Many thanks for your kind comments on my post.

First, a small clarification, he did not make the statement in the context of an interview but in the Courtroom.

Second, regarding your question, as to whether there was another way he could have expressed his personal opinion considering his position as an alternate judge, I tried to point out in my article that the Statute, and more precisely the Rules of the SCSL talk about the alternate judge being “present” but are a bit ambiguous as to what presence means. They do make clear that the alternate is not allowed to vote, implying that presence must mean just being there and following the conversation but nothing more. I also suggested that he could, if he were asked as a matter of judicial courtesy, express his views during the confidential deliberations but that because he is not supposed to act as a fourth judge he had to be content to share those views privately not publicly.

Third, regarding whether he was given an opportunity “to contribute in any way towards the final draft of the judgement?”, as you correctly acknowledged, his role as alternate judge does not permit that under the statute and the rules. And so yes, while as a human being it may be hard to stay quiet, sometimes, as in this instance when he would have known that he was approached to be appointed as an alternate not a regular sitting judge, that silence is really a part of the job description (except of course when he is asked to step in to replace another judge).

That said, I take your point that this is harder to do if he was dissatisfied with the way the deliberations process was being conducted. But the difficulty is that we have no way to verify that. And will probably never know because of the nature of the deliberations process and the necessary secrecy surrounding it.

Don’t get me wrong: I do not at all intend to minimize what may have compelled him to speak out, and again as I have said in the article we will probably never know, but it strikes me as a little odd that we get this type of outcome of a vague public statement when you think about what type of worry that might provoke about the integrity of the legal process in particular for Mr. Taylor but also for the people of Sierra Leone and Liberia.

Finally, as a lawyer who has in fact been privileged to appear before Trial Chamber II, including Alternate Judge Sow, I have a lot of respect for judges, especially those at these international criminal tribunals who sit through complex, long and emotionally exhausting trials that last for years. That he made these remarks at the end does not mean we should diminish the crucially significant role that he played as an alternate judge who might have been needed to step in at a moment’s notice from the opening of the Taylor Trial on June 4, 2007 to its closing on March 11, 2011. His role in that regard was an important contribution to the work of the SCSL, and I will be among those who will be the first to say that we should credit him for that.

Warmly,

Charles

May I now understand you as saying that the conflict for the purposes of Article 103 is that between the ECHR and the human rights law of the Charter? (Whereas you previously said that the conflict was between the right of self-defence and non-Charter HR law.) If so, why is there any conflict between a human right that outlaws only ‘arbitrary’ killing and a more generous right? Surely the efficacy of the former right is not compromised by the fact that there is a second, more generous right. Accordingly, there is no need for Article 103 to apply.

I would also doubt that Article 51 has any relevance at all to the ‘arbitrariness’ test under Article 6 ICCPR. The distinction between the jus ad bellum and the jus in bello is, of course, basic. The fact that a state may be acting in self-defence does not affect the legality of its conduct in war. Article 6 ICCPR obviously refers to conduct in war, not to the use of force as such. Therefore, its standards will not be those of the jus ad bellum. If you disagree, I wonder where you draw the line. Which killing in a self-defence campaign, illegal under the laws of war, is still not ‘arbitrary’ in your book?

(Incidentally, phrases like ‘contextually aware’ and ‘policy-serving’ have a very strong potential of clouding the issue. Any direction to consider ‘all the factors’ – or similar phrases – may lead one to consider the wrong ones. As Lord Hoffmann put it in Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385, para 46, such phraseology ‘simply says that the judge must take everything into account and decide the question, without saying what the question is’.)

In your reply to Dapo’s point, I don’t see you engaging with the question of a ‘conflict’ at all. To repeat, Dapo and I say that because Article 51 is silent as to human rights and IHL claims, there is no conflict on which Article 103 could bite. I assume you stand by your claim of a positive right of self-defence that applies vis-à-vis any prohibition. Dapo has quoted the ILC on this point.

Finally, I think your statement that ‘laws of war do not generally inhibit use of lawful measures self-defense’ is intuitive but factually wrong. Of course it would be more effective to hit the enemy in any way that is physically possible, disregarding the laws of war entirely. It’s just not done because the laws of war are generally accepted, and because they apply equally to acts of self-defence.

I would like to add one more point to Tobais’ point that Art. 51 and the ECHR (or other human rights obligations) do not conflict and therefore Art. 103 of the Charter would not apply to this situation. If you are right in suggesting that Art. 51 displaces all other principles of international law by virtue of the operation of Art. 103, why does Art. 51 not displace international humanitarian law/law of armed conflict. If a State exercising the right of self defence is free from all treaty obligations, would it not be free from the obligations under the Geneva Conventions and Additional Protocols? We know that the answer to that question is in the negative so it cannot be right that an invocation of Art. 51 means that a State is thereby free from all treaty obligations.

I’m afraid I fail to see how Article 103 of the Charter is relevant to this issue. Article 51 applies to justify the use of force, inasmuch as shooting down an areoplane registered in a foreign state is regarded as a use of force against that state (which it frequently is, although this is debatable). Article 51 also justifies (or: precludes the wrongfulness of) any other violation of the rights of the plane’s state of registration (if there is a use of force, presumably there is a prohibited intervention as well). But as Dapo has rightly – and I think cogently – said, Article 51 does not claim to apply to any infringement of human rights. It therefore does not say positively that the UK has a right under the Charter to shoot down the plane. It says only that if the UK does this, it will not be in violation of the prohibition on the use of force or the principle of non-intervention. The human rights claim discussed by Iain does not conflict with this statement of Article 51. Accordingly, Article 103 cannot apply.

I think you are right in saying that ‘more than human rights are at stake’, inasmuch as there are issues under Article 2(4) and the principle of non-intervention. But the fact that these difficulties may be answered by Article 51 does not imply any resolution of the human rights claim. As Dapo has said, Article 51 is silent as to this aspect. Therefore, Article 51 and the ECHR (which I assume to be the source of the relevant human rights) are not in conflict. Article 103 expressly presupposes a conflict; it resolves conflicts between treaties. It is not a shortcut to having the law of the Charter control all other areas of international law.

Our disagreement, in a nutshell, relates to your positing a general ‘right of self-defence’. That right exists, but not vis-à-vis human rights claims, because Article 51 does not extend to them.

Iain,

Still no criticism of your view of the Olympics. Sorry to disappoint.

However, I have just re-read the German case you have mentioned, if only in the slightly unfortunate English translation published by the Court (http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705en.html). I’m afraid I disagree with your understanding of the judgment.

The ratio of the case under the constitutional rights of respect for human dignity and human life, as I understand it, is not that the factual prerequisites could not be definitively established. This point is, admittedly, made at paras 123 to 127 of the judgment, but that would be subject to the facts of each individual case, and para 128 makes it clear that the main problem is

‘that the legislature may not, by establishing a statutory authorisation for intervention, give authority to perform operations of the nature regulated in § 14.3 of the Aviation Security Act vis-à-vis people who are not participants in the crime and may not in this manner qualify such operations as legal and thus permit them.’

This point is made under Article 1(1) of the Basic Law, which enshrines the absolute inviolability of human dignity (see paras 119 to 122 of the judgment). Article 1(1) has been interpreted to mean that a person must not be made a mere object of the actions of the state. The state must always be mindful of the autonomy of the individual. But if a plane carrying innocent passagers as well as terrorists is shot down, the innocent passagers are treated as mere objects, because the treatment given to them by the state bears no relation to their own self-determined actions. As the Court explains:

The desperateness and inescapability which characterise the situation of the people on board the aircraft who are affected as victims also exist vis-à-vis those who order and execute the shooting down of the aircraft. Due to the circumstances, which cannot be controlled by them in any way, the crew and the passengers of the plane cannot escape this state action but are helpless and defenceless in the face of it with the consequence that they are shot down in a targeted manner together with the aircraft and as result of this will be killed with near certainty. Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. [Being killed in order to save others], they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake.

There is no proportionality test here. Indeed, there can be no proportionality test under Article 1(1) of the Basic Law, that fundamental provision being just as absolute as Article 3 ECHR.

It follows that Jordan’s point regarding a SWAT team and hostages in a bank does not meet the Court’s actual reasoning. Hostage-takers can be shot in order to save others, even under German constitutional law. But that is because such treatment is based on the hostage-takers’ own actions. They are not rendered mere objects at the disposition of the state. They are killed, but their status as self-determined individuals is not denied or taken away. Indeed, that is why the Court had no problem with aeroplanes carrying only terrorists being shot down where that is necessary to protect lives on the ground (paras 138 et seq of the judgment).

Incidentally, I recall a German friend telling the then head of the Royal Air Force (Chief of the Air Staff, Air Chief Marshal Sir Glenn Torpy) about this judgment of the German Federal Constitutional Court, and asking whether similar difficulties might prevent the RAF from executing an order to shoot down an aircraft. The Air Chief Marshal had no such qualms.

Darfur comes to mind, but I’m not sure the ICC/OtP actually references the Darfur Report in its decisions.