Definition of Aggression

First of all, the definition of aggression to be included in the Statute is that recommended by the Special Working Group on the Crime of Aggression prior to Kampala. In other words no changes were made to the text. The definition, which will be Art. 8bis of the Statute, states that:

“For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

The contentious part of this definition was the qualifier, i.e, the requirement that the act of aggression be a ‘manifest’ violation of the Charter. What does that mean? Does it mean an obviously illegal violation, a violation with serious consequences or a violation which is both obviously illegal and serious. This question was not resolved in the text of the amendments but addressed in the Understandings attached to the text. Two of those understandings read as follows:

6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.

7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

 I read this to mean that a breach of the prohibition of the use of force will only amount to aggression where it is a grave violation with serious consequences. There can be debate about whether two of the three criteria of character, gravity and scale would suffice or whether all three are required. The first sentence of Understanding 7 suggests that all 3 criteria must be at work while the second sentence appears to suggest that 2 will do. However, either way, either or both of gravity and scale must justify the conclusion that the use of force is a manifest violation of the Charter. So the seriousness of the consequences of the use of force must be considered.

When will the aggression amendments become operational?

Throughout the negotiations on the crime of aggression there had been a debate as to whether the amendments should come into force under Art. 121(4) or Art. 12(5) of the Statute. The former  requires ratification or acceptance by 7/8ths of the State parties with the amendments then binding on all States parties. On the other hand, the latter states that:

Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.

 Argentina, Brazil and Switzerland submitted a paper in Kampala which attempted to bridge the divide. However, in the end, the review conference, in the resolution that adopted the aggression amendments, decided that the amendments shall enter into force in accordance with Art. 121(5). Apparently, Japan strongly opposed this decision though not strongly enough to block consensus.

 The parties in Rome Kampala seemed to think that it was for them to decide on how the amendments were to come into force. But it is not clear that the “decision” taken in Kampala  that the amendments shall come into force in accordance with Art. 121(5) is in any way binding. Can a State that opposes this decision or an accused person argue that the amendments can only come into force in accordance with Art. 121(4)? It could be argued that an opposing State or defendant can challenged the “decision”, if Art. 121(4) actually applies on its face. Arguably, all that was done in Kampala was to adopt a text (to use the language of Art. 9 of the Vienna Convention on the Law of Treaties) and the adoption of a text does not usually create  legal obligations for States or indeed for the Court and will not allow bypassing of the binding text of Art. 121 as it exists. The alternative view would be that even if Art. 121(5) did not apply on its face, somehow the parties in Kampala have amended that article such that it now applies. Such a conclusion would raise a number of issues of fact and (treaty) law which will require further examination.

In any case, whether the Kampala “decision” to bring the amendments into force by Art. 121(5) is in itself binding or not, the view that Art. 121(5) is the applicable provision is a reasonable one. However, it is by no means an open and shut case and this matter will also require further examination. Art. 121(5) only applies to amendments to Arts. 5,6,7 & 8. The aggression amendments go beyond amendments to those provisions. However, I think a good case can be made that the amendments are all a package intended to bring into effect the ‘new’ crime and that the intention behind Art. 121(5) is that it applies to amendments dealing with the creation of new crimes.

Having decided that the amendments will come into effect under Art. 121(5) the parties decided to impose additional conditions before the Court can prosecute for aggression. The Court may only exercise jurisdiction over aggression committed one year after 30 states have ratified the amendments. Furthermore, the Court’s jurisdiction over aggression will only commence once a decision is made to that effect, after 1 January 2017 by the States parties. The decision is to be made by at least 2/3rds majority. So we will have to wait nearly seven years before the aggression amendments become operational (assuming we have 30 ratifications by then). These conditions apply to prosecutions commenced as a result of state party referral and proprio motu prosecutions (Art. 15bis) as well as to prosecutions resulting from a Security Council referral (Art. 15 ter).

Trigger Mechanisms for Prosecutions for Aggression

The aggression amendments make a distinction between the three trigger mechanisms that exist for ICC jurisdiction. Art. 15bis  deals with referrals by State parties and proprio motu prosecutions by the Prosecutor and Art. 15 ter deals with Security Council referrals. Starting with the latter, all that is required is a referral of a situation by the Council and the Council need not have determined that an act of aggression has taken place.

Art. 15bis was the more controversial provision. It is significant to note that it was agreed that referrals by State parties and proprio motu prosecutors can take place without a Security Council filter. In other words the Security Council need not have determined that an act of aggression has taken place. Moreover though the Security Council can defer an investigation or prosecution under Art. 16 it is not given any additional powers to stop aggression prosecutions.

The other significant features of Art. 15bis is that State parties may opt out of ICC jurisdiction over aggression under this provision and the Court may not exercise jurisdiction over the crime of aggression when committed by a national of a non-State party or on its territory.

Who will be bound by Art. 15bis of Aggression Amendments?

The opt out provision is the most confusing aspect of the aggression amendments. Who exactly  is required to opt out? Once the requisite number of ratifications are reached and a decision is made in or after 2017 to activate the aggression provisions, are all States parties to be regarded as bound such that the ICC has jurisdiction over aggression committed by the nationals of all States parties unless they opt out? Or does the ICC only have jurisdiction over nationals of States parties who have accepted/ratified the amendment unless that State party opts out? Bill Schabas and Kevin Jon Heller appear to believe that the all States parties are bound unless they opt out. So, absent an opt out any national of any State party can be prosecuted for aggression once the amendments come into force. However, I have recently spoken to members of two State delegations at Kampala who take the view that only those States parties that ratify the amendments are bound and that only aggression committed by a State that has ratified the amendment can be prosecuted by the Court, unless they opt out. This latter view would seem to accord with Art. 121(5) that the amendments only enter into force for those States that have ratified or accepted them. Further that provision states, the Court may not prosecute with respect to the crimes committed by nationals of, or on the territory of those who State parties who do not accept.

I doubt if this was thought through in Kampala and I doubt that if asked the specific question I pose in this paragraph, all delegations would have given a uniform answer. It worthwhile noting that the only part of the resolution that adopts the aggression amendments is not conclusive with regard to who needs to opt out. It states that: “any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance.” By referring to opt outs prior to ratification or acceptance it must be referring to those who have not yet ratified or accepted and opens up the possibility that such States need to opt out. However, this clause may also be read as referring simply to the time within which a ratifying or accepting State must opt out, if it wishes to do so. In other words, if a State party ratifies or accepts the amendment and wishes to opt out, it needs to have done so before it ratifies or accept. On this view, the opt outs could still be confined to those State parties who ratify or accept.

But it may be argued that if only those States parties who ratify are bound, why have an opt out provision. Why would a State ratify the amendment only to opt out of jurisdiction? On this view, the opt out provision must be included mainly in relation to those State parties who do not ratify. Otherwise it would be redundant. But this is not necessarily so. The opt out is not redundant even if only those who ratify are bound. For one thing, ratification by 30 States is necessary for the Security Council referral mechanism to come into effect. So a State may wish to ratify to bring that part of the amendment into effect but to opt out of the state referral and proprio motu prosecutions mechanisms. Secondly, a State may wish to bring the amendments into effect generally while excusing itself from ratification prosecution [corrrection]. 

There is perhaps another view that would argue that it is consistent with Art. 121(5) for all States parties who do not opt out to be bound. On this view, one would have to argue that a State party is presumed to accept the amendment unless it opt outs. So only those who opt out are to be regarded as not accepting the amendment and in that way the principle of consent is maintained though consent is presumed.

It will be interesting to see how all of this plays out. In particular, it would be interesting to see what States parties do. It may well be that even those who don’t ratify play it safe, adopt a belt and braces approach, and choose to opt out anyway. But to the extent that many States do this, then this may be considered as practice indicating the view of the parties that those States who don’t opt out are bound. So States parties are in a catch 22 situation: opt out and they may be taken as supporting the view that presumed consent is a valid way of binding States and don’t opt out and a court may find that it has jurisdiction over aggression committed by that State.

Authors, and readers, should rest assured that behind this new electronic front, our editorial staff will continue to provide the personal and individualized attention to journal production for which EJIL is well known and respected.

Martin Trybus is Professor of European Law and Policy and Director of the Institute of European Law at the Birmingham Law School of the University of Birmingham, UK. He is the author of European Defence Procurement Law and European Union Law and Defence Integration and co-edited European Security Law with Nigel White

Chesterman (see here) deals with an interesting aspect of federal US American public procurement law. While touching on certain foreign relations dimensions of the topic, the thought-provoking article discusses domestic rather than international law. However, since the federal intelligence budget of the United States is most probably the largest in the world and privatisation in this area is unlikely to be more advanced in any other country, large parts of his analysis are relevant and important for the rest of the world. Other countries toying with the idea of privatisation of their intelligence services can learn from Washington’s experience accumulated during the last eight years.

The primary objective of public procurement is for the government to acquire whatever goods, works, and services it needs to operate from the private sector. This primary objective is certainly a legitimate motivation for the privatisation of some intelligence services when government agencies are lacking the personnel, know-how, and equipment to provide them. Nevertheless, as most concisely explained by Steve Schooner in “Desiderata: Objectives for a System of Government Contract Law”, (2002) 11 Public Procurement Law Review 99-102, there are a number of other important objectives to be served by public procurement. In any national context the procurement of defence and intelligence supplies and services has to operate within a triangle of three objectives: (1) national security, (2) value for money, and (3) democracy and the rule of law. National security is the objective of the defence and intelligence efforts of any country. Procurement policy and law must ensure that this basic objective is not compromised. The notion of ‘value for money’ requires the procurement process to ensure that the government purchases goods and services under the economically most advantageous terms, most notably at the lowest possible prices without compromising quality and other economic considerations. There is a connection between national security and value for money since the earlier is affected when the security budget is depleted through inefficient procurement and necessary services cannot be provided as a result. Democracy and the rule of law form the basis of a country such as the United States. Not even the national security objective can be allowed to compromise these most basic principles on which any democracy is built. A balance needs to be struck between the three corners of this triangle.

The most striking point highlighted in Chesterman’s article is that the privatisation of intelligence services in the United Sates appears to compromise all three objectives. First, democracy and the rule of law are compromised. Escaping parliamentary and judicial scrutiny are important reasons for privatisation in the first place. Second, value for money is compromised since the private sector operates at higher costs and the necessity of security clearances limits competition to an extent undermining the economic rationale for privatisation in this sector dominated by national security and secrecy concerns. Finally, national security is compromised by the higher costs for intelligence on the one hand and intelligence and know-how being transferred outside the intelligence agencies on the other hand. The public interest enshrined in the three objectives of the triangle does not appear to be served by the current state of privatisation of intelligence services in the United States. It is rather the private interests of the companies providing intelligence services that dominate. The question is: what public interest is served?

The crucial concept of public procurement law discussed in this article is that of ‘inherently governmental’ functions that should not be delegated to private actors. Not only in the United States this or similar concepts represent the borderline between government functions that can be privatised and those which cannot. The definition of what is ‘inherently governmental’ depends to a large extent on the political context. In the United Kingdom, for example, the privatisation of prison services and even military installation has been a regular occurrence through the Private Finance Initiative and Public Private Partnerships. In contrast, many countries in mainland Europe consider these services to be ‘inherently governmental’ and therefore unsuitable for privatisation. It is the opinion of this author that there are intelligence services that are not inherently governmental and hence can be privatised. However, the majority of these services are inherently governmental since they are carried out to serve the public interest and give those who provide them special powers over their own citizens and those of other countries. Event the narrowest of definitions of the notion ‘inherently governmental’ should for example include the interrogation of suspects. If this is not included then the notion is en empty shell and cannot be what the legislator intended. The percentage of 70 per cent of the intelligence budget being spent on the private providers indicates that the borderline set by the concept of ‘inherently governmental’ is not always respected.     

Last week we witnessed the inauguration of a new US President. The administration during which most of the developments discussed by Chesterman occurred is over. In his first executive order as president, Barak Obama already started to limit the phenomenon of the ‘revolving door’. A day after the inauguration the new President announced:      

“We need to close the revolving door that lets lobbyists come into government freely and lets them use their time in public service as a way to promote their own interests over the interests of the American people when they leave.”      

Financial Times, 21 January 2009 (http://www.ft.com/cms/s/0/0f9de7b2-e7f1-11dd-b2a5-0000779fd2ac.html?nclick_check=1)

While admittedly this new policy is directed at lobbyist it can be interpreted as setting the tone for officials of the intelligence agencies transferring to private intelligence companies. This could lead to a ban on public servants in federal intelligence agencies from working for private intelligence companies. The new US President intends a “clean break from business as usual” (Financial Times, ibid.). It remains to be seen but seems likely that this will also break with the practices of privatization of intelligence so skillfully discussed by Simon Chesterman in this article. His analysis might well prove to be useful for the new administration in assessing the kind of business they want to break from.   

Chesterman also explains well the specific problems that the outsourcing of intelligence, as opposed to PMSCs generally, poses for accountability. These are its inherent secrecy, the (perverse) incentives caused by the insertion of a profit motive into intelligence activites, and the difficulty of establishing which intelligence functions qualify as ‘inherently governmental’, and thus not outsourcable. (Not to mention the sheer callousness of some people working in the field, who can come up with a slogan as frivolous as is ‘We Can’t Spy… If We Can’t Buy’, in a Powerpoint presentation no less, that is featured in the title of the article.)

The article of course focuses on the United States, which both wields an enormous intelligence apparatus and where the privatization of intelligence is most pervasive. A question that I would have liked answered is to what extent is the phenomenon of privatization of intelligence (still) confined to the United States, and explained by its own idiosyncrasies. Do we have, for example, have any comparable data on the United Kingdom?

This brings me to my only really substantive comment – at the time being at least, what does international law, as opposed to domestic US law for example, have to say on the privatization of intelligence? I understand that Chesterman did not want to rehearse arguments on, say, state responsibility and PMSCs – in that regard, Chesterman’s and Carsten Hoppe‘s articles complement each other nicely. I would still have liked to see some discussion on what, if anything, international law has to contribute to managing the problems posed by the privatization of intelligence, particularly those of its aspects which do not necessarily apply to PMSCs generally.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers.

Stretching Article 5 of the ILC State Responsibility Articles

Hannah Tonkin makes the compelling argument that especially once we take into account the Commentary to Article 5, we may be able to attribute the majority of guarding and protective services under this clause to the respective hiring state. First, a word of caution may be in order when relying on the Commentaries to the ILC Articles as a source of international law. Although one can make persuasive arguments that they constitute a valuable subsidiary source for interpretation, they should in my view not be taken without further argumentation to carry equal weight as the Articles they accompany.

Second, taking the Commentaries at face value and granting Hannah Tonkin’s argument about Article 5, it would in my mind not apply to guards who are off-duty when violations are committed.  These guards are still not acting in he requisite capacity at the time they engaged in the relevant conduct, and thus still fall through Article 5.

Third, even if we take into account the location of the activity, and the persons for the benefit of whom the functions are executed, the “contextual approach” remains rather complex to wade through. Ultimately I believe it will be very difficult to properly assess whether elements of governmental authority were exercised at the time. Let’s stick with the guarding and protection example in a theater of armed conflict – protection of military officials may be a convincing example, but how about protection of diplomats? Maybe they would also qualify. But would we be willing to extend the reach of the exercise of governmental authority  to the protection of an official of a private firm involved in the reconstruction effort, if the protection is arranged by the hiring state? Moreover, what is the “overall purpose” of guarding and protection in a war zone?

I do believe Hannah Tonkin raises important issues here, but I also believe that the inquiry necessary to attribute under Article 5 is to date still not very clearly mapped out. Moreover, even if we could agree on a clearer test for the exercise of governmental authority in this context, once we add the factual uncertainties inherent in any operation in an area of turmoil. I am not so sure whether it will thus truly be possible to attribute the majority of guarding and protection services provided on behalf of states, as Hannah Tonkin suggests.

A general duty to prevent?

Professor Cryer’s “devil’s advocate” remarks, regarding a broadening of states’ obligations are very thought-provoking. Yet, I am not convinced by his suggestion that recent developments in State responsibility may have led to broader responsibility for failure to prevent actions than the ILC Articles might suggest.

As a preliminary remark, I do not think that there is doubt today in the law of state responsibility, or specifically the ILC Articles, that the violation of a (positive) obligation to prevent gives rise to state responsibility, as expressed for example in Article 1 of the ILC articles. The positive obligation suggested by Professor Cryer seems in my mind very similar in nature to the positive obligations I treat in my piece (although derived from customary international law rather than IHL or Human Rights). As such, it is also subject to the problem regarding the indeterminacy of just how much diligence is “due diligence”. However, just to be clear, such a general duty, if it exists, would not offer a way to get around the rules of attribution, rather it is a completely separate inquiry.

To establish state responsibility, we still need to show that the state either

1) violated a negative obligation, as a person attributable to the state engaged in internationally unlawful conduct (be it an action or omission); or
2) the state failed to meet a positive obligation with respect to the conduct of persons whose conduct is was at the time not attributable to it (e.g. an obligation to prevent)

Unless the question arises whether the conduct of individuals who may have been under a positive obligation mentioned in 2) was actually attributable to the state at the time, this form of state responsibility is independent from the rules of attribution (i.e. the conduct triggering the positive obligation does not have to be attributable to the state).  Of course, there are situations where nevertheless questions of attribution arise. One example would be a scenario where it remains unclear whether individuals who were seen at the scene of a massacre and didn’t do anything to stop it, were actually Ruritanian troops (presumably giving rise to responsibility of Ruritania), or rather frightened civilians.

Regarding Professor Cryer’s Article 16 argument, can Article 16 somehow become a standard of attribution? This would be quite contrary to the ICJ’s jurisprudence under Nicaragua. There is no rule of attribution based on aid or assistance, and knowledge of an offense is in my mind irrelevant to the question of attribution altogether.
Of course, knowledge could be relevant if it would be the trigger for a positive obligation, as discussed by the ECtHR in Osman and Mahmut Kaya.  Similarly, payment to the PMSC could constitute a trigger for a general positive obligation to prevent, however, I do not believe that international law as it stands can be interpreted that way.

Specifically, I am curious how the  Nicaragua judgment could support such a positive obligation. Granted, the United States was held responsible for “its obligation under customary international law not to intervene in the affairs of another State” (Merits, Judgment of 27 June 1986, operative para 3), but this to me seems to have been a violation of a negative obligation (not to interfere) and not a positive one, such as an obligation to prevent rebels from engaging in certain conduct.

As regards the issue of state responsibility in occupied territory, however, I completely agree with Professor Cryer that the occupying power has far-reaching obligations that can give rise to responsibility.

Summing up, it is the uncertainty inherent in approaches such as the ones suggested by Hannah Tonkin and Professor Cryer that leads me to believe that rather than seeking to attribute under Article 5, or putting too much faith into positive obligations, attribution under Article 3 HC IV 1907 and Article 91 AP I remains much more promising in international law as it stands today.

Editors note: Over the coming days we will be discussing (see here) Professor Simon Chesterman’s article: “We Can’t Spy . .  . If We Can’t Buy!: The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions”  (2008) 19 EJIL 1055 (available here).

Simon Chesterman is Global Professor and Director of the New York University School of Law Singapore Programme and Associate Professor of Law at National University of Singapore, Faculty of Law. His publications include:  From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007) (ed. with Chia Lehnardt), Shared Secrets: Intelligence and Collective Security (Lowy Institute for International Policy, 2006)

This piece builds on two discrete areas of research that I’ve been pursuing for a couple of years and are now beginning to intersect.

The first is the privatization of the military and security sector. Building on the project on Global Administrative Law at New York University School of Law, the work that I’ve done with colleagues like Chia Lehnardt has focused on regulation of private military and security companies (PMCs or PMSCs). One product of that research was the book, From Mercenaries to Market, and a key argument was that we need to take the emerging market for force seriously – rather than pursuing the abolitionist approach that had long dominated discussion of this issue within the United Nations.

The second area is the oversight and accountability of intelligence services. I now teach a course on “Intelligence Law” at the National University of Singapore under the auspices of the NYU School of Law Singapore Programme and have written about the difficulty of using law that must normally be public to regulate government activities that must often be kept secret.

The article partly documents the privatization of intelligence, but also suggests the beginnings of an answer to a question that has long dogged debates over PMCs: what can and what cannot be outsourced?

Though it still lags behind the privatization of military services, the privatization of intelligence expanded dramatically with the growth in intelligence activities after September 11. This has seen an enormous increase in the money spent on intelligence (dominated by large items such as spy satellites) but also in the proportion of personnel working on contract. At the CIA’s station in Islamabad, for example, contractors reportedly outnumber government employees three-to-one.

Controversy over government reliance on outsourcing in this area frequently coalesces around issues of cost (a contractor costs on average $250,000 per year, about double that of a government employee), “brain-drain,” and periodic allegations of self-dealing and other forms of corruption. More recently, however, the confirmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain “inherently governmental.” This is, of course, separate from whether such activities should be carried out in the first place.

Privatization of intelligence services raises many concerns familiar to the debates over private military and security companies. One of the key problems posed by such companies is their use of potentially lethal force in an environment where accountability may be legally uncertain and practically unlikely; in some circumstances, they may also affect the strategic balance of a conflict. The engagement of private actors in the collection of intelligence exacerbates the first set of problems: it frequently encompasses a far wider range of conduct that would normally be unlawful, with express or implied immunity from legal process, in an environment designed to avoid scrutiny. Engagement of such actors in analysis raises the second set of issues: top-level analysis is precisely intended to shape strategic policy and the more such tasks are delegated to private actors the further they are removed from traditional accountability structures such as judicial and parliamentary oversight, and the more influence they may have on the executive.

The simplest way of containing some of these problems would be to forbid certain activities from being delegated or outsourced to private actors at all. In the United States, this question is framed in the language of “inherently governmental” functions, which are defined as being “so intimately related to the public interest as to mandate performance by government personnel.” Significant loopholes exist, however. In times of military mobilization, for example, the Defense Department is allowed to determine whether such rules apply to it at all.

Uncertainty in this area appears to be intentional and thus exacerbates the accountability challenges posed by secrecy and problematic incentives for private actors. At the very least, the article argues, the responsibility to determine what is and is not “inherently governmental” should itself be an inherently governmental task.

In the meantime, however, my depressing conclusion is that – even with revelations that U.S. contractors appear to have engaged in torture – reforms seem unlikely to come because of concerns about accountability and links to democratic structures. Rather they are more likely to be driven because each of those torturers cost the U.S. taxpayer double the salary of a Federal employee.

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.

I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!

The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaragua and reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide case said that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point.

Taking the ICJ’s view that State responsibility is still that contained in Nicaragua, recent developments in State responsibility might have led to broader responsibility for States for failures to prevent actions than the ILC articles might suggest. Works like Tal Becker’s Terrorism and State Responsibility take the view that on some issues at least, State responsibility has moved on so (or always was) that a violation of a general duty of due diligence leads to some form of State responsibility for that failure. It would seem, to me, that if this is the case, then there is room for argument that there is State responsibility for failing to exercise due diligence to prevent even off-duty conduct by PMCs employed by a State. After all, he who pays the piper…Lest this be seen as excessively modern, Michael Akehurst, for example, argued back in the 1960s that there were general due diligence obligations on States in relation to rebels, and surely such duties would apply a foriori with respect to those directly paid by the State.

Still, we could push this further, taking into account that a State is responsible for aiding or assisting a violation of international law. Article 16 of the ILC Articles provides that

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State.

This does not deal four square with the question of whether a State can be responsible for aiding or assisting a violation of international law by a non-state actor, as it is based on a State-State relationship, and it might generally be questioned whether we can transfer responsibility issues across any divide which exists. On the other hand, assisting rebels and the like has frequently been held to incur State responsibility, as it did, for example, in Nicaragua.

There is, in my view a strong argument that violations of international criminal law have parallel State and individual responsibility, as the norms apply equally to both (thus dealing with the requirement in Article 16(b) (which would probably apply by analogy)). The Bosnian Genocide case made clear that this was the case for genocide (although some question the conclusion) and it is undoubtedly the case for war crimes (Article IV of the Hague Regulations). I personally have no qualms about crimes against humanity having similarly parallel forms of responsibility, which developed to deal with State policies. The first question will be whether there has been assistance. This will depend on the facts, but allowing PMCs to use facilities, and paying them might do (allowing them to leave the country through airports they control might also do, but the question of whether or not assistance after the fact will do is unclear). The second question will be whether or not any assistance given occurs in a situation in which knowledge could be proved. Continuing to pay PMCs when they have repeatedly engaged in such conduct might lead to a finding of knowledge.

There are other issues, such as the fact that in occupied territories, the overall commander might if the High Command case is to be believed, have quite strong duties in relation to what occurs in that territory, which would certainly encompass that form of liability, and as a result State responsibility for the failings of the commander but that is an issue for another time.

As I said above, these are speculative thoughts rather than definite conclusions, but I hope they stimulate debate.

Editors note: Hannah Tonkin is currently a Law Clerk to President Judge Kirsch in the Appeals Chamber of the International Criminal Court. She is also writing a DPhil at the University of Oxford on States’ International Obligations to Control Private Military and Security Companies.

Carsten Hoppe’s article highlights the regulatory “gap” arising from the application of the traditional rules of attribution to modern private military and security companies (PMSCs) hired by a state in armed conflict or occupation.  According to Hoppe, states that hire PMSC personnel “will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.”  Hoppe points to two main situations in which this accountability gap may arise:

1. Where the private contractor is “empowered by the law of that state to exercise elements of the governmental authority” within Article 5 of the International Law Commission’s Articles on State Responsibility (ILC Articles), but is not in fact “acting in that capacity in the particular instance” when he/she engages in the relevant conduct; and
2. Where the contractor does not fall within Article 5 and is not in fact acting under state orders, direction or control sufficient to satisfy Article 8 of the ILC Articles.

 Hoppe argues that the second category is particularly pertinent to guarding and protective services, since these activities do not conclusively fall within Article 5.  Certainly, in many cases it will be impossible to establish the requisite degree of state control over these PMSC activities to satisfy Article 8 of the ILC Articles, especially if one applies the stringent threshold of “effective control” established by the ICJ in Nicaragua and reaffirmed in the Genocide case.

Yet before placing all reliance on the hiring state’s positive obligations, we should first consider whether the majority of guarding and protective services might in fact fall within Article 5.

There are three requirements for the attribution of PMSC conduct to the hiring state pursuant to Article 5.  First, the PMSC operation must constitute an exercise of governmental authority.  Second, the PMSC must be “empowered by the law of the state” to exercise that authority.  Third, the contractor must in fact be acting in the exercise of governmental authority, rather than in a purely private capacity, in the particular instance when he/she engages in the conduct.

There is no international consensus as to the precise scope of’ “governmental authority”.  The very concept requires value judgments, which themselves rest on political assumptions about the proper sphere of state activity.  Nonetheless, certain functions appear to be commonly regarded as intrinsically public in nature, including policing and detention pursuant to a judicial sentence.  Instinctively, we might think that anything relating to a state’s military or security activities in armed conflict or occupation is inherently governmental.  Yet such instinctive classifications tend to rely primarily on the fact that the activities have historically been carried out by the state, and this becomes increasingly unsatisfactory as military and security functions are increasingly privatised.

The ILC Commentary to Article 5 attempts to provide additional guidance by identifying, in addition to the content of the power in question, three factors which may assist in determining whether a particular power involves the exercise of governmental authority: first, the way in which the powers are conferred on an entity; second, the purposes for which the powers are to be exercised; and third, the extent to which the entity is accountable to the government for the exercise of the powers.

The second factor is particularly helpful in assessing whether PMSC activities entail governmental authority.  This criterion endeavours to capture the notion that governmental authority involves some attempt to fulfil the sovereign objectives of the government, which undoubtedly include, in the words of the preamble to the US Constitution, to “provide for the common defense”.

The inclusion of “purpose” as a relevant factor brings to mind the long-standing debate in the law of state immunity about the appropriate way to identify state activities that are immune from the jurisdiction of another state.  In that context, international law distinguishes between the acts of a state in its sovereign capacity, which are immune from jurisdiction, and other acts performed in a private capacity, which are not immune.  One of the principal justifications for this distinction is that certain disputes involving the sovereign functions of states should be settled on the international plane, whereas other disputes involving the private functions of states are more appropriately decided in municipal courts.  Thus, like the classification of an activity as one involving governmental authority for the purpose of Article 5, the classification of an activity as one involving governmental authority for the purpose of state immunity signifies that it should be assessed on the international judicial plane under the law of state responsibility.  It is in the interests of logic and consistency that similar considerations should apply to both analyses.

Before one can classify a particular activity as governmental or non-governmental in nature, it is necessary to identify the activity with precision.  Any activity can be defined broadly, such as “hiring an armed security guard”, or narrowly, such as “hiring an armed security guard to defend a US military base/military convoy/State Department convoy in a low-intensity conflict zone”.  Whilst both are accurate descriptions, the latter clearly identifies additional information which is legally relevant.  In the state immunity context, the initial task of identification is often said to require one to “distinguish” between the nature and purpose of the activity, and to concentrate only on the former; for if one focuses upon purpose, virtually all state transactions can ultimately be traced back to the public interest.  Yet one cannot draw a clear-cut distinction between the nature and purpose of a particular act.  Commentators often point out, for example, that signing a legally binding contract can be described simply as signing paper unless one considers the purpose of the act.  It is clearly necessary to consider the whole context of the claim against the state.  In this regard, the purpose of the state’s act “is not decisive but it may throw some light upon the nature of what was done”. (I Congreso del Partido, [1983] 1 AC 244, 272)  For example, an examination of the overall context and purpose of the act in question led the UK House of Lords to uphold a state immunity claim in relation to an allegedly defamatory memorandum written by a civilian university professor who was teaching military personnel stationed on a US base overseas.  Lord Hope stated that “[t]he whole activity was designed as part of the process of maintaining forces and associated civilians on the base by U.S. personnel to serve the needs of the U.S. military authorities…On these facts the acts of the respondent seem to me to fall well within the area of sovereign activity.” (Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1577)

One can apply similar considerations to the question of whether PMSCs providing military/security services to a state are exercising governmental authority within Article 5.  Certain PMSC activities which may not necessarily be governmental in nature when viewed in isolation—such as armed guarding services—may in fact entail governmental authority when one considers their overall context.  Relevant factors include the location of the PMSC activity (zone of armed conflict/occupation), the persons whom the activity is provided to benefit (national military/security forces or senior politicians/diplomats) and, as noted in the ILC Articles, the overall purpose of the act.  Applying this contextual approach, a large proportion of guarding and protection services provided in armed conflict or occupation in fact fall within Article 5.

This approach to Article 5 of the ILC Articles can help reduce reliance on Article 8 in establishing the hiring state’s responsibility for misconduct committed by PMSC personnel in the field.  This in turn reduces the pressure on positive obligations to bridge the overall accountability gap between states that hire PMSCs and states that act through their national armed forces.

Editors note: Carsten Hoppe is on the Project Management team of the Priv-War Project  and Executive Director of the European Society of International Law. He is currently writing a PhD, on the same topic as his article, at the European University Institute. He has a JD from the University of Michigan Law School and has previously clerked for Judge Bruno Simma at the International Court of Justice. His article “Passing the Buck: State Responsibility for Private Military Companies”, (2008 )19 EJIL 989 -1014 is available  here.

What makes the video below from the Iraq war more disturbing than the countless others we have seen?

First off, Elvis Presley. The scenes of bullets flying into civilian vehicles are cut to a trivializing soundtrack of “Mystery Train” by the King of Rock ’n Roll. But what may be even more disturbing is that the video does not show a single soldier. Rather, it is attributed to a UK Private Military Company under contract with the United States, an employee of which claims to have shot the video.  Granted, it will be very difficult to assess who is ultimately responsible for the shootings. But this problem is not the end, but rather the beginning of my inquiry. How can it be that private company employees get to drive around in a war zone with assault rifles and machine guns, clearing the road of suspected attackers in approaching vehicles? Is it true that states hiring these Private Military or Security firms [PMSCs / contractors] can outsource their international responsibility by way of a simple contract?

Of course, at present, states are free under international law to outsource functions in armed conflict, such as guarding and protection, interrogation, or even combat, which formerly were in the exclusive domain of soldiers. However, the article and my broader work on PMSCs for the Priv-War Project and my dissertation demonstrate that, while they may spend the money, they are not free to “pass the buck” with respect to responsibility. Thus the most important conclusion of my piece is that where contractors function as armed groups and are responsible to the party through their obligations under a contract, responsibility for all their acts, as first envisaged by states in 1907, will lie for the hiring state.

To get to this point, I first compare responsibility of a state for a classical soldier to all the options for attribution of private conduct. In this analysis, a responsibility gap becomes evident: unless a state outright incorporates the contracted personnel into its armed forces, or the contractors can be regarded as completely dependent on the state (a tough burden of proof to meet), the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.

In a further step, I show that positive obligations of the state under IHL narrow this gap to some degree. The gap closes in international armed conflict with respect to interrogation contractors in POW camps, but the off-duty conduct of combat and guarding and protection contractors would still be checked only by the general duties to vet, train, instruct, and report, and possibly to prevent known ongoing violations. In occupation, the off-duty conduct of contractors providing coercive services may give rise to responsibility of the hiring state where it failed to exercise due diligence in supervising them. In non-international armed conflict, only the general duties to vet, train, instruct, and report could narrow the gap, exposing the state to a substantially lower responsibility risk as compared to the conduct of its national soldiers.

Next I introduce positive obligations under Human Rights Law [HRL]. Adducing positive obligations under HRL to equalize responsibility for contracted personnel exercising combat, guarding and protection, or interrogation services with responsibility for the states’ own soldiers is subject to a twofold limitation: first, limits on the extraterritorial application of the HRL instruments and, secondly, the due diligence nature of the obligations.

Extraterritorial applicability will have to be tested on a case-by-case basis. In the case where the responsibility gap arises, that is where the conduct of contractors is not attributable to the hiring state, the requisite control will have to be exercised by the national armed forces or other state agents, including contractors whose conduct is at the time attributable to the hiring state. Territorial control over the area in which the violation happened may exist by virtue of an occupation or other territorial control, for example during an invasion. Physical control on the other hand, putting individuals in the power of the hiring state, exists for example over individuals who are kidnapped or arrested in an impromptu fashion or detained more formally in a detention facility. All three instruments discussed (ICCPR, ECHR, ACHR) will apply where the hiring state is an occupying power, or where the violations occur in an area controlled by agents of the hiring state. However, where combat contractors are off duty, or guarding and protection contractors engage in conduct outside their instructed duties, and the area they operate in is not controlled by the hiring state, there will not be a basis for extraterritorial jurisdiction unless there is physical control over the victims. Where the victims at the time of the violation either are under the control of the hiring state or have been handed from hiring state control into contractor control, jurisdiction can also be established under all three systems. However, where the hiring state does not have control over the persons interrogated, the off-duty conduct of these contractors will not be within the reach of any of the three instruments I discussed. If applicable, the reach of the duty to prevent under the different instruments varies, as described in more detail in section 3 B of the piece.

Positive obligations of states with respect to the conduct not attributable to them that I discuss under the heading of the obligation to prevent human rights abuses constitute obligations of due diligence. Thus, even if extraterritorial jurisdiction can be established, the hiring state will not be held responsible if it can demonstrate that it exercised due diligence with respect to the contractors’ conduct. Positive obligations of hiring states with respect to conduct not attributable to them are of course important, and may in the specific situations where they are applicable contribute to ensuring that a hiring state will not effectively circumvent responsibility it would incur for soldiers by relying on contractors. Yet, bringing responsibility to bear will be much more difficult due to a multitude of factors, including the limited reach of positive IHL obligations in non-international armed conflict, the uncertainty inherent in the concept of due diligence, and the complex questions extraterritorial application poses in the HRL systems. Thus responsibility qua positive obligations is very far from the simple and effective responsibility rule that states envisaged for armed conflict when they first codified state responsibility for violations of IHL by state forces in 1907.

Thus, still finding the responsibility gap to open up in many cases, I suggest in the remainder of the article that certain contractors exercising coercive functions do not fall into the category of persons accompanying the armed forces. Rather, they can indeed be attributed to the hiring state as members of the armed forces. Where they are organized as a recognizable group and are expected to ‘shoot back’ beyond self-defence on a routine basis, the hiring state will be responsible under Article 3 of HC IV and Article 91 of AP I. Hence, the clearest case will be that of combat contractors, while certain convoy or personal protection contractors may qualify provided they operate as a recognizable independent group. The interrogation example seems most doubtful, especially where the situations resembles more the close integration of a small number of individuals into an operation run by the national armed forces. I furthermore demonstrate that neither the requirement that they be under a command responsible to a party, nor the often adduced criteria for obtaining POW status, ultimately exclude this classification.

To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:

(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;

(2) The (positive) obligation to prevent genocide;

(3) The (negative) obligation not to commit genocide through their own organs or agents.

This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?

According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.

The Court established that the state obligation to punish genocide from Article I was specified and in essence exhausted by the other articles of the treaty – Articles II and III defining the punishable offences, Article IV providing that these offenses shall be punished irrespective of the status of the individuals who commit them, Article V obliging states to enact necessary legislation, and Article VI specifying that persons charged with genocide 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’ whose jurisdiction the state concerned had accepted. Plainly, the contracting states obligations under Article VI are ‘subject to an express territorial limit.’ States are only obliged, at least as far as the Convention is concerned, to prosecute the perpetrators of genocide committed in their own territory, not anywhere else:

The Court would first recall that the genocide in Srebrenica, the commission of which it has established above, was not carried out in the Respondent’s territory. It concludes from this that the Respondent cannot be charged with not having tried before its own courts those accused of having participated in the Srebrenica genocide, either as principal perpetrators or as accomplices, or of having committed one of the other acts mentioned in Article III of the Convention in connection with the Srebrenica genocide. Even if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia’s other international obligations, inter alia its obligation to co-operate with the ICTY, to which the Court will revert below, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from Article VI. Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.
(Genocide judgment, para. 442)

The Court did, however, find Serbia in breach of Article VI for not cooperating with the ICTY, which it deemed to an ‘international penal tribunal’ within the meaning of that article whose jurisdiction Serbia has accepted. According to the Court, this particular obligation under Article VI implies that states will arrest persons accused of genocide who are in their territory, even if the crime of which they are accused was committed outside it, and, failing prosecution of these persons in the states’ own courts, that they will hand them over for trial by the competent international tribunal.

When it comes to the state obligations not to commit genocide and to prevent genocide, the Court found that

The substantive obligations arising from Articles I and III are not on their face limited by territory. They apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question.

(Genocide judgment, para. 183)

The state obligation not to commit genocide or any other acts enumerated in Article III through its organs is not limited by any sort of threshold criterion. Whenever an act prohibited by Articles II and III of the Convention committed by an individual would be attributable to a state under the applicable rules of state responsibility, the state would be in breach of the Convention. Thus, the Court examined whether the July 1995 genocide in the Bosnian town of Srebrenica was committed by organs of Serbia or other persons whose acts were attributable to it, and found that Bosnia was unable to furnish sufficient proof to satisfy the applicable tests of attribution. The fact that the genocide was committed outside Serbia’s territory was simply irrelevant for assessing its responsibility under the Convention. (Genocide judgment, paras. 379, 415).

The obligation to prevent genocide is likewise territorially unlimited. It is an obligation of conduct, not of result, an obligation of states to exercise due diligence and ‘employ all means reasonably available to them, so as to prevent genocide so far as possible.’ The extent of the state’s obligation to prevent genocide depends only on its capacity to influence the actors who are engaged in or preparing the commission of genocide. Thus, the Court found that Serbian authorities were aware of the serious risk of genocide being committed in Srebrenica, that they possessed considerable influence over the Bosnian Serbs forces which committed the genocide, yet that they did not nothing to prevent the massacre. Serbia was accordingly found to be in breach of Article I of the Convention, again regardless of the fact that the genocide took place outside its territory. (Genocide judgment, paras. 430, 438)

When it comes to the obligation to prevent genocide, in his separate opinion Judge Tomka forcefully argued that it should be limited territorially. According to him, ‘under Article I of the Genocide Convention the State does have an obligation to prevent genocide outside its territory to the extent that it exercises jurisdiction outside its territory, or exercises control over certain persons in their activities abroad. This obligation exists in addition to the unequivocal duty to prevent the commission of genocide within its territory.’ As Serbia did not exercise jurisdiction over the Srebrenica area in Bosnia where the genocide was committed, and as it could not be proven that it controlled the perpetrators of the genocide, it could not be held responsible for failing to prevent the genocide.

(Sep. Op. Tomka, paras. 67-68)

In essence, Judge Tomka argued for the imposition of a threshold criterion on the obligation to prevent – state jurisdiction over a territory – which exists, for example, in relation to state obligations under most human rights treaties (on this, see more here). Under his approach, a state would have to exercise effective overall control of an area in which there is a serious risk of genocide being committed by some other actor in order for its obligation to prevent genocide to arise.

Judge Tomka’s approach is certainly more focused than that of the majority of the Court, which basically held that every state in the world has the duty to prevent any act of genocide, no matter where it might occur. One could also say that it is more consonant with the actual practice of states parties, who have hardly shown the inclination to interpret Article I of the Convention as broadly as the Court did.

On the other hand, this approach has no support in the text of the treaty, nor is it based on some more general legal principle, nor, for that matter, can the states parties’ intent to that effect be inferred from the preparatory work to the Convention. As stated by Professor Schabas, ‘while the final Convention has much to say about punishment of genocide, there is little to suggest what prevention of genocide really means. Certainly, nothing in the debates about Article I provides the slightest clue as to the scope of the obligation to prevent.’

It could moreover be argued that states have indeed shown some tendency to read Article I broadly. For example, it is now a matter of historical record that the United States government was reluctant at the time to name the ongoing atrocities in Rwanda as genocide, precisely because that would have implied some legal duty to prevent it. (See W. Schabas, Genocide in International Law, at 72, 405-409; S. Power, A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, 2002), at 358 ff)

The Court’s approach to the territorial scope of the Convention has thus, for better or for worse, proven to be inseparable from its interpretation of the states’ substantive obligations under the treaty. The only truly uncontroversial part of its holding is on the territorially limited scope of the duty to prosecute under Article VI. There is only one question that remains undecided and awaits some future case – whether the obligation to punish genocide is confined solely to those territories over which states have (or claim) title or sovereignty, or whether it also extends to those territories over which they exercise jurisdiction, i.e. effective overall control, either lawfully or unlawfully. Bearing in mind the object and purpose of the Convention, the latter interpretation should be preferred. If we were to transpose the Convention to the time of the Second World War, it would seem positively absurd to state that Germany would have had the obligation to punish acts of genocide committed solely within Germany itself, and that it would not have had such an obligation in respect of Poland or other countries that it had annexed or occupied.

Finally, there is one startling omission in the Court’s analysis of the territorial scope of the Convention – Article XII, the colonial clause:

Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Colonial clauses give the contracting states the freedom of designating those parts of their territories to which the treaty will apply, thereby avoiding the customary presumption in favour of territorial application to all of the territories of a state party, now codified in Article 29 of the Vienna Convention on the Law of Treaties. That does not mean that they necessarily have an impact on the extraterritorial application of the treaty.

How, then, does Article XII fit in with the Court’s interpretation of the treaty? The only reasonable position would be that it applies solely to those obligations under the Convention which are territorially limited, i.e. to the obligation to prosecute perpetrators of genocide under Article VI. In other words, Article XII allows state parties to specify the territories for which they will later legislate by passing criminal statutes and in which they will enforce these statutes through prosecution. It cannot apply to the state obligations to prevent genocide and not to commit genocide themselves, as that would lead to manifestly absurd results – for example, the United Kingdom would not have been able to escape its obligation to prevent the genocide in Rwanda, but it could choose whether or not to prevent genocide in Jersey or the Channel Islands. (On the interaction between the jurisdiction clause and the colonial clause in the ECHR, see generally L. Moor and AWB Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’, 76 BYBIL (2006) 121

Thus, to conclude, in the absence of a firm position in the travaux to the contrary, and in the light of the Convention’s object and purpose, the Court’s fragmented interpretation of the territorial scope of the Convention should be preferred: the obligation to punish genocide is territorially limited and Article XII allows states parties to vary its territorial scope, while the obligations not to commit genocide and to prevent genocide are not territorially limited, but apply in all circumstances. In other words, every state in the world has the duty to prevent genocide, whenever there is a serious risk thereof, and wherever it might happen.

In my next post, I’ll deal with some issues of state succession.