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Home International Organisations Archive for category "United Nations"

Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

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Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

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Was the US Entitled to Require the Departure of the (former) Indian Consul?

Published on January 13, 2014        Author: 

For my previous posts on legal issues arising out of the diplomatic incident between the United States and India regarding arrest of the Indian Deputy Consul-General see Part I and Part II

At the end of last week, Devyani Khobragade, the Indian consul arrested in New York last month returned to India, after she was by a federal grand jury (see New York Times and Reuters).

Devyani Khobragade

Devyani Khobragade

Apparently, the US first approved India’s transfer of Ms Khobragade to the Indian mission to the UN, a move which granted her diplomatic immunity, including immunity from prosecution (as discussed in my previous posts – part I and part II). The US then requested that India waive that diplomatic immunity. When India refused that request, the US requested or demanded Ms Khobragade’s immediate departure from the US. In response, India has also requested that the US withdraw one of the members of its embassy in Delhi. Although it is an unfriendly act, it not unlawful for a receiving state to expel a diplomat or consular official of another state. Indeed, this possibility is explicitly provided for in Article 9 of the Vienna Convention on Diplomatic Relations and Article 23 of the Vienna Convention on Consular Relations. Under both provisions, a receiving state may declare a person to be persona non grata, with the effect that the sending state is bound to recall the diplomat or consul, or to terminate their functions in the mission. There is no requirement for the receiving state to give reasons for declaring a diplomat or consul persona non grata and it may make such a declaration because of the official or private conduct of the official, or even for reasons unconnected that with particular person. So, India is within its rights to require the US to withdraw one of its embassy staff, in retaliation for the US’s request that Ms Khobragade leave the US. But was the US entitled to require her departure?

The wrinkle here is that when her departure was requested Ms Khobragade was no longer a consular official of India, accredited to the US but a representative of India to the United Nations. Representatives of states to the UN are not accredited to the US and are not exercising functions in the bilateral relations between the US and that State. Therefore, it would be inappropriate for the state of bilateral relations between the US and a particular country to affect the ability of that country’s representatives to perform their functions with regard to the UN.  The US, as host state to the UN headquarters, clearly has an interest in who is allowed into the US and who can stay in the US. However, if the US could exercise its normal sovereign prerogatives with regard to admission of non-nationals into its territory in determining which person can be admitted to act as representative of a state to the UN, the US would be entitled to determine, without legal restraint, how countries are represented at the UN and be able to affect the capacity of states to enjoy their rights as members of the UN. Read the rest of this entry…

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The Immunity of Representatives to the UN: A New Twist in the Diplomatic Row Between India and the United States

Published on December 30, 2013        Author: 

Part 1 and Part 3

The diplomatic row between India and the United States over the arrest and prosecution of Devyani Khobragade, the Indian deputy consul-general in New York, for visa fraud and violation of US employment laws, continues (see my previous post) but new facts are emerging which may affect a determination of whether the US acted lawfully in arresting Ms Khobragade. India has taken further retaliatory measures against the US by withdrawing some of the privileges enjoyed by US diplomats and their families in the India. It is also investigating possible tax violations by US officials and has  issued new  identity cards to US consular officials in which make it clear to those officials (and to the police) that those consular officials may be arrested for serious offences (see recent New York Times, Reuters and BBC reports). With regard to Ms Khobragade herself, new questions have emerged with regard to the immunity that she may be entitled to. As noted in my previous post, India has, since her arrest, moved her from its consulate in New York to the Indian Mission to the UN, apparently, in an attempt to obtain full diplomatic immunity for her. It has now been asserted that even at the time of the arrest, she was temporarily assigned to the Indian Mission to the UN to assist with work in connection with the General Assembly session (see Reuters report). This may well change the picture as to whether Ms Khobragade was actually immune from arrest at the time.

In my previous post, I discussed the legality of the deputy consul-general’s arrest on the basis that she was only entitled to consular immunity. As noted in that post, consular officials are only entitled to functional immunity from prosecution, i.e immunity in respect of acts performed in the exercise of her consular functions, and may be arrested for grave crimes (pursuant to a decision of a competent judicial authority). However, the position is different with regard to representatives of states to the UN. If Ms Khobragade was already a part of the Indian Mission to the UN when arrested, or if she does become a part of the Indian Mission then the position with regard to the arrest, and with regard to the prosecution might be different from what was first thought.

Let me begin by considering the legality of the arrest of Ms Khobragade in the light of the claim that she was already a member of India’s mission to the UN at the time of the arrest.  Reuters report that

“[s]he was temporarily moved to India’s U.N. mission in August to help with the workload ahead of the General Assembly session and a visit by the prime minister. A copy of her accreditation, made available to Reuters, lists her as an adviser for a period from August 26 until December 31.”

If this is correct then Ms Khobragade might well have been immune from arrest at the time when she was arrested. The reason for this is that Section 11(a) of the 1946 General Convention on Privileges and Immunities on the United Nations provides that “Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions . . .”, enjoy “Immunity from personal arrest or detention”. Read the rest of this entry…

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Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Published on December 20, 2013        Author: 

For a subsequent posts on this issue see part 2 and part 3.

A serious diplomatic row is brewing between India and the United States regarding the arrest  and treatment of an Indian consular official accredited to the United States (see coverage by the BBC, New York Times & the Daily Mail). The brief background to the story is that last week, US Federal authorities arrested Devyani Khobragade, who is the Indian Deputy Consul-General in New York, on charges of visa fraud. Ms Khobragade is accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid. She is also accused of paying the maid less than the minimum wage prescribed by US law. The dispute over her arrest has become particularly acrimonious because it is alleged that not only was Ms Khobragade arrested at her daughter’s school, that she was handcuffed (which is denied by US authorities) and then subjected to a strip-search (which seems to be admitted) (see New York Times piece). Although US Secretary of State Kerry has called the Indian authorities to express regret over the incident, India has demanded an apology from the US and has taken “retaliatory” measures. Those measures include the removal of some privileges previously accorded to US diplomats, a refusal by Indian officials to meet with a US Congressional delegation in India, and perhaps most seriously, the removal of security barricades that were in front of the US embassy in Delhi (see here and here).

This post address three main issues (i) whether the Indian official is immune from prosecution; (ii) whether she was immune from arrest in the first place; and  (iii) the legality of India’s response to the incident. The key legal question that has arisen in this episode is whether the Indian consular official is entitled to immunity from prosecution. Her lawyers have asserted that she is immune from US jurisdiction. It is not clear whether India has similarly asserted that she is immune though India has demanded an apology which suggests that they think the US has done something wrong. Most of the media have reported the US position which is that consular officials, unlike diplomatic agents, are not entitled, under international law, to full immunity from criminal jurisdiction. This is correct. Read the rest of this entry…

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Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

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Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

Published on October 3, 2013        Author: 

Chemical weaponsOn 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. Read the rest of this entry…

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Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…

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Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?

Published on September 18, 2013        Author: 

The Sudanese Government has applied to the United States for a visa that will enable Sudanese President Omar Al-Bashir to attend the United Nations General Assembly session which starts this week (see BBC report here). The International Criminal Court issued an arrest warrant for Bashir in 2009 and whenever he has travelled abroad since then questions have arisen as to whether the host state ought to arrest him or not. The United States is, of course, not a party to the ICC Statute and therefore does not have an obligation to arrest Bashir. With respect to the US two questions arise. First, may the US deny Bashir entry to the US given that Bashir is seeking to attend the UN General Assembly as a representative of Sudan? Second, if Bashir were to be granted a visa and permitted entry, may the US arrest him whilst there for the GA session? I foreshadowed these very issues in the final section of a an article I wrote on Bashir’s Immunities, in the 2009 volume of the Journal of International Criminal Justice. In that piece, I argued that the despite the immunity that Heads of State are ordinarily entitled to under international law, the referral of the Sudan situation to the ICC implicitly made Article 27 of the ICC Statute (which removes the  immunity of state officials) applicable to Sudan. I also argued that “Given that the Statute operates in this case not as a treaty but by virtue of a Security Council resolution it may apply even to non-parties. [Non-parties to the ICC Statute] have no obligations under the Statute to arrest  . . . [h]owever, they have the right to deny immunity as a result of the Security Council’s implicit decision to adopt Article 27” (p. 348). However, I went on to state that:

“Despite the arguments above, there is one set of immunities that may not be removed by the Security Council. These are the immunities of representatives to the United Nations” (p. 351).

After discussing the obligation of the US to confer visas to those travelling to to the US to attend meetings of the General Assembly, I concluded that:

 “ . . . if Al Bashir were bold enough he would not only have the right to represent his state at UN meetings, he would be immune from arrest were he to do so” (p. 352).

The US Obligation to Grant a Visa

The US, as host State to the United Nations has an obligation to permit representatives of member States (and other persons invited to the UN) entry to the US for the purpose of attending meetings of the principal and subsidiary organs of the United Nations. This obligation is derived from three sources which are of increasing specificity in regulating the visa issue. Read the rest of this entry…

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Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Published on September 6, 2013        Author: 

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…

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