Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

Kevin goes on to note that the OPCD motion makes arguments similar to his arguments in his Opinio Juris points on the issue and indeed cites his posts. In addition to the filings by these two organs of the ICC, there is a third motion on this question, which was recently filed before the ICC. This is the request by the National Transitional Council of Libya for the ICC to postpone or suspend the obligation to surrender Saif Gaddafi. Libya’s previous requests for postponement of the surrender obligation were rejected by the ICC (see my earlier post). Those requests were made at a time when Libya had not contested the admissibility of the ICC proceedings. However, Libya has now challenged the admissibility of the proceedings against Saif Gaddafi. Libya asserts that the case against Saif and Al Sanussi are inadmissible because Libya’s “national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts  . . .  amounting to crimes against humanity.” Libya’s admissibility challenge changes the picture significantly as it is now entitled to rely on Article 95 of the ICC statute which explicitly applies where admissibility has been challenged.

The question that arises is whether Article 95, which permits postponement of a State’s obligation to cooperate with the ICC extends to the obligation of surrender. Libya (and the OTP) argue that Art. 95 does. Libya argues that interpreting Article 95 as permitting postponement of the obligation of surrender upholds the principle of complementarity. This is a point that I made in my previous EJIL:Talk! post and which I develop more fully in my recent article on this issue published earlier this month in the Journal of International Criminal Justice. Indeed, Libya cites and rely on both my post and on my article.

Of the three motions on the issue of postponement of Libya’s obligation of surrender, only the motion of the OPCD addresses the question of the source of Libya’s obligation to cooperate with the ICC. The OPCD argues that since Libya is not a party to the ICC Statute, it is not entitled to rely on Art. 95 of the ICC Statute. The argument is based on the fact that Libya’s obligation of cooperation is derived not from the ICC Statute but from the UN Security Council resolution that refers the Libyan situation to the ICC. In its previous decisions in the Saif case, the ICC Pre-Trial Chamber has implicitly assumed that Libya is entitled to rely on the exceptions in Part 9 of the ICC Statute to the obligation of cooperation. The OPCD motion invites the ICC to rule on this issue explicictly. In my article, I argue that the SC can indeed impose an obligation of cooperation with the ICC which goes beyond what is in the ICC Statute. However, I also argue that the SC has not (yet) done this, and Libya’s (and Sudan’s) obligation to cooperate with the ICC is an obligation to cooperate in accordance with the ICC Statute. Thus entitling Libya to rely on exceptions within the Statute.

Charles Jalloh is Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and duty counsel to former Liberian President Charles Taylor. He blogs at International Criminal Law in Ferment and we are grateful to him for accepting our invitation to contribute this piece to EJIL:Talk!

1.      Introduction

On 26 April 2012, Trial Chamber II of the United Nations-backed Special Court for Sierra Leone (SCSL) sitting in The Hague, comprised of Judges Richard Lussick, presiding; Julia Sebutinde, and Teresa Doherty, gave their long awaited verdict in the case involving former Liberian President Charles Taylor.

As has been widely reported since, the judges unanimously found Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law perpetrated by the Revolutionary United Front (RUF) rebels acting in concert with the mutinying elements of the Sierra Leone Army known as the Armed Forces Revolutionary Council (AFRC) in the period between 30 November 1996 and 18 January 2002.

Taylor was convicted as a secondary perpetrator, i.e. as a planner and aider and abettor, of murder, rape, sexual slavery, enslavement, other inhumane acts, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, and conscripting or enlisting children under 15 years into armed forces or groups or using them to participate actively in hostilities.

Although the Chamber has not yet issued its authoritative trial judgment setting out the full reasoning behind its conclusions, the judges made some significant factual and legal findings in the 44-page “summary” that Presiding Judge Lussick read out in open court for about two hours. Having convicted Taylor, they fixed 16 May 2012 for an oral sentencing hearing with each of the parties allocated one hour to address the Chamber. Taylor was offered up to half an hour to make a statement, should he so wish. The sentencing judgment will follow two weeks later (on 30 May 2012).

Taylor is the first former President to have been indicted, fully tried and now convicted in an international criminal tribunal since the immediate post-World War II trial of German Admiral Karl Doenitz at the Nuremberg International Military Tribunal. Not surprisingly, many thoughtful legal commentators have already weighed in on key issues raised by the verdict. These include the Chamber’s findings on Joint Criminal Enterprise, Command Responsibility and Gender Crimes (see, for example, Bill Schabas, Diane Marie Amman, Jens Ohlin, Valerie Oosterveld, Kelly Askin).

 2.     An Omission and a Problem

Briefly mentioned by Kirsty Sutherland, Kevin Heller and Bill Schabas, but not as well discussed (with the exception of Jennifer Easterday and Sara Kendall), was the weighty decision of the alternate (fourth) judge in the Taylor Trial, El Hadji Malick Sow, to enter a “dissenting opinion” to Trial Chamber II’s unanimous judgment.

In this post, I examine Alternate Judge Sow’s views on the verdict. I argue that, while his statement gives cause for concern, and ultimately reflects the tension throughout the trial between him and the other three judges, expressing public views on the verdict was unfortunate because the effect might be to impugn the credibility and legitimacy of an otherwise fair trial that met the due process standards of the SCSL Statute and international human rights law.

3.     The Provision for Alternate Judges at the SCSL

In providing for the composition of the Chambers in the Agreement between the UN and the Sierra Leone government on the Establishment of the SCSL, Article 2(2) anticipated the appointment of up to two alternate judges which, upon the request of the President of the SCSL, can be designated by the Presiding Judge of a trial chamber or the appeals chamber “to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting”. The same provision is repeated in Article 12(4) of the Statute of the SCSL.

The Rules of Procedure and Evidence (the Rules) shed further light on the role of the alternate judge. Under Rule 16 bis (A), they confirm that “an alternate judge designated in accordance with Article 12(4) of the Statute shall be present at each stage of the trial or appeal to which he or she has been designated”. Even though the alternate must always be present, under Rule 16 bis (B) to (D), the limited backup role that he is supposed to play is evident. His switch from reserve to active judge also requires a predicate decision by the Presiding Judge after consultation with the other judges.

4.     The Appointment of Judge Sow as the Alternate Judge of Trial Chamber II

The above provisions of the UN-Sierra Leone agreement, the SCSL Statute and the Rules languished in desuetude until Judge Sow was appointed as the first alternate judge. This followed on a recommendation by the late Antonio Cassese, who in the context of a comprehensive expert report evaluating the functioning of the SCSL, observed that the Taylor case was of “central importance to the success” of that tribunal.

For this reason, given that that the case would start much later after the other SCSL trials had been completed and would extend the tribunal’s lifetime, he recommended the appointment of an alternate judge so that the Taylor Trial would “run smoothly and not falter”. Cassese rightly observed that the money spent on an alternate judge that would sit at each stage of the trial to replace a judge who is unable to continue sitting for whatever reason, consistent with Article 12(4) of the Statute of the SCSL, was worth the cost – even for the notoriously cash trapped Sierra Leone court. He warned that the consequences would be worse if the tribunal “gambled” with the continuity of “such an important case” so late in its expected lifespan.

The UN and Sierra Leone took on board the Cassese recommendation, and on 9 May 1997, about three weeks before the Taylor Trial was scheduled to open in The Hague, Judge Sow was sworn in. The press release on the swearing in ceremony at the seat of the tribunal in Freetown, the Sierra Leonean capital, affirmed that he had been appointed, pursuant to Article 12(4), so that he could replace a judge of the Trial Chamber if that judge is unable to continue sitting. Alternate Judge Sow has thus been present throughout the Taylor case, from the prosecution’s opening statement on 4 June 2007 to closing arguments on 11 March 2011.

5.     Alternate Judge Sow’s Verdict: “Dissenting Opinion” or Public Statement?

While it is not known when Trial Chamber II will make the official Judgment available, although this would likely have to be before or around the Sentencing Judgment on 30 May 2012, the unofficial 44-page summary Judge Lussick read on verdict day indicated that there was a “reasoned opinion in writing” but did not mention any separate opinions. What is certain is that, since the Chamber’s verdict was “unanimous”, there will be no “dissenting opinion” from any of its three judges.

Against this backdrop, it was therefore surprising that, after the Presiding Judge concluded delivery of the Chamber’s verdict, Alternate Judge Sow tried to give his “dissenting opinion”. Yet, the SCSL Rules, which are based on those of the International Criminal Tribunal for Rwanda, indicate that although the alternate judge must be present for deliberations, he “shall not be entitled to vote thereat” (see Rule 16 bis(C)). This makes sense since the idea is that the alternate should be able to step in at a moment’s notice, whenever necessary, to ensure the continuity of the trial if, for whatever reason, one of the other three judges are unable to continue sitting. This, of course, was not the case in this instance.

Alternate Judge Sow essentially performs the judicial equivalent of the role of standby counsel in U.S. criminal trials where the accused chooses to exercise his Constitutional (Sixth Amendment) right to self-representation. Standby counsel will follow the trial and step in if the pro se defendant is unable to continue defending his case. In the international criminal tribunals, the provision for alternate judges is also not new and in fact dates back to the origins of International Criminal Law in the immediate post-World War II period. In recognition of the important reserve role that they play during the proceedings, the SCSL Rules permit the alternate judge to pose questions which are necessary for his understanding of the trial but must do so through the Presiding Judge. Alternate Judge Sow asked questions on a few occasions during the evidentiary phase of the Taylor case, but he always addressed the parties directly, rather than “through” the Presiding Judge.

Given the various limitations imposed by the SCSL Statute and Rules, Alternate Judge Sow’s public remarks on the Trial Chamber’s verdict amount to a public statement or commentary, and unlike his contention, does not have the legal character of a “dissenting opinion” – at least as that term is understood under the tribunal’s instruments. True, under ordinary English usage of the term, it is a “dissent” (a term originating from Latin: dissentire, i.e. to ‘differ in sentiment’), because as the Concise Oxford English Dictionary confirms, he expressed “disagreement with a prevailing view or official decision”. While he is clearly entitled to formulate his private views on the sufficiency of the Prosecution evidence against Taylor, the public commentary he gave seems designed, if not in purpose but in effect, to undermine the public confidence in the credibility of the tribunal.

As it seems unlikely that the other judges were aware of Alternate Judge Sow’s plan to “dissent” in court, concerns about propriety might have prompted them to hurriedly depart the courtroom at the same time that his microphone was reportedly cut off. Although the statement extracted below was captured by the Court stenographers, but apparently struck from the official version of the transcript, it was later widely circulated on the Internet:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the Rules, when there is no serious deliberations, the only place left for me in the courtroom.  I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution.  And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure. Thank you for your attention. [Emphasis added].

The preliminary question arises whether Alternate Judge Sow was entitled to give views on Taylor’s ultimate guilt or innocence in Chambers, let alone in public. Rule 16 bis (C) does specify that the alternate judge shall be present “during the deliberations of the Trial Chamber”. At first blush, there is a measure of ambiguity in this provision because mere presence does not imply the right to participate, as an equal, in the deliberations. But the last part of Rule 16 bis (C) does remove that ambiguity because it explicitly says that the Alternate Judge “shall not be entitled to vote” during the deliberations. Consequently, even assuming arguendo that he had been asked during deliberations to offer his take on the evidence, say as a matter of judicial courtesy to a colleague, in the final analysis, he would have had to be content with sharing those views privately because he is not, at the level of principle, entitled to vote on the outcome. Otherwise, we contravene the statute and violate longstanding international criminal tribunal practice which only provides for three professional judges to adjudicate a case.

As an experienced and respected Senegalese jurist, Alternate Judge Sow must surely know that, under Rule 29, “the deliberations of the Chambers shall take place in private and shall remain secret”. Nonetheless, in his above statement, he alleged that he never got the opportunity to express his views in Chambers because there were “no serious deliberations”. Without more detail, and given that deliberations take place in secret, the full weight and implication of his allegation is hard to unpack. It seems obvious that he felt that he should have been given the chance to share his opinion on the prosecution’s evidence against Taylor. That said, besides his own limited involvement presumably because of his statutorily limited mandate as an Alternate Judge, it would be a serious cause for concern if a group of three professional judges, who by the terms of the SCSL Statute must possess the qualifications required in their respective countries for appointment to the highest judicial offices, would convict – and soon sentence – a man for some of the worst crimes known to law without engaging in “serious deliberations”, especially in a complex and historic trial like Taylors.

Yet, for the credibility and legitimacy of the SCSL’s justice process, one should not ignore Alternate Judge Sow’s public comment on the trial verdict because of the serious allegations it makes. For one thing, it is plausible that, fully aware of these limitations imposed by the governing provisions discussed earlier, he had become so concerned about the procedural irregularities and the outcome of the case that adherence to the constraints imposed by the Statute and Rules seemed unworthy at the level of principle. Although highly vague, and perhaps reflecting the best of good intentions, what he has succeeded in doing instead is to invite public speculation about his statement especially considering his remark that: “And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”

All does not seem lost, however, since even Alternate Judge Sow acknowledged that there were some deliberations in the case. His main objection appears to be that they were not “serious” enough to justify the guilty verdict. Although, again, it should be clear that it is possible that there were many more deliberations of which he was simply unaware. Yet, that too does not resolve the alleged mischief because of the legal requirement that he had to be present under the relevant provisions. In any case, perhaps because of his recognition that the decision to speak out publicly about private judicial matters would be controversial, he suggested that he essentially was left no choice but to air his views in the last place possible: the courtroom.

6.     A History of Confusion About the Proper Role of the Alternate Judge

Regrettably, this latest drama in the Taylor Trial regarding the reserve judge is not the exception. Throughout the trial, there appeared to be a fundamental misunderstanding of or even disagreement and discord among the Trial Chamber II judges regarding the function and place of the alternate judge. This does not seem farfetched, considering that Judges Lussick, Doherty and Sebutinde sat alone as Trial Chamber II for years, without any alternate judge, in another SCSL matter in Freetown: the three-accused AFRC Trial (which also happened to be the seminal first case to ever be completed by the SCSL).

On 9 February 2011, Judges Doherty and Lussick, in a majority decision, issued an order directing Courtenay Griffiths, QC, the lead counsel for Mr. Taylor, to appear before the Chamber to apologize for refusing to remain in court when he had been ordered to do so by the Presiding Judge or face the prospect of disciplinary sanction. One of the judges dissented from that directive.

On the date selected for the hearing, 25 February 2011, only Judges Doherty, then presiding, and Judge Lussick and Alternate Judge Sow attended court. Judge Sebutinde refused to show up, sending an explanatory note to her colleagues that morning instead, saying that she had absented herself from court for reasons of principle. This despite that disagreement with a majority decision does not constitute a valid legal reason for a judge to refuse to attend court. She later explained that she was opposed to any “side proceeding” against counsel that could distract the Court and potentially delay completion of the Taylor Case.

The question was how to proceed with the hearing. Presiding Judge Doherty asked counsel to address them on the issue. Defense counsel conferred for less than a minute and then suggested the obvious: the Chamber should invite Alternate Judge Sow, who was present, to participate so that the bench would be constituted of three regularly constituted judges. Judge Sow responded in a way that exposed both his understanding of his role as a reserve judge and the acrimony in chambers:

Let me make this very clear: This Bench is regularly composed with three judges sitting, as it shows. Two judges cannot sign decisions. When the Bench is sitting, it’s sitting with three judges, not two judges, and I don’t know what. I’m not here for decoration. I am a judge. This Bench is regularly composed, as everybody can see. I don’t know how people can think that two judges – I don’t know where in this world you will see two judges sitting. It’s not possible. This Bench is regularly composed with three judges. This is my comment. No matter how parties will look at it, it shows and it’s apparent that this Bench is composed with three judges. We are three judges sitting.

But, in a fluid move showing that Presiding Judge Doherty and Judge Lussick had discussed the matter before court but had foreclosed the possibility of Alternate Judge Sow serving, she did not respond directly. Rather, she immediately issued the Court’s ruling and then adjourned the hearing, as follows:

The Articles governing the composition of this Court and the Trial Chamber mandate that it is to be composed of three judges. This is not a situation where rule 16 applies. Accordingly, in our view, this Trial Chamber is not properly constituted and we consider we have no alternative but to adjourn this hearing today. The matter is adjourned for a date to be fixed. Please adjourn the Court.

This decision can be criticized on several grounds. A key one is that if, as the Chamber found, Rule 16, which spells out the regime applicable to judicial absences, resignations and alternate judges did not apply, then what rule would? The Court did not explain. It instead left the question open, leaving some commentators to speculate what dispute was going on among the judges. And even if, for the sake of argument, we accept that there was a lacuna in the Rules, which as I will argue shortly there was none, could the Chamber not have invoked its inherent powers to regulate its proceedings to then invite Alternate Judge Sow to participate on the Bench so that it was regularly constituted of three instead of two members? Would anyone have faulted them, considering that the party most affected by the disciplinary issue under consideration had in fact proposed the alternate’s involvement?

Be that as it may, under Rule 16 bis (D), the Presiding Judge could have plainly asked Alternate Judge Sow, following consultation with the other judge present, “to perform other such functions” that the Trial Chamber deemed necessary. This could include stepping in when a judge was voluntarily absent, for whatever reason. This argument would hold, despite the seeming difficulty that Rule 16 bis (D) had been adopted on 14 May 1997, exactly five days after Alternate Judge Sow had been sworn in as judicial alternate for Trial Chamber II.

On the other hand, by comparison, the SCSL Rule on the point is somewhat less clear than its functional equivalent in the Extraordinary Chambers in the Courts of Cambodia (ECCC). In the ECCC, Rule 77(8) more clearly sets out what to do in the scenario that Trial Chamber II found itself when it provided that:

In the absence of a sitting Judge, the President of the Chamber may, after consultation with the remaining judges, decide to adjourn the proceedings or designate a Reserve Judge to sit in place of the absent Judge to ensure that the proceedings can continue. Where, however, the replaced sitting Judge is able to attend, the Chamber may, after taking into consideration all factors relevant to the case and being satisfied that the sitting Judge has been fully informed of the evolution of the case during his/her absence, decide to replace the Reserve Judge by that sitting Judge.

Either way, whether under the SCSL or ECCC rules, the conclusion would have been the same. In fact, as the defense counsel later argued in a motion, the Chamber’s “outright” and “abrupt dismissal” of Alternate Judge Sow’s offer to step in was problematic at best, and at worst, raised questions about the proper exercise of their “discretion”. Arguably, it was in fear of losing a judge’s participation and disrupting the Taylor Trial and any ancillary matters arising from it that the President of the Tribunal had designated Alternate Judge Sow pursuant to Article 12(4) of the SCSL Statute. It would have been the same reason why all the SCSL’s judges, sitting together in Plenary, would have adopted the amendment to give practical effect to that intention under Rule 16 bis only a few days after the alternate judge was sworn in.

7.      Conclusion

In the end, lacking any legal value, Alternate Judge Sow’s public condemnation of the unanimous Trial Chamber II verdict serves only as cannon fodder for the pro-Taylor camps in Liberia and Sierra Leone who have always contended that his trial, and since 26 April 2012 conviction, was politically machinated. It gives credence to a frequently alleged, but equally frequently unsubstantiated, conspiracy theory that the same Western States responsible for Taylor’s fate today conspired to witch hunt other “strong” African leaders like Sudanese President Omar Al Bashir. Bashir stands indicted for genocide and crimes against humanity by the International Criminal Court, but partly because of this same argument and the lack of clarity in certain provisions of the Rome Statute, African States have collectively refused to turn him over to the ICC. What is often omitted out of this narrative is that it is also Africans that are the victims of the massive atrocity crimes committed by their own people, and also other Africans, who call for international support to ensure that the old culture of “big man” impunity is replaced with a new culture of judicial accountability. In this broader geopolitical context, the extrajudicial comments in the Taylor Case may serve only to undermine the positive legacy of accountability that President Ahmed Tejan Kabbah of Sierra Leone and UN Secretary-General Kofi Annan hoped the SCSL would bequeath to the people of Africa and the international community.

Call me cynical, or at least bitter and twisted, if you like.   I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs.  With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken?  This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.

So I, for one, am dreading the descent of the Olympics on London later this summer.  I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team.  It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower.  It is a constant reminder of dread.  A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).

Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government.  Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.

Oh really?  Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London.  And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner.  And it too will be televised.  Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place?  Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights.  Are these, once again, to be swept aside without comment by alleged considerations of “security”?  Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear?  Is this just one more step to dystopia?

I must admit that I am surprised that lawyers have been silent because we have been here before.  In 2006, the German Federal Constitutional Court ruled that section 14.3 of the 2004 Aerial Security Act was unconstitutional.  This provision empowered the Minister of Defence to order a civilian passenger airline to be shot down by the military if it could be assumed that the aircraft would be used to kill others, and that this could only be prevented by shooting it down.  (See: N.Naske and G.Nolte, “Aerial Security Law.  Case No.1 BvR 357/05.  115 BVerfGE 118″, 101 AJIL 466 (2007); and commentaries in the German Law Journal by O.Lepsius, “Human dignity and the downing of aircraft: the German Federal Constitutional Court strikes down a prominent anti-terrorist provision in the new Air-transport Security Act”, (2006) and F.Muller and T.Richter, “Report on the Bundesverfassungsgericht’s (Federal Constitutional Court) jurisprudence in 2005/2006”, (2008) at 184–193).

The Constitutional Court could simply have based its ruling on a separation of powers issue—that, under the German Constitution, the federal government does not have the power to deploy the armed forces domestically except for defensive purposes against military attacks per se—but it also proceeded to rule that the legislation violated the fundamental rights to human dignity and life guaranteed by the Constitution because:

 it allows the armed forces to shoot down aircraft aboard which there are people who are victims of an attack on the security of aviation.  This provision is unobjectionable only so far as measures are directed against unmanned aircraft or against those who are responsible for the attack. (para.118: Naske and Nolte translation, 101 AJIL 467 (2007))

The Court ruled that, under the Constitution, human dignity was a value inherent in everyone which the State could not violate, even when acting in pursuit of the right to life:

the duty to respect and protect human dignity generally forbids making any human being a mere object of the actions of the state.  Any treatment of a human being by the state that—because it lacks the respect for the value that is inherent in every human being—would call into question his or her quality as a subject, [his or] her status as a subject of law, is strictly forbidden. (para.121: Naske and Nolte translation, 101 AJIL 467 (2007))

In reaching this decision, the Constitutional Court implicitly employed a test of proportionality which requires that the measure under scrutiny must be shown to be pursuing some legitimate end, and the means used to do so must be suitable, necessary and appropriate or fair.  The Court found the statutory provision to be disproportionate because it could not achieve the end it claimed to pursue: the information that a passenger aircraft was to be used as a weapon could never be definitive at the time when the Minister of Defence ordered its destruction.  This order could only be given on the basis of a presumption, not a certainty, and this could not justify depriving the passengers of their human rights.

When courts attempt to balance issues of security against the values embedded in human rights norms, one may legitimately wonder if judges are attempting the impossible by trying to weigh incommensurables.  As the Aerial Security Law judgment demonstrates, however, reliance on factual considerations in assessing the efficacy of a proposed measure evaluates it on the basis of its own assumptions and can avoid or negate a conflict between fact and value.  It also throws into relief one facet of cases involving governmental action in response to terrorism and threats to national security: whether these threats exist is essentially a factual, and not a normative, question.

Nevertheless, the judicial scrutiny of national security claims involves inherent difficulties.  As Lord Walker of Gestingthorpe observed in the Belmarsh detainees case,  this process is:

heightened by the secrecy which necessarily attends most issues of national security…a portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government.  Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant. (A (FC) and others (FC) v Secretary of State for the Home Department [2004] UKHL 56, 84, para.193)

No one has apparently claimed that the deployment of surface-to-air missiles as a deterrent measure to “protect” the Olympic Games may be seen as action taken during an armed conflict, for instance, some deemed “war on terror”.  Its legitimacy therefore surely falls to be determined by reference to human rights law.  What seems to underpin this current proposal is some crude utilitarianism—that it is better to shoot down a plane, inevitably killing those on board, in order to prevent greater casualties on the ground.  But two imponderable factors are missing from this calculation.  If a plane is shot out of the sky, then the debris has to fall somewhere.  In December 1988, when Pan Am flight 103 came to earth in or near Lockerbie, which is a small town in an essentially rural area, there were ground casualties.  One should expect that these would be much magnified if a plane were to fall out of the sky over London.  But, apart from these unknown secondary ground casualties, there is an even more profound objection to this utilitarian calculus.  It entails an impossible comparison.  While the deaths of those on board the plane are certain, any ground casualties are contingent—they might be expected, but they are not definite.  As the Federal Constitutional Court ruled, at the time when an order to shoot down a plane must be given, the fact that it is to be used as a weapon is conjectural.

As you may gather, I am not reassured by the deployment of these weapons.  I also fail to see how this might deter, and worry that it only throws down a gauntlet for an unpleasant television spectacular which would, undoubtedly, unofficially close the London Games.

]]> http://www.ejiltalk.org/surface-to-air-missiles-to-be-deployed-at-the-olympics-one-more-step-to-dystopia/feed/ 12 http://www.ejiltalk.org/goettingen-journal-of-international-law-essay-competition-the-interplay-of-international-and-national-law/ http://www.ejiltalk.org/goettingen-journal-of-international-law-essay-competition-the-interplay-of-international-and-national-law/#comments Thu, 10 May 2012 08:46:47 +0000 Dapo Akande http://www.ejiltalk.org/?p=4960 The Goettingen Journal of International Law (GoJIL) has just announced the topic for its an annual International Law Essay Competition. This year’s topic is “The Interplay of International and National Law”. GoJIL is the first student-run journal in the field of International Law in Germany. Published, since 1999, the journal aims to foster debate among scholars of diverse fields in International Law and related disciplines. The backbone of GoJIL is formed by the Editorial Board, a group of enthusiastic students and scholars from various academic disciplines. The stated aim of the journal  is ”to give young scholars the chance to gain practical experience and  make their own professional scientific publication with GoJIL.”

The call for papers for this year’s essay competition reads as follows:

In our current global political and legal system, international law does not only influence national law, but also depends on it. Can national law set borders for the content of international treaties or does it become more flexible as treaties force interaction with other judicial systems? Can it be used to settle conflicts between national powers? How are treaties, both bi-lateral and multi-lateral, implemented on the domestic level? What is the impact of UN Security Council Resolutions or Human Rights agreements on States’ law and politics? These are just a few of the numerous questions you could raise and address in your essay.

The deadline for your submission is 15 August 2012. The maxim word count is 3 000 words (without footnotes).

If you would like to write an article or are already working on the subject, send in your essay! The best article will be published in the Goettingen Journal of International Law – GoJIL Vol 4 No 3. If you have any questions, please write to info {at} gojil(.)eu or visit the journal’s website

Greece’s debt restructuring in February/March 2012 was the first to be implemented under the umbrella of a large number of CDS (more than 2.5 billion Euros in net terms).  During the implementation phase of the Greek restructuring in March 2012, several interested market participants raised the question whether the Greek restructuring triggered an obligation for the sellers of CDS on Greece to pay. The Determinations Committee (DC) of the International Swaps and Derivatives Association (ISDA) for Europe, Middle East and Africa, the body established by ISDA and given decision-making power under the ISDA documentation to rule on credit events,  found that a restructuring credit event was triggered on March  9 2012.  The parties to CDS have agreed by contract that a credit event occurs only if the competent DC has said so.

As the Greek restructuring in February/March 2012 demonstrated, the consequences of such expert determinations by DCs can be momentous in financial terms not only for the parties to CDS transactions themselves, but also for the broader public and for taxpayers. A case in point is the Austrian bank KA Finanz, the bad bank split off from Kommunalkredit, the comparatively small Austrian lender to municipalities previously owned by Dexia that the Austrian government nationalized at the height of the global financial crisis. KA Finanz had taken over about 500 million Euros of CDS on Greece from Kommunalkredit. As a result of the payouts following the March 9 decision, the Austrian government had to inject another 1 billion Euros into the bank in order to stave off its collapse.

DCs recruit their members from among financial institutions and investment managers, which will often have positions on either side of CDS transactions. In view of their composition and the considerable practical importance of their decisions, concern has arisen that DC members may be tempted to “vote their own book” – i.e. to reach credit determinations in part based on whether the firm is on the buying or selling side of CDS for a particular reference entity.  For instance, two members of the Steering Committee of the Institute of International Finance  which negotiated the restructuring of Greek debt on behalf of private creditors of Greece, are voting members of the DC for Europe (BNP Paribas and Deutsche Bank). They were net sellers of CDS protection on Greece, meaning that both institutions had to pay out to protection buyers when the credit event occured. Given these concerns about independence of DCs and the right to a fair trial in civil matters under Article 6 of the European Convention, it is an open question whether competent domestic courts could in effect review decisions and potentially overturn decisions of DCs.

The ISDA Master Agreement provides:

“With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably (i) submits

(1) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive jurisdiction of the English court if the Proceedings do not involve a Convention Court and (B) the exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; or

(2) if this Agreement is expressed to be governed by the laws of the State of New York, to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City.”

How do the responsibilities of DCs relate to the otherwise competent national courts? The ISDA Master Agreement does not explicitly address the relationship between the technical determinations of DCs and national courts. Unlike courts, their decision-making power does not derive from a constitutional or legislative grant of authority to adjudicate disputes. The basis for DC’s decision-making power is contractual – the mechanism for independent determination of whether a credit event occurred is voluntarily agreed by the parties to CDS transactions. It is debatable whether DCs exercise jurisdiction in a formal sense. One could view their decision-making as a pure expert determination, that does not involve the application of law to fact patterns. However, the difficulty associated with this view is that DCs apply the contractually agreed credit events to different fact patterns, and reach quasi-judicial decisions (even though they provide little reasoning). In this respect, the DC process is similar to arbitration.

Unlike in arbitration or litigation, however, there are no parties in the DC process. It is a procedure with only one actor – a relevant market participant who submits a request for determination to the DC. Even though the ISDA documentation is silent on this question, DC decisions are de facto final and binding upon a whole class of protection buyers and sellers of the reference entity concerned. As a result, the DC decisions radiate far beyond the sphere of the financial market participant that submitted the original request. The decision has implications for a wide range of protection buyers and sellers, who are not represented in the proceedings before the DC. One could analogize the role of DCs to those of credit rating agencies that involve analysts reaching a reasoned view on the creditworthiness of a corporate or sovereign issuer. In contrast to credit ratings agencies that rate issuers on the basis of financial and political criteria, however, DCs reach their decisions on the basis of legal rules set out in the ISDA documentation – in this important respect they exercise jurisdiction over disputes arising out of the ISDA Master Agreement.

Since their establishment in 2009, no affected market participant thus far has asked a national court to review a DC decision. In case of evidence that conflicts of interest had an effect on the decisions of DCs or if DCs fail to operate in accordance with the agreed contractual terms, review by the competent national courts is a distinct possibility. It is unlikely that DCs are the final arbiter on questions of law.

Bruce Broomhall is a Professor at the Department of Law of the University of Quebec at Montreal, teaching mainly international and Canadian criminal law. He thanks François Larocque, Mark Arnold and others for their input.

On 18 April 2012, the Supreme Court of Canada issued a trio of decisions promising to have an important impact on how Canadian law responds to attempts at civil recovery for international law violations occurring abroad, or partly abroad.

The cases are based on issues of classic private international law, not human rights or public international law. Club Resorts Ltd. v. Van Breda dealt jointly with two cases (of plaintiffs Van Breda and Charron) asking whether an Ontario court had and should exercise jurisdiction over civil claims arising from Cuban sun vacations in which severe personal injury (Van Breda), death (Charron) and related damages were claimed. The importance of Van Breda lies in the test that the Supreme Court lays out for determining the existence of jurisdiction in a case with trans-boundary elements. The accompanying Éditions Écosociété Inc. v. Banro and Breedan v. Black are actions in defamation that examine primarily (and Van Breda also examines) the issue whether jurisdiction, once recognized, should in fact be exercised, or whether it should instead be declined on grounds of forum non conveniens. This posting looks at the former question.

Van Breda presents an assessment of the ‘real and substantial connection’ required for the exercise of civil jurisdiction under the exclusive competence over “Property and Civil Rights” that Canada’s Constitution Act 1867 (at s.92(13)) accords to the Provinces and their courts. As the Court points out, this test has been the source of confusion to litigants and judges alike. It is both a principle of constitutional law used to prevent ‘jurisdictional overreach’ by any given province (a question left aside in Van Breda), as well as a principle of private international law, typically for purposes of international jurisdictional coordination (the focus of the decision) (paras. 22ff.). [One might add that it is also the concept set out in the seminal Libman case for determining the scope of territorial jurisdiction for criminal law purposes.] The Court’s aim in reformulating the Ontario Court of Appeal’s decision in the instant case was to encourage predictability in jurisdictional determinations based on the test and so to restrict case-by-case variability. The Court identifies four connecting factors that raise a rebuttable presumption that a court has jurisdiction over a given case: that the defendant is (1) domiciled or resident in or (2) carries on business in the forum province, or (3) the tort was committed or (4) a contract connected with the dispute was made there (para. 90). The Court allows (at para. 91ff.) for courts to develop additional connecting factors in accordance with strict criteria. Nonetheless, where no listed or new presumptive connecting factors are present, “a court should not assume jurisdiction on the basis of the combined effect of a number of non-presumptive connecting factors” (para. 93).

This approach to the ‘real and substantial connection’ test seems certain to reduce the space for future extraterritorial civil cases – provided they are subject to the test (see below). Two prominent cases based on human rights abuses committed abroad illustrate the point. In Bouzari, the Ontario Court of Appeal decided that a claim of torture committed in Iran against an Iranian (but later Canadian) citizen was not per se inadmissible but was subject to the ‘real and substantial connection’ test. That Court then (at paras. 36-38) showed some willingness to consider Bouzari’s present ties as a resident of the forum, as well as the absence of other accessible fora, in applying this test. It ultimately decided that it need not decide the matter, since Canada’s State Immunity Act barred jurisdiction over the Iranian officials named as defendants. In Kazemi (2011), the Quebec Superior Court applied the same Act and so blocked an action brought by the estate of an Iranian-Canadian photojournalist who had been tortured, sexually assaulted and killed by Iranian officials in Iran. Interestingly, the Court decided that her son’s action against the same Iranian State defendants should proceed to trial, since the ‘psychological trauma’ he invoked had occurred in Quebec and prima facie might satisfy the Act’s requirement of ‘bodily injury’ (‘préjudice corporel’ in its more liberal French text) as a precondition to invoking the ‘territorial tort’ exception to State immunity (a question to be determined on the merits). Bouzari has recently been revived before the Ontario courts in modified form, while Kazemi is currently on appeal. To the extent both are based on the plaintiff’s presence in the forum province (and I return to this below), Van Breda (at para. 86) makes them inadmissible.

One effect of Van Breda’s exclusive reliance on the listed criteria (and any new ones) will be to shift efforts to development Canada’s extraterritorial human rights litigation into the area of ‘forum of necessity,’ which the Supreme Court expressly refrained from discussing. Yet the Court hints (at para. 86) that the fact of the plaintiff’s presence in the forum jurisdiction might have some importance in the context of this doctrine (where the absence of other available fora would also be front-and-centre).

It therefore looks like the unfinished business of the 2004 Bouzari appeals decision will be taken up in this connection – and perhaps sooner than expected. In January 2012, the Quebec Court of Appeal refused jurisdiction to initiate a class action against Anvil Mining Ltd. (in French) for its alleged complicity in war crimes and crimes against humanity committed by the Armed Forces of the Democratic Republic of the Congo during a 2004 massacre of villagers near the company’s mine in Katanga Province. The Court held that the plaintiff Canadian Association against Impunity had failed to establish a sufficient connection between the defendant company and Quebec at the time of the events, and had also failed to satisfy requirements for invoking the doctrine of ‘forum of necessity.’ The plaintiffs have applied for leave to appeal to the Supreme Court of Canada.

Whether an eventual Supreme Court decision will open the door wide, leave it slightly ajar, or slam it shut remains to be seen. The prospect of a decision in this area nonetheless appears fraught with peril for the Supreme Court justices. ‘Forum of necessity’ would not go up to the Supreme Court with the same wealth of legislative and jurisprudential practice as well as academic comment that informed the Court’s work in Van Breda. Too wide a decision might do little but engender a pile of unenforceable default judgments, while too narrow a ruling would entail a denial of justice across a wide area. (We should recall that the international law over which extraterritorial jurisdiction might be exercised is not restricted to human rights and international crimes, but might just as well involve environmental and business regulation as well as other areas, as Jacques Hartmann’s post reminds us). Either result would ultimately bring the Court and the legal process into disrepute. The best we might hope for in an early Court decision is one that fixes some guideposts without foreclosing or presuming future developments. Contrary to its approach in Van Breda, the Court might be wise at this stage to put less emphasis on predictability and more on judicial discretion and case-by-case fairness considerations.

Putting ‘forum of necessity’ aside, and absent the defendant’s consent, the strictures of Van Breda stand to be circumvented in at least three ways. First, broad interpretations of the four listed criteria can be fostered and relied upon. The Court acknowledges that the scope of its criteria will be an issue, emphasizing that “[t]he notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction….” Moreover, while the Court acknowledges that identifying the situs of a tort will pose a challenge at times, it must mean more than the fact that “damage is sustained at a particular place,” since “this risks sweeping into that jurisdiction claims that have only a limited relationship with the forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one” (paras. 84-89). This might be read as another strike against Kazemi, which allowed the son’s claims to go forward on the grounds that the alleged harm had have taken place in Canada, and in Bouzari the Court took note of the ongoing effects in Ontario of injuries suffered in Iran. A second way to evade the Van Breda test would be through broader provincial laws, although these (like additional presumptive criteria beyond the ‘Van Breda four’) would have to survive scrutiny under the constitutional wing of the ‘real and substantial connection’ test. This was not dealt with in Van Breda, and the judgment’s relevance for the constitutional test will have to be clarified in future.

Thirdly and finally, one might encourage the adoption of federal legislation. This has already been accomplished by the current Government of Canada within the narrow ambit of its Justice for Victims of Terrorism Act (discussed on EJIL:Talk! in the posts of Joanna Harrington and René Provost). It has also been proposed on a wider scale through a private members’ bill coming from opposition MP Peter Julian, whose Bill C-323 (introduced in the last then re-introduced in the present Parliament) would give the Federal Court of Canada jurisdiction over claims brought by non-Canadians for remedies related to “a violation of international law or a treaty to which Canada is a party” that occurs outside Canada. This latter wording, of course, means either very little – under a restrictive view of how far international law directly applies to the conduct of individual legal or natural persons – or a great deal – under a view like that of the Draft Norms on Transnational Corporations and Human Rights that Special Representative John Ruggie made such a point of declaring dead. Canada’s current Conservative government will ensure that C-323 stays on the back-burner. Both initiatives are often said to be vulnerable to constitutional challenge for being within provincial jurisdiction over “Property and Civil Rights.” Detailed argument to this effect is scarce so far.

Two points should be noted in closing. First, in speaking of civil actions in Van Breda, the Supreme Court of Canada does not distinguish actions based on international law from others, and does not mention the various forms of jurisdiction recognized in criminal law (passive personality, universal, etc.). ‘Universal civil jurisdiction’ as a category would seem to be entirely beside the point, and tort actions for damages flowing from relevant violations of international norms unproblematic in principle, provided the Van Breda criteria are met. The questions raised in Barry Sander’s post on universal civil jurisdiction are therefore scarcely visible in the Canadian jurisprudence. It will be interesting to see whether the briefs responding to the United States Supreme Court’s rather open-ended invitation, and supporting extraterritorial civil jurisdiction, raise the possibility of conditioning its use through ‘filtering’ doctrines such as immunity, forum non conveniens, ‘real and substantial connection,’ ‘forum of necessity,’ and so on.

Finally, however restrictive the Van Breda presumptions might be, they leave open important possibilities in one area of lively debate in Canada – that of the responsibility of extractive companies for alleged involvement in violations of international law abroad. In Van Breda, the Supreme Court ruled that “a defendant may always be sued in a court of the jurisdiction in which he or she is domiciled or resident (in the case of a legal person, the location of its head office)” (para. 86). Anvil Mining Ltd. may have had its head office in Australia until recently acquired by a subsidiary of China Minmetals, but a great many extractive companies active in so-called ‘zones of weak governance’ around the world are headquartered in Canada. Such cases, if they develop, will not be examples of pure ‘universal civil jurisdiction.’ But how many really are?

The two nominees for the single position are Dalveer Bhandari (India) and Florentino P. Feliciano (Philippines). (In an 18 April note verbale, Lebanon announced that its candidate, Ghaleb Ghanem, had withdrawn from the race.) Bhandari (64), currently serves as a senior judge in the Supreme Court of India. Feliciano (84), served on the Supreme Court of the Philippines and is now a Member of the Permanent Court of Arbitration (one of the potential arbitrators appointed by member states). (Both candidates’ curricula vitae are included in a note by the Secretary-General of 11 April – S/2012/213.)

UPDATE: Dalveer Bhandari was elected to the ICJ today by the GA and the UNSC – ICJ press release here.

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well.

The position of the respondents on universal civil jurisdiction 

The respondents’ case appears to be based on the assumption that in order for a US federal court to have civil jurisdiction over grave human rights violations committed outside the US, it is first necessary to identify an express rule of international law permitting the assertion of such jurisdiction. Since customary international law does not support the existence of such a rule, assertions of universal civil jurisdiction by US federal courts breach international law.

This perspective is expressly affirmed in an amicus curiae brief submitted by the UK and Netherlands. These governments asserted that:

“the right of the United States or any other sovereign to create and enforce such a domestic remedy depends on it being able to satisfy the proper jurisdictional limits recognized by international law. […] The Governments believe that there is no basis under international law for a U.S. court to exercise jurisdiction against the Respondents for the conduct charged in the complaint”.

The point is also made, quite forcefully, in a brief by Chevron in which it stated that:

“Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.”

It is also worth noting that this perspective is shared by the UK House of Lords. In the case of Jones v Saudi Arabia, Lord Bingham, criticising the decision of the Court of Appeal which had allowed a suit in respect of acts of torture allegedly committed by Saudi Arabian officials outside the UK, stated that:

“The court asserted what was in effect a universal tort jurisdiction in cases of official torture […], for which there was no adequate foundation in any international convention, state practice or scholarly consensus […] Despite the sympathy that one must of course feel for the claimants if their complaints are true, international law, representing the law binding on other nations and not just our own, cannot be established in this way.”

The Lotus dictum – an attractive but ultimately unpersuasive starting point for the petitioners

In response, one starting point for the petitioners could be to challenge the very assumption upon which the respondents base their case, namely that the onus is on the petitioners to identify an international legal norm permitting the assertion of universal civil jurisdiction.

For this purpose, the petitioners could argue that rather than requiring the petitioners to identify the existence of a permissive rule, international law places the onus on the respondents to identify a prohibitive rule. Pursuant to this theory, an assertion of universal civil jurisdiction by the US courts would be presumed lawful so long as a prohibitive rule of international law to the contrary had not crystallised.

It is conceded that in the Arrest Warrant case, Judges Higgins, Kooijmans and Buergenthal noted that the “very broad form of extraterritorial jurisdiction [under the ATS] […] has not attracted the approbation of States generally”. For example, in the US Supreme Court case of Sosa v Alvarez Machain (“Sosa”), the UK, Switzerland and Australia protested to the jurisdiction of the US courts, while in Kiobel, the UK, the Netherlands and Germany all submitted briefs in support of the respondents.

However, it would be open to the petitioners to point out that the assertion of broad forms of jurisdiction under the ATS has equally not attracted the criticism of States generally. For example, in Filartiga v Pena-Irala, a case concerning a claim for damages for alleged torture of a Paraguayan national by a Paraguayan police official, Paraguay did not object to the jurisdiction of the US courts. In Kiobel itself, the US government submitted a brief in support of the petitioners.

In this light, the response of States to the exercise of universal civil jurisdiction under the ATS may best be characterised as mixed, and certainly insufficiently uniform to crystallise into a prohibitive rule. With this in mind, the petitioners could assert that in the absence of such a prohibitive rule, the exercise of universal civil jurisdiction by US federal courts is lawful under international law.

The basis for this approach may be traced back to the following dictum of the Permanent Court of International Justice in the Lotus case:

“Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”

The Lotus dictum is attractive for the petitioners since it purports to place the burden of proof on the respondents to identify a prohibitive rule. Yet, for all its attractiveness, it is submitted that the Lotus dictum is ultimately unpersuasive for two reasons.

First, the Lotus approach does not reflect State practice. In particular, as noted by Lowe and Staker, in over a century of objections to exercises of universal jurisdiction, there does not appear to be a single instance of an objecting State seeking to prove the existence of a prohibitive rule forbidding assertions of universal jurisdiction:

“When States object to exercises of jurisdiction, they simply assert that the other State has ‘no right’ to exercise jurisdiction in the way that it claims. State practice is consistently based upon the premiss that it is for the State asserting some novel extraterritorial jurisdiction to prove that it is entitled to do so.”

Second, as noted by Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, the Lotus dictum “represents the high water mark of laissez-faire in international relations” and is therefore best considered a product of its time, which has little or no relevance to contemporary international law.

The Opinion of Justice Stephen Breyer in Sosa – a stronger starting point for the petitioners

A stronger starting point for the petitioners would be to point to the Opinion of Justice Stephen Breyer in Sosa. Justice Breyer noted that it is generally accepted that there exists “procedural agreement” amongst the international community to criminally prosecute a subset of universally condemned behaviour, including torture, genocide, crimes against humanity, and war crimes. In light of this consensus concerning universal criminal jurisdiction, Justice Breyer further noted the following:

“The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. […] That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. […] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.”

In this passage, Justice Breyer drew on the practice of many civil law States, which permit victims of crime to attach civil claims for compensation to criminal prosecutions (so-called action civiles), to conclude that the international community’s consensus regarding universal criminal jurisdiction “necessarily contemplates a significant degree of civil tort recovery as well”. At the international level, this assertion is also supported by the fact that, pursuant to Article 75(2) of the Rome Statute, the International Criminal Court has the power to:

“make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”

Justice Breyer’s position is also supported by two further arguments.

First, as noted by Donovan and Roberts, “[p]unishment and compensation represent two distinct, but complementary, ways of condemning past, and deterring future, wrongdoing”. In this regard, the exercise of universal civil jurisdiction is consistent with the justifications put forward for the exercise of universal criminal jurisdiction under international law. The assertion of universal criminal jurisdiction has traditionally been justified either as responding to crimes that attack the fundamental values of the international community (e.g. genocide) or where crimes would otherwise go unpunished if universal jurisdiction did not exist (e.g. piracy). As Yee has noted, in both cases the assertion of universal jurisdiction refers to the exercise of domestic jurisdiction based on a “universal concern” of the international community. The recognition of the need to respond to such universal concerns justifies the exercise of universal civil jurisdiction just as much as it justifies universal criminal jurisdiction.

Second, several instruments in the human rights field now oblige States to afford an effective remedy to human rights victims.  For a full review of these instruments, I would refer readers to the brief submitted by Navi Pillay, the UN High Commissioner for Human Rights. In this regard, the growing importance of the provision of reparation as an element of the right to an effective remedy further supports the view that the international community’s acceptance of universal criminal jurisdiction should encompass a degree of universal civil jurisdiction, at least in respect of the same range of conduct.

The re-argument hearing is scheduled to take place during the court’s next term, which begins in October. Whether the US Supreme Court will be receptive to submissions in favour of universal civil jurisdiction remains to be seen.

Christopher Gevers is a Lecturer in the School of Law, University of KwaZulu-Natal, South Africa. He is author of the War and Law Blog.

One of the contentious issues that arises in debates about universal jurisdiction is whether international law allows for what has been called “universal jurisdiction in absentia”. The question is whether a State may initiate criminal proceedings, for international crimes, against persons who are not present within the territory of the prosecuting State? Usually, the initiation of the proceedings is followed by the issuance of an international arrest warrant or a request for extradition. In 2002, the judges of the International Court of Justice split on the question of universal jurisdiction in absentia in the Arrest Warrant Case. [See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735]. In March, precisely ten years after the Arrest Warrant case, a South African Court heard a landmark case on the domestic prosecution of international crimes which raises the issue of whether domestic proceedings may be initiated under the principle of universal jurisdiction with regard to persons outside South Africa. The case was brought to court by the Southern Africa Litigation Centre (SALC) following unsuccessful attempts to persuade the South Africa’s National Prosecuting Authority (NPA) to investigate and prosecute, in South Africa, 17 Zimbabwean suspects for torture as a crime against humanity. The torture was allegedly committed in connection with a raid on opposition headquarters in Zimbabwe in March 2007.

Background

In June 2009, over a year after receiving a complaint from the SALC, the South African Police Service (SAPS) and South Africa’s National Prosecuting Authority (NPA) decided not to investigate the matter. The reasons given for the decision, included issues regarding the sufficiency of the evidence, ostensible problems in obtaining further evidence from Zimbabwe, concerns over whether South Africa’s authorities had jurisdiction in respect of the investigation, and the fear of undermining Zimbabwe’s sovereingty.

In December 2009, SALC launched a legal challenge asking the Court to set aside the decision not to open an investigation and to order that the matter be remitted to the authorities for them to reconsider the decision.

On the eve of proceedings, the case took an interesting turn when one of the senior Prosecutors deposed to an affidavit that alleged he had been sidelined within the NPA because of his view that the SAPS’s reasons for refusing to initiate an investigation were flawed.

Arguments before the Court

A large portion of the arguments were directed at the domestic legal aspects of the application, in particular (i) the standing of the applicants; (ii) the competence of the Court to review the decision of the NPA not to prosecute (based on the acceptance of the police decision not to investigate); and (iii) the correct division of responsibilities between the NPA and the police in respect of the investigation of international crimes. Those arguments, while interesting, are not the focus of this post. Suffice it to say that, in my opinion, none presented an obstacle to the success of the applicants’ case.

Rather, I’d like to focus on what I consider the three most interesting aspects of the case: the sufficiency of evidence, the question of jurisdiction and the comity-related concerns.

The sufficiency of evidence for the purposes of investigation

In his written submissions to the Court, the head of the NPA placed considerable emphasis on the apparent insufficiency of the evidence contained in the complaint handed over by SALC as a basis for an investigation and possible prosecution. This line of argument was somewhat contradicted by the police’s response to the complaint, which castigated SALC for going too far in its investigations by taking witness statements. This inconsistency led counsel for the applicants  to remark that the respondents were collectively asking for a ‘Goldilocks complaint’ in order to investigate: not too much, not too little.

In any event, the NPA argued that, in the absence of domestic law in respect of the appropriate standard of evidence required to initiate an investigation, the Rome Statute provisions on sufficiency of evidence had been followed by the NPA in its consideration of the complaint. On this basis the NPA went on to cite a number of cases from the ICC and the ICTY relating to the sufficiency of evidence. However, in doing so counsel for the NPA failed to distinguish between the different evidentiary burdens that apply at different stages of proceedings. For example, he cited case-law from the confirmation of charges phase (The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Callixte Mbarushimana), and from the trial phase (Prosecutor v Lubanga).

In doing so, the NPA placed considerable reliance on the Abu Garda and Mbarushimana confirmation of charges decisions, but did not cite the Kenya Authorisation Decision, where the Pre-Trial Chamber considered in some detail the evidentiary basis necessary for the initiation of an investigation. Nor did he cite articles 15(2) and 53(1)(a) of the Rome Statute. By doing so the NPA pushed into service the higher evidentiary burden for the confirmation of charges (‘substantial grounds to believe’), rather than the appropriate standard for the commencement of an investigation (‘reasonable basis to believe’). In so doing, the applicants argued that the NPA had committed one amongst many material errors of law in deciding to accept the police’s decision not to initiate an investigation. Nor, incidentally, would it have been wise for the NPA to rely on the appropriate evidentiary standard, as it was conceded by the respondents in the papers that the complaint provided by SALC established a reasonable suspicion that crimes against humanity had been committed.

The ‘Gordian knot’ of jurisdiction

The parties’ submission on jurisdiction were aimed at answering three separate questions: First, whether and on what basis South African courts would be able to exercise ‘universal jurisdiction’ over the crimes in question. Second, whether it was necessary for South African courts to have jurisdiction in order for the police to investigate the crime. Third, whether the investigation of crimes that took place in Zimbabwe would violate that country’s sovereignty.

The first question turned on the correct interpretation of the jurisdictional clauses of South Africa’s Implementation of the Rome Statute Act 27 of 2002 (the ICC Act). Section 4(1) of the ICC Act states:

‘Despite anything to the contrary in any other law in the Republic, any person who commits [an international] crime, is guilty of an offence.’

Then, section 4(3) states:

‘In order to secure the jurisdiction of a South African court for purposes of this Chapter, any person who commits [an ICC] crime outside the territory of the Republic, is deemed to have committed that crime within the territory of the Republic if –

 (c)      that person, after the commission of the crime, is present in the territory of the Republic’

In their submissions on jurisdiction, the applicants relied on the distinction between prescriptive and enforcement jurisdiction. Accordingly, section 4(1) of the Act prescribes international offences as crimes under South African law and does so without any reference to the locale of the crime or the presence of the accused. By contrast, section 4(3)(c) sets out the conditions under which South African courts can exercise enforcement jurisdiction over the crimes. While accepting that courts cannot exercise enforcement jurisdiction over the crimes until the person is present in the Republic, the applicants rejected the construction that South Africa’s prescriptive jurisdiction over such crimes was similarly conditioned on the presence of the accused. This must be the case, according to the applicants, because: (i) if it were not it would create an absurd situation where a crime was inserted into South Africa’s criminal law when the accused appeared, and then deleted therefrom should he leave the Republic, and (ii) were the crime only prescribed at the time of the accused entry into the Republic it would violate the principle of legality in that it would amount to a retroactive application of criminal law. This would not only offend South Africa’s international human rights obligations, but also violate the South African Constitution, which contains a prohibition on retroactive application of criminal law.

Therefore, according to the applicants, it is incorrect to say that South African courts do not have jurisdiction over these crimes until the accused is present in the Republic. Rather under section 4(3)(c) the enforcement of such jurisdiction was merely subject to the same territorial limitations as other ‘traditional’ bases of jurisdiction. On this reasoning it was preferable, said the applicants, to understand section 4(3)(c) as motivated by the South African legislature’s concern to avoid trials in absentia.

The respondents’ arguments on jurisdiction were difficult to follow. While the NPA appeared to abandon his jurisdiction points in oral argument, in the NPA’s written submissions the distinction between prescriptive and enforcement jurisdiction was accepted in principle.

However, instead of turning to section 4(1) as the basis for the Court’s prescriptive jurisdiction, the NPA argued:

“We submit that section 4(3) [the enforcement jurisdiction clause] should be interpreted as defining the circumstances under which South Africa will exercise extraterritorial jurisdiction. In this regard we submit that the initiating of an investigation would be the first step in the exercise of such jurisdiction. The reference to the crime being deemed to have been committed in South Africa once the jurisdictional facts set out in the section had been established is also indicative of the fact that the investigation should be initiated on the basis of the establishment of these facts”.

This passage is not easily deciphered. One interpretation is that the NPA understands section 4(3)(c) as setting out the conditions under which jurisdiction will be exercised – i.e. enforcement jurisdiction. However, if this is the case then the prescriptive basis of the crimes lies in some alternate, unspecified provision. Another interpretation is that – notwithstanding the previous passage, and the NPA’s recognition of the different forms of jurisdiction – both prescriptive and enforcement jurisdiction are conditioned on the presence of the accused, as is the initiation of an investigation.

The National Commissioner of Police’s argument on jurisdiction was simpler: section 4(3)(c) of the Act set out the conditions under which South African courts can exercise jurisdiction over crimes committed abroad, and that provision confers jurisdiction on condition that the “rationes jurisdictionis” of presence of the accused is satisfied. Notably, the Police Commissioner did not distinguish between prescriptive and enforcement jurisdiction, meaning that in effect the crime is only substantively prescribed once the person enters the Republic, at which point such jurisdiction can also be enforced. Further, according to the Police Commissioner attempts by the applicants to initiate an investigation without the presence of the suspects violated the choice by South Africa’s legislature to adopt a conditional rather than absolute form of universal jurisdiction. According to the Police Commissioner, the absence of jurisdiction was not only fatal to the applicants’ substantive claim, but also vitiated their standing to bring the case before the courts at all!

The second, related question was whether the police’s power to investigate international crimes is contingent on South African courts having jurisdiction over the crimes. Simply put, do the jurisdictional requirements of section 4 of the ICC Act have to be met in order for the police to initiate an investigation?

The applicants argued that the police’s power to investigate crimes was not territorially limited. In effect, they argued that the police were empowered by the Constitution and the domestic legislation governing the South African Police Service to open an investigation based on the ‘anticipated presence’ of a suspect in the territory of the Republic of South Africa. Furthermore, or in any event, the applicants argued, if one accepts that section 4(1) of the ICC Act makes ICC offences criminal within the Republic when they are committed (regardless of their locale) then they are ‘crimes’ within the Republic for the purposes of investigation regardless of whether the conditions for their prosecution before a court (i.e. presence) are met.

Finally, in their submissions the respondents placed considerable reliance on the supposition that any investigation into crimes committed in Zimbabwe by South African police would per force violate that country’s sovereignty. The applicants countered this by arguing that even if conducting investigations on Zimbabwean soil without consent would violate its sovereignty: (i) conducting an investigation within South Africa over events that took place abroad would not impact upon Zimbabwe’s sovereignty; and (ii) if authorities wanted to investigate crimes on the territory of Zimbabwe they could in any event do so by mutual legal assistance requests to the relevant authorities.

Both the applicants and the respondents relied on the Canadian Supreme Court decision in R. v. Hape [2007] 2 S.C.R. 292, 2007 SCC 26 in support of their contentions on this point, with the applicants also citing the subsequent decision in Canada (Justice) v. Khadr [2008] SCC 28. I have my doubts about the usefulness of Hape and Khadr in this regard, aside from setting out the general rules relating to the exercise of extraterritorial jurisdiction and the broad principle (relied on by the applicants) that deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.).

Comity-related concerns

Equally interesting, though less laudable to some, were the arguments raised by the state regarding the political considerations of the proposed investigation and any resultant prosecutions. Arguments of this species appeared throughout the papers, implicitly and explicitly. They concerned not only the effect of such action on inter-state relations, and in this regard South Africa’s role as the SADC mediator in Zimbabwe was specifically raised, but also the effect on relations between functionaries of the police forces of South Africa and Zimbabwe. While these arguments overlap with the sovereignty-based arguments, they are distinct in that they maintain that South Africa ought not investigate the crimes in Zimbabwe for policy reasons, not that they are legally prohibited from doing so under the principle of sovereign equality.

The consideration of these arguments split into two distinct enquiries: (i) whether such considerations are relevant; and (ii) at which stage (and by whom) these should be considered.

The applicants argued that it was not the task of the police, at the investigatory phase, to raise these foreign policy considerations as an excuse not to investigate. If indeed these foreign policy considerations are relevant at all, then they are to be considered by the head of the NPA, with advice from the Ministry responsible for international relations, at a later stage in the proceedings.

In any event, as the applicants argued, arguments of this nature are precursors to an immunity claim which some (though not all) of the suspects might be entitled to raise at a latter stage should prosecutions be undertaken. However, as I’ve discussed elsewhere, the consensus appears to be that the ICC Act has pre-empted such arguments through the inclusion of section 4(2)(a), which provides that notwithstanding “any other law to the contrary, including customary and conventional international law, the fact that a person … is or was a head of State or government, a member of a government or parliament, an elected representative or a government official … is neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.

Most commentators have interpreted this provision as removing personal immunity of foreign officials before South African courts. Based on this understanding, the applicants argued it would appear nonsensical for a court to allow considerations of comity to derail an investigation into the commission of international crimes, when the legislature has expressly negated the relevance of comity at the prosecution stage through the removal of personal immunity.  (That argument would lose its force significantly if section 4(2)(a) of the ICC Act merely removes the functional immunity of persons tried under the Act, and does not address personal immunity per se.) Additionally, the applicants contended that various other provisions of the ICC Act – not least of all the Preamble – suggest that the consideration of comity as a basis for non-investigation is inimical to South Africa’s commitment to combat impunity for international crimes.

Following three days of argument the Court reserved judgment. It remains to be seen which peg the Court will decide to hang its decision on. The nature of a review application is such that the Court might choose not decide every issue raised by the applicants in respect of the impugned decision. In fact, it need only find fault with one as a basis for concluding that the decision must be set aside. The upshot of this is that should the Court find in favour of the applicants, it might base its decision on an isolated misdirection of law, or a misconstruction of authority by one or more of the respondents, and leave the more interesting (and admittedly more vexed) questions of jurisdiction and comity unanswered.

 Having witnessed the judge’s handling of the case, I would certainly not characterize him as a shrinking violet, quite the contrary. Equally so, it was clear that he had a complete and considerable grasp of all of the complex issues raised by the parties, as well as the significance of the case both from the perspective of the victims, and its broader context. All this augurs well for those of us looking for a wide-ranging, precedent-setting judgment fitting of the inaugural judicial pronouncement on South Africa’s ICC Act.