system, which international law can penetrate only on its own (dualist) terms. For the ECJ, the situation was no different than if a domestic constitutional court reviewed domestic legislation against its own constitution. But even if the EU legal system is now exactly that (and I don’t buy that entirely), the ECHR is most emphatically not. As for Bosphorus, the equivalent protection method of norm conflict avoidance can work for norms which are hierarchically equal – in that case, norms binding states under the ECHR and under EU law. But it logically cannot apply if one of the norms – here Art. 103 of the Charter – is hierarchically superior. An inferior norm simply cannot condition when the superior one is to apply.

(For more on all theses issues, see my norm conflict and human rights piece in the Duke JCIL; see also here).

Al-Jedda: options before the Court

So, what can the Court itself do? Logically, it first has to deal with the issue of attribution. If it finds that Al-Jedda’s detention was not attributable to the UK, the case is dead that very instant. If not – we might hear more about how the Court sees itself and the Convention within the fragmented international legal order, and may even witness a clash of competing constitutional visions. Thus:

(1) Attribution

(i) The Court can apply Behrami, and rule that the UK’s acts were attributable to the UN, to predictably massive outcry;

(ii) It can ‘distinguish’ Behrami, just like the House of Lords (probably the most likely result);

(ii) It can actually overrule Behrami, to the great joy of many, but that would not be very likely;

(2) Norm conflict – if option (1)(i) was off the table

(i) The Court can say the UK had no obligation under UNSCR 1546, and that accordingly Art. 103 of the Charter does not apply, or that the resolution and Art. 5 ECHR could somehow be interpreted harmoniously (though they truly cannot);

(ii) It can pull a Kadi, and declare independence from international law, by saying that the ECHR is an autonomous legal order which is unconcerned with Art. 103;

(iii) It can employ Bosphorus, but under the circumstances that would only be a marginally more diplomatic way of doing (ii);

(iv) It can, like the House of Lords, acknowledge the primacy of the Charter and the Security Council, and have the resolution allow security detention under Art. 5 – but that would open the doors for possible abuse in the future.

Whichever way you look at it, the choice that the Court is facing here is not easy. I would say that options (i) and (iv) are more likely, but I may well be wrong. And, unlike the attribution issue, this is certainly not a question capable of a ‘right’ or ‘wrong’ answer in objective terms.

Conclusion

Whatever the Court does, these will be some of the most interesting judgments that it has ever delivered. Not only do both cases pose serious legal and technical questions, they also lead us to ask deeper, more fundamental questions, such as what is actually a ‘constitution’ or an independent legal order. Likewise, both cases pose serious difficulties for the Court, both as a matter of law and as a matter of policy. To a large extent these difficulties are of the Court’s own making, particularly because of its decisions in Bankovic and Behrami. In all fairness to the Court, however, no other court would find them any easier. Now all we have to do is wait and see.

Independently of one’s view of the substantive result, the decision of the Second Chamber of the ECtHR is an embarrassment. There are few long-term issues on the European agenda that are more urgent, more complex and more delicate than the way we deal with the challenging problems of State and Church, religious minorities, the questions of collective identities of Europe and within Europe, and the parameters of uniformity and diversity of our states and within our states. All these issues are encapsulated in Lautsi. All are disposed of, Oracle like, in 11 impatient and apodictic paragraphs. Compare this to the 90 pages of the Supreme Court of the UK in the recent JFS Case, to give but one example.[1]

The European Court of Human Rights is not an Oracle. It is a dialogical partner with the Member States Parties to the Convention, and the legitimacy and persuasiveness of its decisions resides both in their quality and communicative power. The ECtHR is simultaneously reflective and constitutive of the European constitutional practices and norms. When there is a diverse constitutional practice among the Convention States – and there certainly is in this area – the Court needs to listen, not only preach, and to be seen to be listening. In this decision not only does it not engage with the rich jurisprudence, doctrine and practice to be found in many of the Member States, while blithely citing mostly its own decisions, it does not even address some of the issues raised by the defendant state.

The Decision of the Chamber is undergirded by the following breathtaking understanding of the Convention system in matters of Church and State: ‘[t]he duty of neutrality and impartiality of the state is incompatible with any judgment on its part of the legitimacy of religious beliefs or ways of expressing them’ (Recital 47(e)).

The mind simply boggles. What, for example, of a Britain, with its established Church, in which the Monarch is not only the Head of State but the Head of the Church of England, in which schoolchildren might be invited to sing the national anthem (God (oy vey) Save the Queen). Is that very constitutional structure of an Established Church not some kind of judgment that in some way at least Anglicanism is not illegitimate?  Would the UK ever be able to comply with this norm? Is the Court intimating that Britain is to become a France on this issue? May Irish schools no longer teach the Irish Constitution to schoolchildren because the Constitution endorses expressis verbis in its Preamble the Holy Trinity? Must Denmark, like Sweden, abandon Lutheranism as the official Danish Church or hide this fact from its children? One could cite endless other examples. Can one have an established church, or an endorsed church, or a supported church, or a privileged church (one of the many modalities of the non-laique group of states who are, pace the Chamber, still part of Europe), as one does in so many European states, which does not, at a minimum, impinge on the issue of legitimacy of religious beliefs as the Court seems to say no state may?

What is so interesting about the European constitutional doctrinal landscape is that whilst insisting on Freedom of Religion and Freedom from Religion, it allows a rich diversity in the constitutional iconography of the state and different forms of entanglement of religion in its public life: from fully established churches to endorsed churches to cooperative arrangements as well as, of course, to states in which laïcité is part of the definition of the state, as in France.

It is not possible to establish a hermetic border between the symbology of the state which may be religiously imbued and the positive asset of its constitutional law which must respect freedom from religion any more than it is impossible to prevent some spillover from, say, the French laique self-understanding into the classroom. When one prohibits all religious dress in school, rather than allowing all religious dress, is one not making some kind of statement on religious belief?

How one draws the line between the identitarian aspects of the state which might have religious elements and the need for an education which is free and not religiously coercive is an important and delicate issue. But you cannot even begin to draw that line if you do not acknowledge that in Europe there is such a line to be drawn. These issues were raised in the pleadings, but find no echo at all in the decision. 

This is not merely a formal critique of the Chamber’s failure to understand the doctrinal and conceptual field in which this decision is situated. The European landscape which accepts as legitimate a UK and a France, a Malta or Greece or Ireland as well as an Italy, is a unique and uniquely promising model of tolerance and pluralism. You would not guess such from the decision of the Court. The rhetoric of this decision, its underlying sensibility, its omission to acknowledge these distinctions, would be understandable if it were penned by the French Constitutional Council or, for that matter, the US Supreme Court. But not from the ECtHR.

What, then, of the actual holding? In some way the Government of Italy raised the white flag of surrender even before the Court issued its decision by relying exclusively on the argument that the school crucifix was little more than a cultural symbol that transcended or marginalized its original or outwardly religious significance. Still, their argument was not specious. The cross in the ‘Red Cross’ we see on ambulances or in the battlefield are accepted as a symbol of human value that has long lost its identification  with the Christian tradition. And the same is true for the cross which is to be found in many national flags. But context does matter and I think that the Court was right to reject this argument in the context of the classroom. This is especially so when, as is so often the case, the cross in the classroom is not the ‘logo-ized’ simple cross but a veritable crucifix with the body of Christ. But even had Italy won on this argument, it would, in my eyes, have been a pyrrhic victory. In the cultural, social and political circumstance of Europe today one does not want to win on such ground – because it implies that if a symbol still maintains its religious significance, it has no place in the public square. That cannot be a correct reflection of the European constitutional sensibility.

The Court was right to emphasize that the Convention provisions in question should be interpreted in the light of the objective of educating towards a democracy which instils the values of pluralism and tolerance. It is also right to emphasize that in our understanding of Religious Freedom one must emphasize both the positive (Freedom of Religion) and the negative (Freedom from Religion). We may, too, accept its ruling that in the classroom the Crucifix may have a plurality of meanings, but its predominant one is religious. And we may even accept its premise that what the public authority puts on the walls of its schools has an educational impact, at a minimum by validating or invalidating certain world views. 

Does all this lead ineluctably to the conclusion that the Crucifix, as a religious symbol, has no place in the school? It is here that things require very careful and close attention and where we meet the most disappointing aspect of this decision: its failure seriously to grapple – except in ‘knee jerk’ fashion – with the new circumstance of Europe in which these issues suddenly seem pressing.

In a multicultural society, where the principal cleavages are among different religions or different religious denominations, a display in the public school attended by, say, Christians, Jews and Muslims, of the crucifix could be seen as educationally coercive. The remedy in this scenario might be either to remove the crucifix, validating no religion, or to add, as appropriate, say the crescent and the Star of David, validating all equally. One might think that the second option is better since, if handled appropriately, it would offer more hope of teaching a positive lesson of mutual respect and tolerance – especially when one is faced with a majority religion that is not in need of validation and others that are subject to suspicion or scorn. The effect of a naked wall, and a wall which displays all symbols, though formally equal in its neutrality, is educationally very different.

But the Europe of today is not such a multicultural society. In many of our states, the cleavage between, say, religious Catholics, Jews and Muslims, is far smaller than between the ‘faithful’ (whether Jews or Christians or Muslims) and the ‘secular’. Laïcité  is not an empty category which signifies absence of faith. It is often, as in this case, a rich world view, a position of conscience. It is not an indifference to religion. The secularist would find the crucifix as offensive as might the Jew or Muslim. Having on the wall a crucifix, a crescent and a Star of David would be to someone for whom a secular world view was not just a description of absence of religious faith, but a ‘faith’ in its own right, triply offensive.

So what of a naked wall? Easy solution?

Consider the following parable of Marco and Leonardo, two friends just about to start a new school An exciting moment. They live in a place like Abano Terme, the locale where Ms Lautsi lived. Leonardo visits Marco for the first time at his home. He enters and notices a crucifix on the wall at the entrance. ‘What is that?’, he asks. ‘A crucifix – why, you don’t have one? Every house should have one.’ Leonardo returns to his home agitated. His mother patiently explains: ‘They are believing Catholics. We respect them and their beliefs.’ (Or, we don’t believe in such stuff, but we respect their right to believe etc.) ‘Can we have one on our wall?’ ‘No’ would surely be the answer of a firm and decided mother like Ms. Lautsi. And rightly so. It is a secular world view that she wants to impart to her children. Now imagine a visit by Marco to Leonardo’s house. ‘Wow!’, he exclaims, ‘no crucifix? An empty wall?’ He returns agitated to his house. ‘Well’, explains his mother, ‘they are a wonderful family, good and kind and charitable. But they do not share our belief in the Saviour. We respect them.’ ‘So can we remove our crucifix?’ ‘Of course not. We respect them, but for us it is unthinkable to have a house without a crucifix.’ The next day both kids go to school. Imagine the school with a crucifix. Leonardo returns home agitated: ‘The school is like Marco’s house. Are you sure, Mamma, that it is okay not to have a crucifix?’ That is the essence of Ms. Lausti’s complaint. But imagine, too, that on the first day the walls are naked. Marco returns home agitated. ‘The school is like Leonardo’s house,’ he cries. ‘You see, I told you we don’t need it.’ And even more alarming would be the situation if the crucifixes, always there, suddenly were removed.

In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option.  Some countries, like the Netherlands and the UK, understand better the dilemma. The state there is more serious in trying to be neutral or agnostic in the educational area. It funds secular schools and, on an equal footing, religious schools. It is a system that has clear advantages in allowing parents to give the kind of education they choose for their children with equal funding by the state – though, of course, respecting a certain core of civic content. It ensures freedom of religion, in that critical area of education, and allows freedom from religion on an equal footing. It is an option which, apparently, is not available under the Italian Constitution. In any event, I think that there is something noble and educationally challenging in having all kids in the same public school and learning to respect each other in the rich diversity which characterizes our societies. But in the conditions of our societies, the naked public square, the naked wall in the school, is decidedly not a neutral position, which seems to be at the root of the reasoning of the Court. It is no more neutral than having a crucifix on the wall. It is a disingenuous secular canard, the opposite of pluralism, which has to be dispelled once and for all if we are serious about teaching our children, religious and secular, Christian, Muslim and Jew, to live as a harmonious society in mutual respect. Further, to say that the cross is predominantly religious does not mean that it is only that and that Italian history and identity started with, say the French Revolution. Is one to revoke from the public space one’s symbols as if ‘contaminated’ by their religious content? Change the British National Anthem? Amend the first phrase of the German Constitution? On the other hand, the Italian government cannot credibly simply insist on the status quo ante under the unconvincing legal stratagem that the crucifix is nothing more than, or predominantly, a cultural icon. That is nonsense and even committed Christians should rebel against such a reductionist notion of the Christian principal religious icon.

What then should the Court do? It has every right and duty to impose an obligation on states to ensure that their public schools are not a place which is religiously coercive. (Militant atheism is also religiously coercive.) But there is no ‘One Size Fits All’ manner in which this can be achieved. It depends on demographics, tradition, and creative educational solutions.

In every context in which this becomes an issue, public authorities, educational experts, representatives of the different social forces must engage in a conversation of the best means to ensure a school precinct and classroom that will positively show respect for different religions, and not hide them away, as well as equal respect for the secular Weltanschauung. It may require the removal of all crucifixes, of some crucifixes, of none at all. It may require the addition of other religious symbols. It may require a school precinct which reflects the pluralism of society – some rooms with, some rooms without, etc. I am sure that those whose field is education can come up with creative, differentiated solutions – not only lawyers are creative.

By this reasoning, Ms. Lautsi is perhaps entitled to her damages because the Italian government failed to demonstrate that the use of religious symbology in its classroom was part of a credible programme of education for tolerance and mutual respect. It is that which should be the guideline and constitutional imperative of contemporary Europe. 

[1] Length does not ensure necessarily a good decision as that very decision of the Supreme Court proves. But reasoning, even if misguided, is preferable to oracular commands. For a critique of the JFS decision see http://www.jewishreviewofbooks.com/publications/detail/discrimination-and-identity-in-london-the-jewish-free-school-case.

The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber’s judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber’s reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have.

That approach was this: (1) the GC assumed that the villagers were combatants or civilians taking a direct part in hostilities – the position in principle the most favourable to Kononov; (2) it then concluded that the extrajudicial killing of combatants who were hors de combat is not only undoubtedly a violation of the law of war today, but that it was a violation of the law as it stood in 1944 (paras. 202-204); (3) finally, the GC held that at the time the violation incurred individual criminal responsibility (at paras. 205 ff). The most interesting paragraph is 207 in fine:

The Charter of the IMT Nuremberg provided a non-exhaustive definition of war crimes for which individual criminal responsibility was retained and the judgment of the IMT Nuremberg opined that the humanitarian rules in the Hague Convention and Regulations 1907 were “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” by 1939 and that violations of those provisions constituted crimes for which individuals were punishable. There was agreement in contemporary doctrine that international law had already defined war crimes and required individuals to be prosecuted. In consequence, the Charter of the IMT Nuremberg was not ex post facto criminal legislation. The later Nuremberg principles, drawn from the Nuremberg Charter and judgment, reiterated the definition of war crimes set out in the Charter and that anyone committing a crime under international law was responsible and liable to punishment.

The Court thus relied on Nuremberg as evidence of what the law was in 1944. The three dissenters, Judges Costa, Kalaydjieva and Poalelungi, thought otherwise (paras. 13 &1 14):

With regard to “Nuremberg” (the Charter, the trial and the principles), it should be noted at the outset that the whole process began more than a year after the events of the present case. The London Agreement setting up the International Military Tribunal dates from 8 August 1945. The Charter of the Tribunal, annexed to the Agreement, empowered it to try and to punish persons who, acting in the interests of the European Axis countries, had committed certain crimes, including war crimes. Article 6 (b) of the Charter provided the first legal definition of war crimes, and as has been noted in paragraph 6 of this opinion, the national courts took the view that these provisions applied to the applicant. The judgment of the Tribunal asserts that the classification of such crimes does not result solely from Article 6 (b) of the Charter, but also from pre-existing international law (in particular, the 1907 Hague Convention and the 1929 Geneva Convention); however, the question arises whether this declaratory sentence, which is clearly retroactive in effect, should be construed as having erga omnes effect for the past or whether its scope should, on the contrary, be limited to the Tribunal’s general jurisdiction ratione personae, or even to its jurisdiction solely in respect of persons tried by it. This question is crucial, for while the applicant was indeed prosecuted for acts he had allegedly committed or been an accomplice to, he was clearly not acting in the interests of the “European Axis countries” as he was fighting against them. If we rule out the possibility of applying the criminal law extensively and by analogy, it is difficult to accept without some hesitation that the “Nuremberg principles” may serve as a legal basis here.

Historically, then, as is again noted by Judge Myjer in his opinion cited above, it was the Nuremberg trial “which for the first time made it clear to the outside world that anyone who might commit similar crimes in future could be held personally responsible”. Accordingly, we consider that it was not until after the facts of the present case that international law laid down the rules of jus in bello with sufficient precision. The fact that the Nuremberg trial punished ex post facto the persons brought before the Tribunal does not mean that all crimes committed during the Second World War could be covered retroactively, for the purposes of Article 7 § 2 of the Convention, by the definition of war crimes and the penalties attached to them. The “general principles of law recognised by civilised nations” were, in our opinion, clearly set forth at Nuremberg, and not before – unless one were to assume on principle that they pre-existed. If so, from what point did they exist? The Second World War? The First? The War of Secession and the Lieber Code? Is it not, with all due respect, somewhat speculative to determine the matter in a judgment delivered at the start of the twenty-first century? This is a question worth asking.

As Bill Schabas, who was counsel for Latvia in the case, well points out, the three dissenting judges in effect consider that the London Charter was ex post facto legislation and that the IMT would have been a violation of Art. 7(1) ECHR if it were in force at the time. (See also Antoine Buyse’s analysis at the ECHR Blog).

So, would it have been? Logically, the London Charter was either declaratory of pre-existing custom, or a substantive retroactive imposition of criminal responsibility. The position of the IMT itself on this point is ambiguous, as it both stated that the Charter ‘it is the expression of international law existing at the time of its creation,’ and that nullum crimen was a ‘principle of justice’ that was satisfied merely on the count that the defendants knew that what that they were doing was wrong – IMT judgment, at 38-40. In effect, the IMT held that nullum crimen did NOT necessarily mean what the Latin says – that there has to be law criminalizing specific conduct at the time of the offense. This, however, is not an interpretation of the principle that seems to be open under Art. 7 ECHR – and therein lies the rub.

There has always been a tension in international criminal law between the requirements of strict legality and considerations of substantive justice. Time and again, the positive law has proven inadequate precisely when it was most needed. This, in turn, lead judges either to downgrade nullum crimen to a mere ‘principle of justice,’ as was arguably done by the IMT, that would be satisfied even by a showing that the perpetrators of heinous acts knew that what they were doing was wrongful – if not illegal – or to creatively ‘discover’ supposedly pre-existing law to fill in the gap between the factual and the normative, as was done on so many occasions by the ICTY and the ICTR.

To my mind, Kononov is fascinating precisely because it raises the same tension, but this time in a purely human rights context. And thus, though I certainly find the majority’s approach to be pragmatically far more palatable, I wonder whether it is the minority’s opinion which is actually the more intellectually honest.