Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.

The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).

We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.

Extra-territorial application of the ECHR

The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction. (more…)

UNTOLD STORIES: HIDDEN HISTORIES OF WAR CRIMES TRIALS

A two-day international symposium to uncover and explore some of the less well-known war crimes trials, both international and domestic.

Melbourne Law School

15^th and 16th October 2010

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School,

and supported by an Australian Research Council Discovery Project Grant

Organizers: Gerry Simpson, Tim McCormack, Kevin Heller, Jennifer Balint

CALL FOR PAPERS

Deadline for Abstracts: 30th May 2010

As international criminal law matures, there has been a return to history.  Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague.  Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on).  Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.

The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials.  As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10.  There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 15th and an informal dinner on the 16th for those who remain in town.

In addition to the organizers, confirmed participants in the symposium include Mark Drumbl and Larry May.  The organizers intend to publish the papers presented at the symposium as an edited book; Oxford University Press has indicated preliminary interest.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 30th May 2010 to Gerry Simpson c/o Cathy Hutton, Administrator, APCML (c.hutton [at] unimelb.edu.au).  Doctoral students are welcome to submit abstracts.

Questions about the symposium can be directed to Kevin Heller (kheller [at] unimelb.edu.au)

Since the election of Ivo Josipovic as President of Croatia in January this year, feelers have been sent by both Serbian and Croatian politicians on the possible mutual withdrawal of claims in the Croatian Genocide case pending before the ICJ, and they have intensified. The Belgrade daily Politika has reported (article in Serbian) that Ivo Josipovic and his Serbian counterpart Boris Tadic are meeting today in Mostar in Bosnia and Herzegovina, and that their main topic of discussion is precisely some form of settlement of the case out of court.

The ICJ litigation is a significant burden on any further development of the relations between Serbia and Croatia, and a joint decision to withdraw the case would be laudable – and not just from the standpoint of good neighborly relations. From its initiation, the case itself has served no other purpose but to buttress the nationalistic narrative of both parties regarding the events of the war in Croatia in the 1990s.

The Court’s jurisdiction rests solely on Article IX of the Genocide Convention, and it can examine no other violation of international law except genocide. In the general public of both Croatia and Serbia, however, the case has for years been presented as about being about the war as a whole, and about reparations for any damages caused by the conflict. Thus, much as with the Bosnian Genocide case, Croatian elites have used the case to further their narrative of a just, defensive war against the Serbian aggression, while Serbian elites emphasized Croatian wrongs against Serbs, from World War II up to the massive expulsion of Croatian Serbs in the 1995 Operation Storm. Whatever their merits objectively, both cases have been politically distorted (see here for more background).

Legally speaking, however, the Croatian case is about genocide and genocide alone – and there was no genocide in Croatia in the 1990s, whether against Serbs or against Croats. None of the atrocities committed there by either party have been qualified by the ICTY as genocide, nor has the ICTY ever come close to doing so, but has generally regarded them ‘merely’ as war crimes or crimes against humanity. And as a soon as a particular crime is not qualified as genocide, the ICJ loses subject-matter jurisdiction to examine state responsibility for this act.

In other words, everybody knows what the ICJ’s judgment would be if it were to decide the case the merits – that there has been no genocide on either side, and that any other internationally wrongful acts are outside its jurisdiction. Rationally speaking, therefore, neither Croatia nor Serbia have anything to gain from continuing the litigation. There is a precisely zero chance of any other result, no matter how able their counsel and advocates. Both Croatia and Serbia are, however, still to a large extent steeped in nationalism, and it is the perception of the case by the general public which remains at odds with the objective reality. The distinction between genocide and other international crimes is lost on most regular citizens, many of whom believe that only the word ‘genocide’ can fully encapsulate the wrongs done against them, whether perceived or real.

I am cautiously optimistic that the Croatian and the Serbian presidents will be able to reach some sort of accommodation – though they each also have to persuade their own elites, and be prepared to take the risk that the withdrawal of the case might politically harm them domestically. This is I think particularly the case with Croatia. We shall see what happens soon enough, but an agreement will not be easy to reach, no matter how irrational that might seem from the outside.

Professor Harold Koh, the Legal Adviser of the US State Department had a keynote speech on Thursday at the ASIL conference in which he for the first time articulated the Obama administration’s legal rationale for its policy of targeted killings, e.g. by drone attacks in Pakistan. As predicted in many quarters, he basically argued that (1) the US is in a state of armed conflict with Al-Qaeda, and that its power to target combatants/belligerents in that conflict (however defined) derives from the law of war; and (2) that the US has the inherent right to self-defense that allows it to target those individuals who engage in attacks against the US.

For reactions to Koh’s speech, see these two posts at IntLawGrrls, here and here, and this post at OJ by Ken Anderson.

Though, like Ken, I think it is admirable that the Legal Adviser has now formally stated the US legal position, that position is in my view still seriously flawed, for one simple reason – it rests on the assumption that human rights law does not apply to the individual being targeted, either because it is displaced by IHL as lex specialis, or because human rights treaties do not apply extraterritorially. Both of these arguments are deeply problematic. As I’ve explained in an earlier post, if human rights law does in fact apply, then the jus ad bellum notion of self-defense in particular is unable to preclude the wrongfulness of any violation of the right to life of the individual in question, just as it would be unable to preclude the wrongfulness of a violation of IHL.

Don’t take me wrong – I am not arguing that targeted killings can never be lawful. Human rights law does permit deprivations of life, so long as they are absolutely necessary. Just as a hostage taker could be shot dead by a SWAT unit, so could a US drone take out Osama bin Laden, if capture was not a feasible option. But human rights law does require a showing of necessity, and I am afraid that the legal justification offered by the Legal Adviser does not grapple with this question. If others are unpersuaded by the claim that human rights treaties don’t apply, then a more meaningful justification will need to be offered to support the lawfulness of targeted killings.

I’d like to commend to our readers’ attention an excellent article by Yael Ronen in the most recent issue of the JICJ on the declaration lodged by Palestine accepting the jurisdiction of the ICC with respect to Gaza, raising the issue whether Palestine qualifies as a state in the sense of the Article 12(3) of the Rome Statute – final version here, SSRN draft here. Here’s an abstract:

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. It argues that there is no justification for such a purposive interpretation, as the ICC Statute already contains an adequate mechanism to deal with exceptional situations such as that of the Gaza Strip. Finally, the article examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition. It argues that taking on the Palestine case would open up a Pandora’s Box and risk turning the ICC into a political playing field for aspirant entities in search of international status.

For what it’s worth, I am personally in broad agreement with Yael’s argument, even if I don’t think that it is in principle objectionable for the ICC or for its prosecutor to address issues of statehood purely as preliminary questions. For a different take than Yael’s, Alain Pellet has prepared a legal opinion arguing that the term ’state’ in Article 12(3) should be interpreted purposefully so as to allow the Palestinian declaration, even if Palestine is not a state as a matter of general international law – see more here on Bill Schabas’ blog. We’ll see, of course, what the Court ultimately makes of the whole thing.

The Editors of the Goettingen Journal of International Law have asked me to post their call for papers for a conference in Goettingen, Germany, in October 2010, at which Judge Bruno Simma will be the keynote speaker. Papers from the conference will be published in the Journal, and a limited number of travel grants is also available. Readers can find more details here.

I am happy to report that my friend, noted international law scholar and EJIL: Talk! alum Andreas Paulus has just been elected as Judge of the Federal Constitutional Court of Germany, the Bundesverfassungsgericht. He has most recently served as Professor of International Law at the University of Goettingen, and is a member of the EJIL’s Scientific Advisory Board.

Many congratulations to Andreas! He is sure to make a strong contribution at the Court, where his international law expertise may prove to be invaluable. And we might just get him to blog for us again sometime in the future.

 Ben Batros is Appeals Counsel at the International Criminal Court and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb, is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice

Last week (on 25 February), the Australian Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] FCAFC 12).  In some respects, this case is part of several emerging trends relating to immunities and human rights. First, it concerns allegations of torture by foreign State officials, including in Guantanamo Bay (see previous EJIL:Talk! posts here and here)   and  Second, it involves an alleged victim claiming damages against a Government, which resonates with the practice in US courts under the Alien Torts Claims Act and the Torture Victim Protection Act (including the Samantar case being heard by the US Supreme Court this week – see post by Julian Ku over on Opinio Juris). Third, a Government has asked the court to throw out the case, arguing that the courts of one country cannot sit in judgment on the acts of the government of another – echoes of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi Arabia in the UK House of Lords, and the pending Germany v. Italy case at the ICJ.

But even though Mr Habib’s claim lies at the intersection of these trends, it does not follow the “typical” model of a civil claim against the agents directly responsible for the alleged abuses; nor does it pursue a criminal prosecution, where questions of immunity have recently formed a less imposing barrier.  Rather, Mr Habib’s lawyers appear to have considered the experience of similar claims abroad, and to have crafted a case which takes into account both the particular opportunities and obstacles presented by Australia’s legislative regime. As a result, the heart of dispute is the scope of the act of state doctrine, not the applicability of state immunity.

Mr. Habib, an Australian citizen, was detained by Pakistani authorities in early October 2001, and transferred to Egypt in November 2001, to Bagram airbase in Afghanistan in April or May 2002, and then to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  During these periods, Mr Habib alleged a range of mistreatments amounting to torture and inhumane treatment which Australian federal criminal law criminalises with extraterritorial (and in most cases universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision).  The Criminal Code also makes it an offence to aid, abet or counsel the commission of a crime.  Mr Habib’s allegations included that Australian police, intelligence and diplomatic officials had visited him during his detention (which was not disputed), been present during questioning, and may even have provided information used in the interrogation (paras. 17-18, 66-67), and the facts if proved might thus found criminal cases against both the foreign agents who conducted the interrogations and the Australian officials who assisted them. 

To circumvent certain procedural requirements for prosecution of these particular crimes, Mr Habib’s lawyers brought a civil action.  However, with the exception of claims under the Alien Torts Claims Act in the US, civil claims for alleged torture at the hands of foreign state officials have previously been held to be barred by state immunity (notably in the UK in Jones v Saudi Arabia), as Mr Habib’s counsel expressly conceded.  So Mr Habib sued the Australian Government for the torts of misfeasance in public office and of intentional infliction of indirect harm by its officials when they aided and abetted his alleged torture. (more…)

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

(more…)

Dr Lorand Bartels is University Lecturer in Law, University of Cambridge. His publications include Human Rights Conditionality in the EU’s International Agreements (2005, OUP) and Regional Trade Agreements and the WTO (co edited with F. Ortino, 2006, OUP)

The European Court of Justice decided an interesting case last week (Case C-386/08, Brita, 25 February 2010). The Hauptzollamt Hamburg-Hafen (the main customs office of the port of Hamburg) had refused to give preferential treatment under the EC-Israel Association Agreement to products manufactured by an Israeli company in the West Bank.The judgment gives the following facts:

32. The German customs authorities provisionally granted the preferential tariff applied for, but commenced the procedure for subsequent verification. On being questioned by the German customs authorities, the Israeli customs authorities replied that ‘[o]ur verification has proven that the goods in question originate in an area that is under Israeli Customs responsibility. As such, they are originating products pursuant to the [EC-Israel] Association Agreement and are entitled to preferential treatment under that agreement’.

33. By letter of 6 February 2003, the German customs authorities asked the Israeli customs authorities to indicate, by way of supplementary information, whether the goods in question had been manufactured in Israeli-occupied settlements in the West Bank, the Gaza Strip, East Jerusalem or the Golan Heights. That letter remained unanswered.

34. By decision of 25 September 2003, the German Customs authorities therefore refused the preferential treatment that had been granted previously, on the ground that it could not be established conclusively that the imported goods fell within the scope of the EC-Israel Association Agreement. Consequently, a decision was taken to seek post-clearance recovery of customs duties amounting to a total of EUR 19 155.46.

One might have thought that the question would hinge on whether the origin of the products fell within the territorial scope of the EC-Israel Agreement (the ‘territory of the State of Israel’). But the Court took quite a different route. It referred to the EC-PLO Association Agreement, which provides for free trade for products from the ‘territories of the West Bank and the Gaza Strip’ and said:

52. Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention.

Is this correct? Recognizing Israeli competence in relation to products originating in the West Bank does not amount to a denial of Palestinian competence over those products. And even if it did, it does not impose any obligation on the Palestinian authorities not to exercise this competence. They remain free to do so, if they can. So this is not entirely convincing.

The more interesting question is why the Court found it necessary to adopt this odd approach to the case. Why not just determine whether or not the West Bank is part of the ‘territory of the State of Israel’ (as did the A-G)? Could this have anything to do with possible future cases involving annexed territories?