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The Application of Universal Jurisdiction in South African Law

Published on April 24, 2012        Author: 

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. Read the rest of this entry…

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The European Emissions Trading System and Extraterritorial Jurisdiction

Published on April 23, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The history of clashes over extraterritorial jurisdiction between the United States and the European Union (and European States) is long. On several occasions, the EU and European States have objected to the enactment and enforcement of US legislation. Good examples are European objections made in connection with the US’ Helms-Burton Act (imposing sanctions on Cuba), the D’Amato Act (dealing with sanctions on Iran) and also the Alien Tort Claims Act. This tradition might however be about to reverse itself.  The EU is itself facing mounting criticism over its decision to include emissions from foreign aviation within the European Emissions Trading System (ETS). Several States and airlines have objected to the inclusion with in the European ETS of aircraft emissions over the high seas and over foreign territory. Some States objected to these additions to the ETS even before they came into force. The most dramatic expression of such opposition came with a Joint Declaration issued in September 2011 by 21 States (including the US, Japan, India, Russia and China). The signatories declared that the EU’s plan to include extraterritorial emissions within the ETS was “inconsistent with applicable international law.” The declaration called upon the International Civil Aviation Organization (ICAO) to continue its efforts to address emissions from aviation. In addition, China and Russia suggested unilateral retaliation, whereas the US declared that it would respond with “appropriate action” if the extension of the ETS scheme went ahead. On 24 October 2011 the US House of Representatives overwhelmingly voted in favour of legislation, which prohibits “an operator of a civil aircraft of the United States from participating in any emissions trading scheme unilateral ly established by the European Union.”Also China has reportedly banned its airlines from participating in the ETS without governmental approval. The latter measures are in line with established State practice, whereby objecting States adopt so-called ‘blocking laws’, prohibiting compliance with the disputed legislation (see e.g. EC Regulation 2271/96).

On 21 December 2011, the European Court of Justice (ECJ) handed down a long awaited judgement (C‑366/10) in a case brought by a group of leading US airlines and trade associations. The claimants argued that the inclusion within the ETS of aircraft emissions over the high seas and foreign territory violated the EU’s treaty obligations and amounted to an impermissible form of extraterritorial legislative jurisdiction. The ECJ found no violation of international law. Several States have however contested the Court’s findings and a trade war may be looming. The matter at issue raises several fundamental questions concerning jurisdiction and sovereignty. The present note reviews the Court’s reasoning, providing a commentary on a matter that is likely to preoccupy international lawyers for some time to come.

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Symposium on ExtraTerritorial Jurisdiction

Published on April 20, 2012        Author: 

One of the topics that will be taught in any basic course on public international law is “Jurisdiction”. By this is meant the jurisdiction of States and as Rosalyn Higgins explains in her book Problems and Process: International Law and How We Use It, questions of State jurisdiction are questions relating to allocation of competence. The question is which State has the competence to regulate persons, property and events. Questions of jurisdiction will often arise, in the first place, in the relations between States and private persons, as those persons argue that this or that State ought not to apply its law or its judicial powers to the activities of that person. However, since jurisdiction is about the allocation of competence between States, jurisdictional disputes often, and almost inevitably, become inter-State disputes.

There were numerous inter-State disputes on jurisdiction from the 1970s till the end of the 20th century about the United States’ application of the effects doctrine to economic regulation (primarily competition or anti-trust law) and about US extraterritorial application of its sanctions laws (eg sanctions on the Soviet Union in the early 80s or on Cuba or Iran in the mid 90s). There appeared to be a lull on those types of disputes and accommodations seem to have been reached. However, the rise of international criminal law at the end of that century and the increased resort to universal jurisdiction has led to a different set of inter-State disputes about extraterritorial State jurisdiction. In this area, it is European States -the main complainants in disputes with the US – that have most often been the object of complaints of overreaching. Those complaints have been voiced (often very loudly) by African States, by Israel, by Latin American States, and also by the US. Recent developments suggest disputes over jurisdiction are not going away and are as prevalent as ever. In some contexts it is thought that the adoption of international law rules in an area of law would reduce the disputes about jurisdiction (since harmonization of substantive law means that whoever does regulate would apply the same rules anyway). But the debates surrounding the application of universal jurisdiction for international crimes shows that acceptance of common international law rules on matters of substance does not necessarily mean that there won’t be questions as to who gets to interpret, apply and enforce those roles.

Next week, EJIL:Talk! will be hosting a symposium highlighting recent developments with regard to extraterritorial jurisdiction. Contributions to the symposium will focus on recent cases in three different jurisdictions each of which raises questions about the proper scope of extraterritorial jurisdiction.

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UN Audiovisual Library of International Law

Published on April 19, 2012        Author: 

The Codification Division of the United Nation’s Office of Legal Affairs has developed what is now an extensive serises of video lectures covering a wide range of international law topics. The series is part of the UN Audivisual Library of International Law. . The video lectures are delivered by a very impressive (and impressively diverse) list of international lawyers. They include judges at international tribunals, leading academics and practitioners of international law (see faculty directory). The topics covered are also quite wide ranging. I was invited to record some lectures last year and two of those lectures have just been posted on the website of the audiovisual library. The two lectures of mine that are now up are on: “The Prohibition of the Use of Force in International Relations” and “Self Defence”. Lecturers are encougaged to keep their lectures to about 30-40 minutes and it was quite a challenge to deal with such complex material in this amount of time. The other thing that I found particularly difficult was giving a lecture to a camera, without a class of students or other audience. I have given media interviews to camera but they are relatively short. A whole lecture to camera was a new experience for me. I usually try to develop some sort of eye connection with a class and to take some cues from how they respond (eg further developing points as required or going back over issues that require repetition). Without an audience it was tough to know what pace to adopt.

The Audivisual Library promises to be a great tool for teaching and research in international law. The lecture series are just one part of the library. As the UN Website explains:

The Audiovisual Library consists of three pillars: (1) the Historic  Archives containing documents and audiovisual materials relating to the   negotiation and adoption of significant legal instruments under the auspices of   the United Nations and related agencies since 1945; (2) the Lecture Series featuring a permanent collection of lectures on virtually every subject of   international law given by leading international law scholars and practitioners   from different countries and legal systems; and (3) theResearch Library providing an on-line international law library with links to treaties,   jurisprudence, publications and documents, scholarly writings and research   guides. The Audiovisual Library is available to all individuals and institutions  around the world for free via the Internet.

I congratulate the Office of Legal Affairs, and in particular Virgnia Morris who leads this project, on this work  and commend the audiovisual library to readers.

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Denmark Establishes a Commission of Inquiry into the Wars in Iraq and Afghanistan

Published on April 17, 2012        Author: 

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The Danish Government has decided to appoint a Commission of Inquiry on the Danish involvement in the wars in Iraq and Afghanistan. The terms of agreement for the Commission were sent to the Danish Parliament on 11 April 2012 (available here, in Danish). According to the terms, which are still to be negotiated with the relevant Parliamentary Committee, the Commission has to examine both the legal basis for going to war as well as the conduct of Danish forces on the ground.

The Danish decision to participate in the  in the Iraq war was taken by the Danish Parliament in 2003, but there have long been accusations that information was withheld from Parliament; even that it was misled. The Commission is called upon to  to examine whether the information provided to Parliament was ‘accurate and complete’. It also has to consider the previous Government’s assessment on the legality and the procedure leading up to the decision of going to war. As such, it resembles the Dutch Committee of Inquiry, which was established in March 2009 and the British (Chilcot) enquiry launched in July that same year (discussed, here, here and here)

The Danish Government’s main legal argument for the legality of going to war was the so-called ‘revival argument’ (explained here). In 2010 this argument was dented by the Dutch Inquiry, which found that the relevant Security Council resolutions did not “constitute a mandate for… intervention in 2003” (see full report, in Dutch, here but with conclusions in English from p. 527. Note paras 18-20 of conclusions dealing with international law).

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Kiobel: Corporate Liability under International Law

Published on April 16, 2012        Author: 

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.

On 28 February 2012, the US Supreme Court heard oral arguments in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The case concerns claims brought by a group of 12 Nigerians (“the petitioners”) who allege that various Shell entities (“the respondents”) planned, conspired and facilitated the government of Nigeria’s extrajudicial executions, torture and crimes against humanity in the Ogoni region of the Niger Delta between 1992 and 1995. The case was filed under the Alien Tort Statute (“ATS”), a centuries-old law that has been interpreted by the US Supreme Court to allow foreign victims of human rights abuse to seek civil remedies in US courts.

In the first of two posts on the case, I consider the question of corporate liability under international law. In the second post I will consider the question of the exercise of universal civil jurisdiction by domestic courts under international law.

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Incest in the European Court

Published on April 15, 2012        Author: 

A couple of days ago the European Court of Human Rights decided a strange case, Stübing v Germany (no. 43547/08), judgment. An adult brother and sister engaged in consensual sexual intercourse, a punishable criminal offense in Germany and about a half of other European countries. The brother, applicant in this case, got a prison sentence. The other half of European countries do not criminalize adult incest. The issue before the Court was whether such a criminalization was consistent with the right to private and family life in Article 8 ECHR. The Court said that it was. For analysis, see this excellent post by Daniel Sokol on the UK Human Rights Blog.

What’s so fascinating about this case is that it is ultimately hard to pinpoint the moral, and hence legal justification for punishing adult incest, other than for the ‘yuck’ factor, i.e. a basically emotional response to the violation of a taboo. And this raises the specter of the justification for pure morals legislation generally, as e.g. with regard to the Naked Rambler, about whom I’ve written a few weeks ago. In other words, while the basis for most modern theories of morality or ethics, be they Kantian or utilitarian or what have you, is that morality is essentially a rational process that can be subjected to analysis through human reason, cases like these point to morality as an intuitive, emotional response in human beings. As a legal matter, the question is whether the simple fact that the community finds a particular practice to be incredbily disgusting is in and of itself enough to punish that practice through the mechanisms of the state. If, in other words, it is not okay for a state to criminalize homosexual intercourse merely because the majority of the population finds  the practice to be disgusting (or found it such then) – see Dudgeon v. UK - how could it be okay to punish consensual adult incest merely because we find it to be disgusting?

In that regard, the European Court’s non-response to this question was quite predictable:

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Two ICC Decisions (and one Article) on Libya’s Request to Postpone Surrender of Saif Gaddafi

Published on April 14, 2012        Author: 

Earlier this month, the Pre-Trial Chamber of the International Criminal Court dealing with the case against Saif Gaddafi released two decisions rejecting two requests of the Libyan Government that Libya be allowed to postpone the surrender, to the ICC, of Saif Gaddafi. The first decision was actually issued on 7 March, but was only released on April 4 at the same as the decision rejecting Libya’s second postponement request. As readers will recall, the ICC issued an arrest warrant and a request for surrender for Saif Gaddafi in June last year and Saif has been detained since November last year. However, Libya has insisted on prosecuting Saif Gaddafi in Libya and has refused to hand him over to the ICC. Readers may also recall that Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here, here and here) have engaged in a discussion on whether Libya is entitled to surrender its obligation to surrender Saif to the ICC. Libya’s requests for postponement raise all the issues that Kevin, Jens and I covered in our discussion. While the decisions of the Pre-Trial Chamber answer some of the questions, the Pre-Trial Chamber has not yet answered the central question of whether the obligation of surrender can be postponed in the event of an admissibility challenge based on the principle of complementarity. Hopefully, the ICC will return to this issue soon.

In the meantime, I have written an article  setting out my thoughts on these issues. The article is titled “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” and will be published by the Journal of International Criminal Justice (in May). However, the article is now available for download on SSRN.

In Libya’s first request for postponment of surrender, it stated that it was investigating Saif for various crimes under national law. According to a Guardian article of earlier this week, some of the crimes for which Saif is being investigated include alleged failure to have licences for two camels and cleaning of fish farms!! (though this later Guardian article says the charges will be murder, rape and torture). Read the rest of this entry…

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The Perils of Publishing – Living Under a False Title

Published on April 12, 2012        Author: 

 In the spring of 2010 the late Antonio Cassese requested me to contribute an essay in a volume he was planning on “Realistic Utopias”. I knew that Nino was a great believer in the idea of the “international community” and appreciated his willingness to engage me in a discussion of something he knew I had little faith in. By the end of 2010 I had produced a slightly ironic text that used Sigmund Freud’s famous contemplations of the “oceanic feeling” in Civilization and its Discontents  as the platform over which to think about “international community”. I gave it the title “Projects of World Community”.

During 2011 I heard no more about the matter. As I then read about Nino’s passing away, I assumed that there would probably be no publication at all. Towards the end of the year, however, his collaborator, Professor Paola Gaeta contacted all the contributors, informing them that the project would go ahead, but in order to avoid delays the contributors would not see the proofs. I admit I was worried. Prior experience about publishing texts I did not proofread myself was not encouraging. But I did not react. How stupid of me.

Then in early 2012 the book Realizing Utopia. The Future of International Law came out from Oxford University Press. I was notified of this by email and – like I am sure all the other authors – went immediately and somewhat anxiously to the OUP website to see what it, and especially my essay, looked like. I was happy to notice that the book actually opened with my text. My text, yes, but not my title.  What had read “Projects of World Community” had become “The Subjective Danger of Projects of World Community”. I was stunned. Where had “Subjective Dangers” come from? And what on earth did they mean? I immediately contacted professor Gaeta and the OUP to return to my original title – but of course that was already too late. The book was out. I did receive very sympathetic reactions, however. It was clear that Nino himself had added those words – probably contemplating that he would suggest them to me during proofreading. But then fate intervened. Nino would not live to carry out that process.

And so I am now staring at a title to my essay that is not only incomprehensible but – more damagingly – points in a direction that is against everything I have written. Adding the words ” Subjective Dangers ” to my original “Projects of World Community” undermines the very point of the essay.  The point which both Freud and I are making is that the sense of an “objectively” existing world community is based on a “subjective” feeling about being one with humanity. It points to no “danger” at all. It suggests the usefulness of taking a psychoanalytical approach in trying to understand a phenomenon. Ever since From Apology to Utopia I have been making the point over and over again that the “subjective” and “objective” are so completely enmeshed in  each other that it is impossible, and in fact, ideologically dubious, to try to do separate them. We live in an era where we are often called upon to make “objective” points and to avoid “subjective” feelings. It is this demand that I have repeatedly attacked in my writings.  There is no “objective” point of view at all, though some of us may experience (“oceanic”) feelings that make them believe they are speaking for something larger than themselves. If there is “danger” anywhere, it is not in the subjective nature of our feelings, but our attempt to persuade others that they are based on something grander, or experience something others should feel, too.

But now I have to live with a title that has destroyed that message and has put me in the position that I am attacking. Oh well. In the grander scheme of things, this is a very minuscule problem.  The OUP has promised to insert a slip in the book, reading  “Correction: Readers are advised that the correct title of chapter 1 by Martti Koskenniemi is simply Projects of World Community and it should be cited as such”. I am grateful for this. It does not make the problem go away, however, and some readers will be puzzled over the present title, and some of them will draw the conclusion that I have simply gone crazy. But I suppose this is in the nature of the perils of publishing. After having written the present text, and having spread it out as widely as I can, I will soon forget the matter. I certainly do not want it to stain Nino’s memory in any way; he was cut in the middle of so many activities, of which this was one of the least important. But to draw some benefit out of the situation, perhaps the lesson could be drawn once more: always insist on seeing the proofs.

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Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga.

Published on April 11, 2012        Author: 

Nicole Urban is the Research Fellow in International Humanitarian Law at the British Institute of International and Comparative Law and previously read for an MPhil in Public International Law at the University of Oxford.

Last month the ICC handed down the judgment in its first competed trial, the Lubanga Case. Thomas Lubanga was convicted of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities in conflicts not of an international character, as set out in Article 8(2)(e)(vii) of the Rome Statute. One of the key issues arising out of the judgment is the Trial Chamber’s interpretation of the term ‘active participation in hostilities’. The question of the meaning of the term arose acutely in relation to whether or not sexual violence against children, in the form of sexual slavery and forced marriages of child soldiers, fell within the scope of “active participation in hostilities”. The majority failed to decide on this question and Judge Odio Benito, in her separate and dissenting judgment, expressed understandable disappointment regarding the majority’s inconclusiveness on this issue.

The majority of the Trial Chamber raised, but did not reach a conclusion on, the legal meaning of term “active participation in hostilities”, as used in Article 8(2)(e)(vii). However, the majority found that ‘active participation’, under this provision of the ICC Statute, is a concept distinct from, and broader than, ‘direct participation in hostilities.’ The Court stated

‘The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence…’[para. 627]

This finding is contrary to the position under international humanitarian law [IHL], which treats the terms as synonymous.  The consequences of the majority’s conclusions on this issue are, at this stage, unclear but potentially damaging to the mutually reinforcing relationship between IHL and international criminal law. By setting out this distinction between ‘direct’ and ‘active’, the Majority failed to consider the unintended consequences of its attempt to formulate a broad protection with the regard to the crime of conscripting and enlisting for the protections afforded by Common Article 3 of the Geneva Conventions (1949) and Article 8(c) of the Rome Statute, to those taking no ‘active’ part in hostilities. Equally dangerous is the ambiguous consequences of this ICC decision for the IHL concept of ‘direct’ participation in hostilities and the impact of the decision on those parts of the Rome Statute that incorporate this IHL concept by criminalising attacks on civilians that do not take a “direct” part in hostilities (Articles 8(b)(i) and (e)(i), ICC Statute). This post will set out the position on these issues under both IHL and the Lubanga Case and then consider each of the consequences outlined above.

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