Today the European Court of Human Rights delivered an important judgment dealing with domestic violence in Turkey. The case is Opuz v. Turkey, Application no. 33401/02, 9 June 2009. The Court found violations of Articles 2 and 3 ECHR, because Turkey failed to fulfill its due diligence obligations to do all that it could have reasonably done to prevent the abuse of the applicant by her ex-husband, who also eventually murdered the applicant’s mother, despite being aware of his violent behavior. Bolder still, the Court found a violation of the prohibition of discrimination in Article 14 ECHR, as it established that domestic violence in Turkey was gender-based, and the Turkish authorities failed to suppress an atmosphere conducive of such violence, even if they had no intent to discriminate themselves. The Court awarded the applicant 30.000 euros in damages, a very significant sum in Strasbourg terms, which will hopefully serve as an incentive to Turkey and other states in Europe with similar systemic problems with domestic violence to work on improving their record.

This week African States Parties to the Rome Statute of the International Criminal Court will meet in Addis Ababa, Ethiopia to assess the work of the ICC in relation to Africa. The meeting is significant as all of the current situations and cases under investigation and being prosecuted by the ICC arise from the African continent. The meeting is convened pursuant to a decision of the Assembly of the African Union (Assembly/AU/Dec. 221 (XII), Feb. 2009). According to that decision, the purpose of the meeting is to:

to exchange views on the work of the ICC in relation to Africa, in particular in the light of the processes initiated against African personalities, and to submit recommendations thereon taking into account all relevant elements.

The decision to convene the meeting arises out of concern and in some cases anger following the request for an arrest warrant for President Omar Al Bashir of Sudan (discussed on this blog here, here, here, here and here)  in relation to the situation in Darfur. The organs of the AU and individual African States have expressed deep concern at that indictment arguing that it will undermine the quest for peace in Darfur. (more…)

The ICRC has just published its interpretative guidance on the notion of direct participation in hostilities. This is a product of many years’ work and several consultations with eminent experts – though of course many experts would not agree on all of the ICRC’s conclusions, which are purely the organization’s own. At any rate, since this is one of the most contentious questions of modern IHL, this study will surely be influential and much discussed. I might post some comments on it once I have had the time to read it.

A hearing will be held this Wednesday before the Grand Chamber of the European Court of Human Rights in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (press release here). A Venice Commission amicus brief is available here. A webcast of the hearing will be available here on Wednesday afternoon.

The applicants are Bosnian nationals, who are respectively Roma and Jewish by their ethnicity. They complain because, despite possessing experience comparable to the highest elected officials, they are prevented by the Constitution of Bosnia and Herzegovina from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. They invoke, inter alia, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 to the Convention (right to free elections) and Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination).

In brief, the Dayton settlement of the Bosnian conflict divided some of the institutions of the state government by ethnicity, so that the three member Presidency must be comprised of one each ethnic Serb, Croat and Bosniak/Bosnian Muslim. Further, one chamber of the Bosnian parliament, the House of Peoples, is comprised of 15 members, 5 of whom have to be from each of the three ‘constitutive’ peoples. The two applicants thus complain that, being Roma and Jewish respectively, they cannot stand for election for either the Presidency or the House of Peoples. In their view, this is clearly prohibited discrimination on grounds of ethnicity.

It is very likely that this will be the first case that the European Court will decide on the merits on the basis of Protocol 12, which introduced a general prohibition of discrimination into the ECHR system. Prior to that, the prohibition of discrimination in Article 14 was only of accessory character, meaning that the legal right or interest in respect of which discrimination was being alleged had to fall within the scope of one of the ECHR provisions. The relevance of this limitation is apparent from the instant case – Art. 3 of Protocol 1 to the ECHR only guarantees the right to vote and to stand for election for a legislature – but the Presidency of Bosnia and Herzegovina is not a legislature. Art. 14 could thus not be invoked in this regard, but Protocol 12 could be, because it sets out a general prohibition of discrimination, in respect of any right set forth by (domestic) law.

As far as the merits of the discrimination claim are concerned, the Court has in its Article 14 jurisprudence established that discrimination constitutes (1) a difference in treatment of persons or groups who are in a similar situation, (2) that has no objective and reasonable justification. In order for there to be such a justification, the treatment concerned must (a) be implemented for the pursuance of a legitimate aim, and (b) must be proportionate to that aim. Further, some grounds of distinction, such as ethnicity, race or gender, are by their very nature suspect, and particularly weighty reasons would have to be adduced by a state to justify them.

If we applied the Court’s test to the present case, there would undoubtedly be a difference in treatment on grounds of ethnicity (1). When it comes to the question whether there is a justification for such differential treatment, there would again undoubtedly be a legitimate aim for it (2(a)) – the establishment and maintenance of peace in post-conflict Bosnia. The question to be decided by the Court, therefore, is whether this distinction is proportionate to that aim (2(b)).

How the Court is going to answer this question is anyone’s guess. Aside from the general problem of commensurability that is inherent in all balancing tests, the proportionality inquiry in the present case clearly requires a value judgment. On the one hand, every liberal atom of one’s being cries out against discrimination based on ethnicity. On the other, there is the indisputable fact that Bosnian society is still markedly divided on ethnic lines (which, of course, measures like the ones above serve to both control and perpetuate). Then there is the whole question of whether an international court sitting in Strasbourg is best called upon to make this value judgment, or whether that judgment should still, for the time being at least, be the province of (what goes for) democratic political process in Bosnia.

At any rate, this is a case to watch.

Joanna Harrington is an Associate Professor with the Faculty of Law at the University of Alberta in Canada, where she teaches constitutional law, international law, and international criminal law. Her scholarship often examines the interplay between international human rights law and criminal law, and international law and constitutional law in general. She has written previously on matters of interim measures, arguing for the application of the ICJ’s jurisprudence to requests arising within the context of communications before the international human rights treaty monitoring bodies: see “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55.

 I wish to thank Dapo Akande, the editor of EJIL Talk!, for the invitation to express my initial (and perhaps hasty) thoughts on yesterday’s decision by the International Court of Justice (see here) concerning Belgium’s request for the indication of provisional measures in the proceedings lodged against Senegal concerning the “obligation to prosecute or extradite” Hissène Habré, the former President of Chad (1982-1990), for the commission of serious international crimes, including crimes of torture and crimes against humanity.[1] Habré has been living in Senegal since he was overthrown in 1990; however, in light of recent statements made by the Senegalese head of state intimating that Habré may be allowed to leave the territory,[2] Belgium sought an order from the ICJ requiring Senegal to ensure that such a departure did not occur. Senegal opposed Belgium’s request, challenging Belgium’s interpretation of the statements made by its President as well as the general admissibility of Belgium’s case, while also arguing that such an order was not needed given the existing controls concerning Habré. By 13 votes to one, the Court declined to make the requested order, finding that:

“the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”[3]

 A key factor contributing to the Court’s decision were the solemn assurances provided by Senegal, both on its own initiative and in response to a direct question put by a Member of the Court during the hearings, that it will not allow Habré to leave its territory before the Court has given its final decision.[4] Credit goes to Judge Greenwood, a recent appointment to the Court, for asking Senegal at the end of the first round of the oral observations whether it would be prepared to give a solemn assurance to the Court that it will not allow Habré to leave while this case is pending.[5] Although Senegal had said as much in its submissions, the question prompted Senegal to solemnly confirm in its closing statement to the Court that:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”[6]

 With this solemn declaration, the denial of Belgium’s request for the indication of provisional measures was a likely result, notwithstanding Belgium’s efforts to suggest that a “clear and unconditional” assurance “could be sufficient” but the need for certain “clarifications” made an order from the Court preferable.[7] The ICJ’s decision may thus be viewed as a non-result in terms of the actual request that was put before the Court, and the fact that the parties were generally in agreement as to the law governing the indication of provisional measures. Nevertheless, the reasoning behind the Court’s order is worth consideration, as are the issues raised in the relatively lengthy dissent of Judge Cançado Trindade, another new appointment to the Court.

 The Existence of a Dispute and the Involvement of the African Union

In addressing a request for the indication of provisional measures, the Court must first satisfy itself that it has prime facie jurisdiction as regards the merits of the case. (more…)

The news of Tom Franck’s death (see here and here) must sadden us all.  Our community of international lawyers has lost one of its greatest scholars.  We have also lost a mentor, and a dear friend.

Readers may be interested in a 2002 EJIL Symposium containing a series of essays which evaluate Franck’s Fairness in International Law and International Institutions (1995)

The International Criminal Court has recently launched a new version of its Legal Tools site. The site contains an invaluable online library on international criminal law which will probably be  the first port of call for those working in this field. According to the release announcing the launch:

The Legal Tools amount to a knowledge-transfer platform for international criminal and human rights law made freely available to the general public through the website of the ICC. The Legal Tools Database is the most comprehensive on international criminal law. It contains more than 40,000 documents, including decisions and indictments from all international or internationalised criminal tribunals, preparatory works of the ICC, case documents from the ICC, treaties, information about national legal systems, and relevant decisions from national courts. The service also contains a new knowledge-base on national legislation implementing the ICC Statute.

The Legal Tools were designed and developed in the Legal Advisory Section of the ICC Office of the Prosecutor by Morten Bergsmo and his team, while a network of outsourcing partners are collecting and registering the documents, metadata and keywords in the Legal Tools Database: the Norwegian Centre for Human Rights (University of Oslo), the Human Rights Law Centre (University of Nottingham), the International Research and Documentation Centre for War Crimes Trials (University of Marburg), the Institute of International Law and International Relations (University of Graz), the T.M.C. Asser Institute, the Hague Institute for the Internationalisation of Law and TRIAL (Track Impunity Always). The Nottingham Human Rights Law Centre has developed the knowledge-base on implementing legislation. The EEAR (European academy of eJustice) is responsible for technical implementation of the Legal Tools Database and Website.

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. (more…)

A prize has been established by the Society of International Economic Law and Cambridge University Press for the best essay submitted on any topic in any field of international economic law.

The Obama administration has just released four new ‘torture’ memos, written by lawyers working in the Office of Legal Counsel of the Department of Justice in the Bush administration. The release of these memos has been long anticipated, and seems to have produced much wrangling within the Obama administration, with the CIA pressing to keep them classified. Some portions of the memos are redacted, to protect the identities of actual interrogators.

The memos are now available at the ACLU website. A statement by President Obama, in which he explicitly states that his administration will not prosecute any CIA interrogator who relied on the OLC advice in good faith, is available here. A similar statement by the Attorney General is available here. I will post more on the memos when I have the time to read them.