In a story in The Guardian today, it was reported that the UK’s Metropolitan Police are investigating MI5 for complicity in US torture in relation to the case of Guantanamo detainee Aamer Shaker. Shaker is a permanent resident of the UK and is married to a UK citizen. The report claims that “Investigating officers have applied to the high court for the release of classified documents relating to the case. They are already investigating claims of MI5 complicity in the ill-treatment of British resident Binyam Mohamed while being held by the US.”

If the story is accurate, it represents an interesting development. Over the last 9 years, western intelligence agencies have repeatedly sought to “piggy-back” upon abusive interrogations conducted by the US directly or by one of its “war on terror” allies (Egypt, Jordan, Morocco, even Syria). This piggy-backing has taken various forms, from sending questions to be put to individuals detained by one of these allies (while feigning ignorance of the risk of torture this may pose to the detained person), to attending places of detention in the aftermath of abusive interrogation to question the detainee directly (such as in the case of Omar Khadr and Binyamin Mohammed).

When these visits have been revealed, the intelligence agencies and their governments have often denied that they have violated any aspects of the prohibition on torture, because the detainee is not in their custody (and so not within jurisdiction) and because (they argue) such conduct does meet the requirements of the international or domestic criminal law tests for “complicity.”

So far, it has not been possible to test their claim about whether such conduct could amount to complicity under national or international criminal law, because no serious criminal investigation has been undertaken into the facts (including, importantly, the mental states and state of knowledge of the intelligence agents who conducted these visits and those who ordered them to do so). The inquiries that I am aware of, such as the Arar Inquiry and the Iacobucci Inquiry (both Canadian government inquiries into the conduct of Canadian officials towards Canadian nationals detained and tortured in Syria) have not had a mandate to examine questions of criminal complicity.

A UK domestic prosecution of one of its own intelligence agents for complicity in US torture would be an extraordinary development. It would set an example for many other states which have engaged in similar activities of what a rigorous application of the rule of law might look like. It might also help to ensure that the dreadful tolerance for torture and abusive interrogation at the hands of third parties that many western intelligence agencies have shown in the aftermath of September 11 will not be repeated.

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted on any topic in any field of international economic law. The competition is open to all current undergraduate and graduate students and those who have graduated no earlier than five years before the submission deadline. Members of the SIEL Executive Council may not submit entries. The essay may not have been previously published.

 The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The deadline for submission is 30 September 2010. For terms and conditions please see www.sielnet.org/essayprize

On 26 November 2009, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested permission from the ICC’s Pre-Trial Chamber II to conduct formal investigations in Kenya, the first time he has ever sought to use his proprio motu powers to initiate an investigation.  In what will be an historic and significant decision, the Pre-Trial Chamber will have the opportunity to provide clarification on a number of contentious issues of international criminal law, including the principle of complementarity, the gravity threshold, the meaning of “interests of justice” and the definition of “crimes against humanity”.  After providing a brief background on the conflict in Kenya and describing the applicable procedure from the Rome Statute, this piece will consider some of the issues that will likely be occupying the minds of the three judges that comprise the Pre-Trial Chamber.

1.  Background and Applicable Procedure

In a previous post, I discussed the events that led to the Prosecutor of the International Criminal Court becoming involved in the Kenyan situation.  In this post, I will consider that legal issues that arise from this involvement.

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court.  Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.”  Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4) authorise the commencement of the investigation where it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court”.  Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)    Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)   Whether the case would be admissible under Article 17; and

(c)    Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

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The International Court of Justice (ICJ) has announced that it is seeking to appoint 6 new Law Clerks for its judges. The additional clerks will make it possible for each judge to have a full time law clerk. The decision by the General Assembly to allocate extra resources to the Court is welcome as the list of cases before the Court continues to grow (see our earlier posts on recent cases here , here, here and here). Until now, ICJ Judges have had to share clerks and have also had the benefit of year long interns which have been paid for by law schools around the world under the Court’s univerity traineeship programme. My own law school at Oxford recently joined this latter programme and now provides one intern to the Court. 

The announcement on the ICJ’s website regarding the new positions says that:

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

The new positions are at P2 level and will be made for a fixed term of 2 years with the possibility of renewal.

Readers will probably know by now that the ICC Appeals Chamber handed down a decision on February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Sudanese President Bashir with respect to the charge of genocide in Darfur. The Pre-Trial Chamber (PTC) issued an arrest warrant with respect to war crimes and crimes against humanity but held that the Prosecutor had failed to satisfy the standard in Art. 58(1) of the Rome Statute that there were “reasonable grounds” to believe that genocide had been committed.  The PTC held that  ”if the existence of a . . . genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” As Marko commented  here on EJIL:Talk! at the time, the decision by the Pre-Trial Chamber on this issue was highly problematic as it did not in fact apply a reasonable grounds to believe test but seemed to require proof beyond reasonable doubt. The Appeals Chamber agrees and held that

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.” (para. 33)

However, the Appeals Chamber did not itself reinstate the genocide charge, but, rather, remanded the matter to the PTC to make a new decision applying the correct standard. 

This is all well and good.  However, I wonder why the Appeals Chamber did not decide to take up the elephant in the room regarding the arrest warrant for Bashir – the issue of whether as a serving head of State he is entitled to immnity from arrest and whether the Court is entitled to order his arrest in the first place.  This is an issue that we have discussed at length here on EJIL:Talk! (see here, here, here and here). Its a matter that has exercised African States and led to a call by the Assembly of Heads of States of the African Union for African States not to cooperate with the ICC with respect to the arrest of  Bashir case.  The length of time taken by the Appeals Chamber to issue a decision in this matter suggested that it was considering a weighty issue (see the excellent post by Prof. Bill Schabas on his blog regarding the time taken by the Appeals Chamber). In the end it came up with a rather brief decision saying what was obvious to most knowlegable observers (though to be fair not obvious to the majority of the PTC). So why that lenghty delay?

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The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

Much of the debate in the UK regarding the Iraq war has centred on the legality of the use of force. There was much public debate on the issue in the lead up to the war in 2003 and sustained interest in it since. The appearance before the UK inquiry, this past week, of Tony Blair and of the main UK government legal advisers involved in considering the legal position has revived this debate (see Marko’s posts here and here). What last week’s proceedings have also demonstrated is that international law played a significant role in the internal deliberations of the UK government and had a role in shaping policy. In short international law mattered! In this post, I do not intend to discuss the substance of whether the legal position ultimately taken by the UK Attorney General was correct. Many (Marko included) have demonstrated the flaws in it. What I wish to consider are the ways in which international law mattered in policy formation and why did it matter to the relevant policy makers in the UK.

The first evidence to support to the claim that international law mattered in the process is that there was much discussion within government of whether the use of force would be legal or not and discussion of the conditions under which the use of force would be legal. Much of the relevant internal documents can now be found on the Inquiry’s website by scrolling to the bottom of the page for 26 January. As would be expected, the legal advisers at the Foreign Office (FCO) and the Attorney General devoted much time and paper to advising on the legality of the war. However, what is perhaps more important here is the relevant policy makers also devoted much time and attention to the question of legality of the conflict. The then Foreign Secretary, Jack Straw, debated this question both with his own legal advisers and with the Attorney General. Marko has discussed some of this correspondence  between Jack Straw and Michael Wood (the FCO Legal Adviser) in his earlier post. Readers can view the correspondence and record of meetings between Straw and the Attorney General, Lord Goldsmith here and here. Perhaps more important is the discussion of the legal question by the Prime Minister. In his own evidence before the Iraq Inquiry, Tony Blair spent quite some time dealing with the legal question.

Of course, the fact that the legal issue was discussed does not by itself indicate that the legality of the war under international law was regarded as important by policy makers. However, what is significant is not just that the matter was discussed but that senior policy makers engaged with it seriously. As it happens the two political figures in the UK that had primary responsibility for shaping the Iraq policy in 2002 were lawyers – Tony Blair and Jack Straw. Perhaps this made it easier and more natural for them to engage with the law. Jack Straw in a letter of 6 Feb. 2003 spent 6 pages on the interpretation and significance of Res. 1441. In all probability he drafted this letter himself since we know that his legal advisers took a different from the view expressed in this letter.  Not only did senior policy makers engage with international law seriously, they regarded it as a matter of importance. In his appearance before the Inquiry, Tony Blair stated that: 

 There was then the legal question, which was very important, because Peter [Lord Goldsmith] had drawn my attention to that. [p. 99 Transcript of Blair Evidence]

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Late last year, we posted some reflections by myself and Elizabeth Prochaska on the pending Canadian Supreme Court case of the Prime Minister & Ors v Omar Khadr.

The court handed down its decision today, allowing the Prime Minister’s appeal in part. The court held that the trial court’s remedial discretion had miscarried and that an order directing the Prime Minister of Canada to seek Khadr’s repatriation was – at least for now – an impermissible intrusion upon the Executive’s prerogative in foreign affairs.

The result is disappointing, from the point of view of those of us who had hoped that the Supreme Court might force the hand of the Harper government by ordering to do what it has steadfastly refused to do – request Khadr’s return to Canada after seven and a half years in GTMO.

However, the decision (which was unanimous) is an interesting combination of deference to executive decision-making on the matter of requesting repatriation, and categorical condemnation of Canadian agents’ complicity in an abusive detention and interrogation regime.

The court held:

[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case  did not conform to the principles of fundamental justice. That conduct may be briefly reviewed.  The statements taken by CSIS and DFAIT were obtained through participation  in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus.It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in  Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld).  In conducting their interviews, CSIS officials had control over the questions asked and the subject matter of the interviews (Transcript of cross-examination on Affidavit of Mr. Hopper, Exhibit “GG” to Affidavit of Lt. Cdr. William Kuebler, March 2, 2005 (J.R., vol. III, at p. 313, at p. 22)). Canadian officials also knew that the U.S. authorities would have full access to the contents of the interrogations (as Canadian officials sought no restrictions on their use) by virtue of their audio and video recording (CSIS’s Role in the Matter of Omar Khadr, at pp. 11-12).  The purpose of the interviews was for intelligence gathering and not criminal investigation.  While in some contexts there may be an important distinction between those interviews conducted for the purpose of intelligence gathering and those conducted in criminal investigations, here, the distinction loses its significance.  Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations.  Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past.  But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future.  The impact of the breaches is thus perpetuated into the present.  When past acts violate present liberties, a present remedy may be required. Read the rest of this entry »

Part 1 available here.

Today’s testimony of Lord Goldsmith before the Iraq Inquiry (BBC report) was mostly focused on revisiting the revival argument for the invasion of Iraq. Lord Goldsmith gave a reasonably strong performance in defending his sudden change of position in the advent of the war, when he in the space of a few weeks or so first provisionally advised that Resolution 1441 was insufficient to revive the UNSCR 678 authorization to use force, only to come the other way around in his final advice just a few days before bombs started raining on Baghdad. Though my impression is that the Inquiry members were less impressed by his testimony than they were by the FCO legal advisors’ yesterday, it still cannot be said that the Inquiry exposed Lord Goldsmith as cravenly caving to political pressure or giving manifestly mistaken advice – he is far too good a lawyer for that to have been reasonably expected, let alone happened.

In short, his explanation of his change of position was as follows: it was the result of his combined discussions with Sir Jeremy Greenstock, the UK ambassador to the UN at the time, Jack Straw, and US legal advisors in Washington, who were all intimately involved in the drafting of Resolution 1441. Their account of the drafting history, which he took into consideration, was that the Americans had a so-called ‘red line:’ because they already thought that they had implied UNSC authorization to act and did not need Resolution 1441 for that purpose, they would have never allowed the adoption of this resolution if its terms held or implied that a further UNSC decision would be needed for the invasion to take place. Thus, because it would have been highly improbable that the resolution as adopted did this since the American negotiators were far too skilled to have allowed this, Goldsmith now thought that the better view was that the Resolution did not require a further decision, implicitly or otherwise, and that the revival of the prior authorization could properly take place.

Now, this is all extremely confusing, and both Goldsmith and his most persistent inquisitor, Sir Roderick Lyne, were running circles around each other for quite some time. Sir Roderick rightly pointed out that this argument presumes that the American negotiators could not have failed in their endeavours and that other parties did not have their own ‘red lines’, and also, as Michael Wood said yesterday, that it is somewhat odd to rely so much on essentially private accounts of the drafting history, rather than on the officially recorded public statements made by various state representatives in the UNSC after the adoption of Resolution 1441. These are all valid criticisms – but there is also a more subtle non sequitur here, which the questioning did not expose fully.

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Today was the start of an extraordinary week for assessing the impact international law had on the decision of the US, the UK and their allies in going to war with Iraq in 2003. The UK Iraq Inquiry today heard the testimony of Sir Michael Wood, the Foreign and Commonwealth Office Legal Advisor from 1999 to 2006, and Elizabeth Wilmshurst, the Deputy Legal Advisor at the time of the Iraq war, who resigned from her post once the invasion began (BBC report). Tomorrow the Inquiry will hear the testimony of Lord Goldsmith, at the time the Attorney General , empowered to give authoritative legal advice to the government, who ultimately, after much procrastination and indeed after shifting his own position, ruled the invasion to be lawful. On Friday it will be Tony Blair’s turn.

The Inquiry, which is advised on legal matters by the former ICJ President Rosalyn Higgins (for more, see Dapo’s earlier post), focused on the main legal rationale for the invasion – the so-called revival argument. In brief, this argument posits that Resolution 1441’s finding that Iraq was in material breach of previous Security Council resolution, and Iraq’s failure to take the final opportunity that the UNSC gave it to comply, revived the authorization for the use of force in UNSC Res 678, that was suspended but not extinguished by UNSC Res 687. The Inquiry’s investigation also raises many issues regarding the proper role of government legal advisors, that will be the main subject of this post.

The readers might recall our previous post on declassified memoranda on the lawfulness of the Iraq war by the US Department of Justice Office of the Legal Counsel, which like the Attorney-General in the UK provides authoritative legal advice to the executive. Like Lord Goldsmith, the OLC thought the revival argument to be correct, but it did so with far less caveats than their UK counterpart. On the other hand, it now transpires that the FCO Legal Advisor’s consistent advice had been that the revival argument just does not work on the text of Resolution 1441, which if properly interpreted requires further UNSC action. The Iraq Inquiry website now has several declassified memos and other correspondence from the FCO Legal Advisor to various government officials. (Incidentally, I don’t think that the US State Department Legal Advisor’s memoranda on the Iraq war have been declassified yet, unlike the OLC ones). These documents are invaluable for assessing the decision-making process in the lead-up to the Iraq war.

As Sir Michael’s testimony began, several new documents were declassified and were contemporaneously used by the Inquiry. The one which struck me the most was a letter by Jack Straw, then the Foreign Secretary, to Sir Michael in response to his legal advice that the invasion would be unlawful without further UNSC action, stating the following:

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