Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

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Christine Chung is a Senior Fellow at the Schell Center for International Human Rights, Yale Law School where she teaches “The International Criminal Court: Prospects for Global Justice.” Ms. Chung was the first senior trial attorney appointed at the Office of the Prosecutor of the International Criminal Court and worked in The Hague from 2004 to 2007.

If you’re looking for the justification for the front-page media headlines about the ICC warrant naming Sudanese President Omar al-Bashir, there are two, to my mind. First, the world’s permanent international criminal court has charged a sitting head of State, and sister States aren’t close to hand-wringing over immunity. (My academic colleagues are a different matter – read, for example, Marko and Dapo). Yesterday’s decision might be the nail in the coffin of the era in which heads of State escaped being called to account for perpetrating atrocities.

Second, the decision of Pre-Trial Chamber I to decline to include the charge of genocide requested by Prosecutor Luis Moreno Ocampo (by a 2-1 vote) reinforced that pursuing a genocide charge is, for an international prosecutor, fraught with peril. The old legal issues of how to define an “ethnic” group and where to find the specific intent to destroy a group (in the usual case, where there is no direct evidence) were very much in evidence in the Chamber’s split opinions. On top of those, the Judges wrestled with questions about the degree to which the ICC should adopt or follow genocide jurisprudence from the ICJ and the ad hoc tribunals, the proper interpretation of the “reasonable grounds” standard applicable at the stage of evaluating a request for an ICC arrest warrant, and how to reconcile the Rome Statute provisions with the ICC Elements of Crimes. Bottom line: the need to settle the law of this new Court, if anything, further complicates the already extremely difficult business of proving genocide.

As fascinated as we lawyers are by judicial decision-making, though, it’s more important in Bashir’s case to identify what did not change yesterday. Read the rest of this entry »

(Updated)

Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

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While the recent conflict between Israel and Hamas was still ongoing, I was wary of commenting on what is a very contentious legal issue – whether Gaza is still to be considered as occupied as a matter of international humanitarian law, even after Israel’s unilateral disengagement from Gaza in 2005. I was wary of doing so primarily because the issue is a complex one, because these complexities can often get lost in the passion of the moment, and, well, because at the time I hadn’t yet done my homework. Even now I’d just like to offer some tentative thoughts, and point the readers to excellent new scholarship on the issue. The first work I’d like to strongly recommend is Yuval Shany’s article on Gaza, commenting on the Israeli Supreme Court’s Bassiouni decision, which is available on SSRN (h/t International Law Reporter).  The second is Yoram Dinstein’s book The International Law of Belligerent Occupation, which has just been published by CUP, and which promises to be one of the definitive works on the whole subject.

If you have been following the debates on Gaza closely, you will know that there are two reflexive answers to the question whether Gaza is occupied, on both ends of the spectrum. The first one is that of course Gaza still continues to be occupied by Israel. Israel controls all of the border crossings, the air, the sea, its soldiers can enter Gaza at will, so on and so forth. The second is that of course Israel no longer occupies Gaza. It has no actual, effective control of the place, which is the factual predicate for any occupation. It does not have troops on the ground and it is not running an administration of the territory. It is Hamas that has such control. Gaza is not under Israeli occupation, but under a siege and a blockade, and rightly so.

Now, before I get into the specific arguments on either side, it is important to explain why the issue matters, and why many in the human rights community in particular tend to (again, somewhat reflexively) adopt the first position. The answer is simple. Under IHL, a belligerent occupant has positive obligations to ensure the well-being of the civilian population, including the provision of food and other supplies. In a state of siege without occupation, however, the party to the conflict only has negative obligations not to interfere with relief consignments etc., and even these can be subject to military necessity. It does not have to provide food and supplies to the civilian population of its adversary (cf. Arts. 69 & 70 of Additional Protocol I). Indeed, to impose such a requirement would be manifestly absurd. The problem is of course precisely that the civilian population of Gaza is heavily dependent on Israel and need Israel not just to let humanitarian aid through, but also to provide electricity and other supplies of its own.

This is why the gentler souls among us international lawyers need to argue that Israel is the belligerent occupier of Gaza. It is the only legally certain way of assigning some positive obligations on Israel to provide for the civilians of Gaza – something that by the way I agree with entirely as a matter of policy. But the certainty is unfortunately only deceptive. Let me now turn to the specific argument and counterarguments.

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… this time from the department of shameless self-promotion: I’ve just posted on SSRN a draft chapter on the territorial application of the Genocide Convention and state succession in the forthcoming Commentary to the Convention edited by Paola Gaeta and published by OUP. Some of my blogging here was based on that piece, so maybe some of the readers would be interested in it. Comments are welcome.

Today a Trial Chamber of the ICTY delivered its judgment in Milutinovic et al, a case against a number of high-ranking political, military and police officials of the Federal Republic of Yugoslavia and Serbia regarding crimes committed by FRY/Serbian forces in Kosovo in 1998 and 1999. This is the first judgment delivered by the ICTY on Kosovo, since the Kosovo indictment against Slobodan Milosevic was never adjudicated on because of the death of the accused. Because of the scope of the case and the status of the accused, this is beyond any doubt one of the most important trial judgments to be delivered by the ICTY.

In its judgment, the Trial Chamber confirmed the existence of a broad campaign of violence against the Kosovo Albanian civilian population, causing the departure of at least 700.000 Albanians from Kosovo. The campaign was legally qualified as deportation, murder and persecution as crimes against humanity.

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Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London. He was a member of the legal team for the applicant Yassin Kadi.

The European Court of Justice’s approach in the Kadi decision has already been described as sharply dualist (see,Professor Joseph Weiler’s EJIL editorial, posted here on this blog and Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi“, Jean Monnet Working Paper No. 01/09).  The Court emphasises the autonomy of the Community legal order. Judicial review in the light of fundamental rights is the expression of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, a guarantee which is not to be prejudiced by an international agreement. Not even the UN Charter is capable of interfering with that guarantee, notwithstanding the Charter’s primacy under international law, a primacy which the Court accepts.

The strong confirmation of the autonomy of Community law is undeniable. But there is of course nothing new in that autonomy: since Van Gend en Loos this is the very premise of the Community legal order. However, I find the notion of dualism much less helpful for the purpose of characterising the Court’s reasoning. The interactions between international law and municipal law in today’s world have too many different dimensions for blunt concepts such as monism and dualism to be helpful. This means that Kadi needs to be put in perspective. It is very tempting to argue that the judgment is ground-breaking, perhaps even revolutionary, the most important judgment handed down by the Court in decades. Alas, my academic assessment is that this is exaggerated. Read the rest of this entry »

Joanna Harrington is Associate Professor of Law, University of Alberta, Canada. Her Phd obtained from the University of Cambridge dealt with extradition and human rights. From 2006-2008, she was on secondment to the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she, among other things, was a member of the Canadian delegation to the UN General Assembly for meetings of the Sixth (Legal) Committee dealing with the work of the International Law Commission.

Dapo’s post on the case in the ICJ between Belgium and Senegal highlights the real issue in the case, which is this question of whether international law “obliges” prosecution.

One aspect of the ILC’s recent work on “Extradite or prosecute” that has attracted my own interest is the Special Rapporteur’s description of this obligation as a choice, an “either/or” option for States, thus equating “extradite or prosecute” with “prosecute or extradite” (the latter being the “obligation” now invoked by Belgium).

In the very treaties that the Special Rapporteur has cited in his reports, the actual wording of the treaty provisions imposes an obligation to extradite, and IF that does not occur, THEN an obligation arises to submit the case for prosecution. In other words, there is a condition within the treaty-based provision, which the shorthand reference to “extradite or prosecute” does not convey, and which does not mean that we can look to these treaty obligations on “extradite or prosecute” to substantiate a customary obligation to “prosecute or extradite”. We can’t just flip the phrase. This is especially so where the obligation to extradite or prosecute applies to crimes for which one of the state parties to the extradition treaty would not have jurisdiction to prosecute. This happens in extradition treaties between common law and civil law countries, when the latter may invoke the nationality exception to extradition, and in return, is subject to an obligation to submit the case for consideration for national prosecution. The common law country would not be in the same position if it refused to extradite all nationals for all crimes given the territorial nature of much of common law criminal law.

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Belgium has filed a case in the ICJ against Senegal (see press release) with regard to Senegal’s failure to prosecute former Chadian Head of State, Hissene Habre. This is the latest episode in the long running saga regarding the possible prosecution of Habre. Habre is accused of torture and crimes against humanity committed in the 1980s against dissidents and political opponents during his period in office in Chad. Habre has been resident in Senegal since he was overthrown in 1990. Following the Pinochet precedent, attempts were first made in 2000 to institute criminal proceedings in Senegal against Habre. These attempts failed when the Senegalese courts held that Senegal lacked extraterritorial jurisdiction over the crimes because it had not passed the necessary legislation. Thereafter, proceedings against Habre were commenced in Belgium and, in 2005, a Beglian magistrate issued an international arrest warrant for Habre. After the African Union recommended prosecution in Senegal, that country amended its domestic law in order to provide jurisdiction for crimes against humanity, war crimes and genocide. However, no proceedings against Habre have been commenced in Senegal though he is said to be under house arrest.

 In its Application to the ICJ Belgium, requests the Court to adjudge and declare that:

” –  the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;
- failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.

Belgium has also requested provisional measures as the Senegalese President has suggested that Habre may be released from house arrest. Read the rest of this entry »

Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71, decided by the House of Lords several years ago. The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
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