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One step forward, two steps backward: The ICJ interprets Mexico’s Request for Interpretation of Avena and other Mexican Nationals

Published on February 3, 2009        Author: 
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On 19 January 2009, the International Court of Justice formally declined to interpret its judgment in the Case of Avena and Certain Other Mexican Nationals (Avena), which dealt, as did its “predecessor”, the LaGrand case, with the US non-implementation of the Vienna Convention on Consular Relations. Both LaGrand and Avena ended with the clear finding of the Court that the individuals whose rights under the VCCR had not been respected were entitled to review and reconsideration of their judgments and sentences. Specifically in paragraph 153 (9) (of Avena), which formed part of the dispositif, the Court found

… that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals …by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment.

Failure of the United States to provide such review and reconsideration, would be a breach of its international obligations. In the case of the LaGrands this had been irrevocably the case as they had both been executed in the United States by the time the judgment was delivered. Contrary to the situation in the LaGrand case, all of the individuals whose rights were at issue in the underlying Case of Avena and Certain Other Mexican Nationals were still alive by the time the Court had delivered its judgment on 31 March 2004. In fact, Mr. Medellin was the first for whom an execution date had been set since, which was to be carried out on August 5, 2008. It is in this context that one should put Mexico’s June 5, 2008 filing of a request for interpretation of the Avena judgment, and the request for an order of provisional measures accompanying it, which most importantly sought to halt Mr. Medellin’s execution. With only two months left before Mr. Medellin’s scheduled execution date, the ICJ managed to hold oral arguments and produce an order of provisional measures within the very short timeframe of 41 days.

Judging from Mexico’s initial request, many familiar with Article 60 of the Court’s Statute had early on counted Mexico out. After all, Mexico had the difficult task to convince the Court that it was not simply trying to have another round of proceedings on the United States’ failure to implement Avena. Rather it had to demonstrate that, in the words of Article 60, there was a “dispute as to the meaning or scope of the judgment” allowing the Court to “construe it upon the request of any party”.

Mexico’s initial request seemed ill-equipped to achieve that goal, asking the Court to declare that

..the obligation incumbent upon the United States under paragraph 153(9) of the
Avena Judgment constitutes an obligation of result as it is clearly stated in the
Judgment by the indication that the United States must provide “review and
reconsideration of the convictions and sentences” but leaving it the “means of
its own choosing;”
and that, pursuant to the foregoing obligation of result,
(1) the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena
Judgment; and
(2) the United States must take any and all steps necessary to ensure that
no Mexican national entitled to review and reconsideration under the
Avena Judgment is executed unless and until that review and
reconsideration is completed and it is determined that no prejudice
resulted from the violation.

Taking the request at face value, it seemed that, unless the United States would be gullible enough to maneuver itself into the position of arguing that the review and reconsideration mentioned in paragraph 153(9) of the Avena Judgment did not refer to an obligation of result (but one of conduct), there would be no way for Mexico to demonstrate the existence of a dispute. Read the rest of this entry…

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A Lucky Child, by Thomas Buergenthal

Published on February 1, 2009        Author: 
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I wanted to bring to our readers’ attention a wonderful new book that is not about international law, but is about a great international lawyer. Judge Thomas Buergenthal’s memoir, A Lucky Child, has just been published in the United Kingdom and the United States. It had previously been published in Germany, where it has been a bestseller, and in several other European languages.

In the book, Buergenthal tells the story of his survival as a young boy of the horrors of Holocaust. In that, of course, his story is one shared by so many millions – from the flight of his family from Slovakia to Poland, to their life in the ghetto of Kielce, up to their transport to Auschwitz. What is unique about his story is not just his telling of it, which is formidable, and of course that he lived to tell it, but the very number of occasions where the young boy’s survival was determined not only by his wits and the people who were there to help him, but by sheer luck.

Photo Credit: US Holocaust Museum

Photo Credit: US Holocaust Museum

It is hard to describe a person who found himself in Auschwitz as ‘lucky’, but Buergenthal himself has no better word for it. From the fact that there were none of the infamous selections on the day he arrived in Auschwitz, to his survival of the death march when the camp was being evacuated, to an almost fantastic episode when the 11-year old was adopted as a mascot by the advancing Polish soldiers who took him with them to the Battle of Berlin (giving him his first taste of vodka in the process), up to him being discovered by his mother in a Polish orphanage after the war — there can be no doubt that otherwise fickle Fortune was constantly at his side. Though the narrative is often depressing and will bring you to tears, it is a message of hope that will stay with you once you put the book down.

One can only be grateful that such a man now sits in the Peace Palace in The Hague. Buy the book and read it, and be wiser for it. (Amazon UK, Amazon US).

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Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

Published on January 29, 2009        Author: 
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In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

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A Response to Simon Chesterman “We Can’t Spy….If We Can’t Buy!”

Published on January 26, 2009        Author: 
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Martin Trybus is Professor of European Law and Policy and Director of the Institute of European Law at the BirminghamLawSchool of the University of Birmingham, UK. He is the author of European Defence Procurement Law and European Union Law and Defence Integration and co-edited European Security Law with Nigel White

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

 

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

 

The most striking point highlighted in Chesterman’s article is that the privatisation of intelligence services in the United Sates appears to compromise all three objectives. Read the rest of this entry…

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A Comment on Simon Chesterman on the Privatization of Intelligence

Published on January 25, 2009        Author: 
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Prof. Chesterman’s article does an excellent job in exposing and explaining the phenomenon of the privatization of intelligence in recent years, particularly in the United States. To someone who, like myself, has followed the PMSCs debate only on the margins, the information that 70% of the US intelligence budget is spent on private contractors came as somewhat of a shock.  Chesterman explains very well the accountability and oversight gaps caused by the outsourcing of both intelligence collection and intelligence analysis. Especially troubling, of course, are situations where individuals’ life and liberty are put at the disposal of private contractors, as for example during interrogations or renditions.

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

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

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

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Old Law and New Trends – A Rejoinder to Professor Cryer and Hannah Tonkin

Published on January 24, 2009        Author: 
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Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for  plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

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

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The Privatization of Intelligence

Published on January 23, 2009        Author: 
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Editors note: Over the coming days we will be discussing (see here) Professor Simon Chesterman’s article: “We Can’t Spy . .  . If We Can’t Buy!: The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions”  (2008) 19 EJIL 1055 (available here).

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

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

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

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

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

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

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Response to Carsten Hoppe: Some other Possible State Responsibility Issues

Published on January 21, 2009        Author: 
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Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

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

 

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

  

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

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A Response to Carsten Hoppe: Minimising the regulatory gap – a flexible interpretation of Article 5 of the ILC Articles

Published on January 19, 2009        Author: 
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Editors note: Hannah Tonkin is currently a Law Clerk to President Judge Kirsch in the Appeals Chamber of the International Criminal Court. She is also writing a DPhil at the University of Oxford on States’ International Obligations to Control Private Military and Security Companies.

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

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

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

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

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

There is no international consensus as to the precise scope of’ “governmental authority”.  The very concept requires value judgments, which themselves rest on political assumptions about the proper sphere of state activity.  Read the rest of this entry…

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Online Discussion of Private Military Companies and International Law

Published on January 16, 2009        Author: 
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This is a Featured Post. Some more recent posts appear below.

One of the purposes of this blog is to provide a forum for discussion of the scholarship that appears in the European Journal of International Law. From time to time, we will host  online exchanges which respond to, as well as provide informed commentary and exchanges on articles that appear in EJIL. This exchange of ideas sometimes occur in the print version of the Journal but this inevitably means delays in responses or a lack of an opportunity to have the repeated exchanges that would test ideas and flesh out views. We hope that such an interactive, yet informed and enlightening, conversation can take place on,  and, be enhanced by, this more interactive and quicker forum.

We begin this series by hosting an online discussion (see below)  of some of the articles appearing in the latest issue of the European Journal of International Law (see table of contents here). That issue includes a symposium on “Private Military Contractors and International Law”.  Those papers are the product of a symposium held last June at the European University Institute in Florence as part of a joint effort of the EJIL and the EU Framework Programme 7 project “Regulating Privatization of War: The Role of the EU in Assuring Compliance with International Humanitarian Law and Human Rights ” (for more on that project see http://www.priv-war.eu).  We will be continuing the discussion here over the coming days. In order to facilitate this online discussion of the articles, EJIL is providing free access on its website  to most of the articles in the current issue. Read the rest of this entry…

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