We are sad to report the passing of Antonio Cassese, one of the greatest international lawyers of his generation and one of the EJIL’s founders. Nino worked tirelessly despite his illness almost until the end, having resigned as president of the STL just a few weeks ago. Few scholars have had as much impact, or were so gracious towards others. He will be missed.
The European Society of International Law has announced a call for papers for the Valencia conference in September 2012 (note that there has been a slight change of dates with regard to what was previously advertised). The PDF of the call for papers with all off the relevant deadlines and information is here: CfP English.
Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.
At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.
At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.
Some Problems with the Kenyan Invocation of the Right to Self-Defence
According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.
From time to time we have had discussions on this blog about the classification of extraterritorial or transnational conflicts between States and non-State groups. In other words, when States use force abroad against non-State groups, does this lead to an armed conflict between the State and the non-State group? If so, what law applies to that armed conflict, the law of international armed conflict or that of non-international armed conflicts. In most cases, when we’ve had this discussion the focus has been the situation between the US and Al Qaeda. Earlier discussions of this issue can be found in comments to Marko’s post of May 2010 on What Exactly Internationalizes an Internal Armed Conflict?; to Constantin von der Groeben’s post of April 2010 and to my post of March 2009 on the Obama’s Administrations Interpretation of the Authority to Detain At Guantanamo: Some Areas of Progress. As readers will have seen there was renewed discussion of this issue in the comments on Alon Margalit’s recent post on the killing of Bin Laden .
I have given quite a lot of thought to this issue and have recently set out my thoughts on the issue as part of a chapter I am writing on the classification of armed conflicts. The chapter is part of a project on Classification of Conflicts being undertaken under the auspices of the International Law Programme at Chatham House. The project is led by Elizabeth Wilmhurst and includes distinguished academics and practitioners of international humanitarian law (mainly on this side of the Atlantic). Members of the group include Michael Schmitt (now at the US Naval War College), Jelena Pejic at the ICRC, Professor Francoise Hampson (Essex University), Professor Iain Scobbie (SOAS) and Dr Noam Lubell (now also at Essex). I am a member of the group. Each of us is tasked with writing a chapter and most chapters deal with issues relating to the classification of particular conflicts (eg Iraq, Afghanistan, Gaza, Lebanon, Colombia, DRC, Al Qaeda). However, some of the chapters deal with general conceptual issues. We have had several delightful meetings at Chatham House to discuss and revise our chapters. Earlier this year, we also held a weekend workshop in Oxford (hosted by the Oxford Institute for Ethics, Law and Armed Conflict). My own chapter seeks to provide a general overview of the legal concepts relevant to classification. The chapter (and indeed the result of the entire project) are not yet published but should be soon. We expect the essays to be collected in a book on Classification of Conflicts. In my chapter, I deal with the history of the distinction between international and non-international armed conflict, the consequences of the distinction and whether it still has validity. The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other violence and conflicts in which UN ‘blue helmets’ are engaged. I conclude with a discussion of extraterritorial conflicts between States and non-State groups.
Those who have read our earlier discussions will know that my view is that where a State uses force against a non-State group on the territory of another State, without the consent of that latter State, the State using force is bound by the law applicable in international armed conflicts. In summary, the use of force by one State on the territory of another, without the consent of the latter leads to an international armd conflict between the two States. Also that conflict is inextricably linked with any conflict with the non-State actor such that the State using force will have to follow the law applicable in international armed conflicts. In my draft, I provide a sustained defence of this position and how it accords with international practice. I also show how the position has the support of most international tribunals. The relevant section of my draft chapter now follows. I invite your comments. Read the rest of this entry…
Michael Waibel is a British Academy Postdoctoral Fellow at the University of Cambridge.
On 7 September 2011, the German Federal Constitutional Court gave judgment in three joined cases regarding the constitutionality of German financial assistance to Greece and of its guarantees to the European Financial Stability Facility (EFSF). The Eurozone rescue efforts are widely seen to stand (or fall) with the government in Berlin. Germany is the largest contributor to the Greek rescue and the EFSF with more than 27 percent, or 119 billion €, of the 440 billion € in guarantees and one of only six AAA-rated sovereigns remaining in the Eurozone (alongside Austria, France, Finland, Luxembourg and the Netherlands).
Financial markets breathed a collective sigh of relief once the court upheld the rescue measures, even though few had expected the Court to strike down the laws authorizing the German guarantees. They had waited for word from Germany’s highest court with a mix of anxiety and hope. The decision removed an important source of uncertainty that had weighted on financial markets over the summer of 2011. At the same time, the judgment also raises several questions with regard to German participation in future rescue efforts, and in particular, how far fiscal integration in the European Union may go without infringing the German constitution.
The threat of constitutional review limited the German government’s room for manoeuvre in the Eurozone crisis, slowed down the policy response and explains some features of the ongoing rescue efforts, such as the structure of the EFSF and the requirement of strict conditionality attached to financial assistance to struggling Eurozone economies. The Constitutional Court has been a central player in the drama surrounding the efforts to resolve the Greek debt crisis. In a telling sign of the court’s importance, Chancellor Merkel postponed her intervention in the general budgetary debate on 7 September in the German Parliament to await the court’s ruling.
Sarah Fulton is International Legal Officer at REDRESS.
The trial and sentencing of 20 medical professionals in Bahrain in the past two weeks has again turned the spotlight on the small Gulf Kingdom’s unfinished ‘Arab Spring’ and the repressive methods used to contain it.
The sentencing of doctors, nurses and paramedics who treated injured protesters to imprisonment of five to fifteen years has grabbed the world’s attention in a way that trials of others involved in protests in Bahrain – including human rights activists, bloggers, and teachers – has not. Imprisoning doctors, it seems, is a step too far – a signal taken on board by the government, which announced last week that the 20 will be retried in a civilian court.
The strong international reaction that the case has provoked focuses attention on the value placed on respect for medical neutrality in times of conflict and civil unrest.
In the wake of popular uprisings in Egypt and Tunisia, Bahrain too saw mass protests in February and March from citizens demanding constitutional change. Although initially tolerated by the regime, the protesters quickly faced a sharp crackdown, as security forces backed by tanks and helicopters drove them out of Pearl Roundabout where they had gathered. In the aftermath and over the following weeks injured protesters were taken to Bahrain’s main hospital for treatment. Medical staff gave interviews to the international media describing the casualties and the injuries that they were seeing, with some of them accusing the government of atrocities. At the same time the grounds of the hospital became a refuge and rallying point for protesters, including some medical staff.
This became a pretext for the regime to treat the hospital as a legitimate military target and on 16 March – the day after a state of emergency had been declared – security forces stormed it. Credible reports tell of security forces setting up checkpoints and stationing military officers to search and check the identity of all those entering the hospital, diverting and attacking ambulances carrying the wounded, beating medical staff, and segregating those with protest-related injuries into one ward where they were beaten. According to Human Rights Watch, this was part of “what appear[ed] to be a systematic campaign … aimed at punishing and intimidating medical professionals suspected of sympathies with protesters and hindering access to health care facilities for persons wounded by security forces”.
Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.
It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team. It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed. The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States. Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law. UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.
Similar statements were made by the EU which described the American operation as “a major achievement”. Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“. In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”
If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns. States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law. Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement. They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”. They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.
This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force? A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards. Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.
To my shame, I’ve only just noticed that Ken Gallant in his excellent book The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) – recently reviewed in the JICJ here – addresses the difficult problem of applying the substantive law of the Rome Statute to situations in which the Court acquires jurisdiction over an individual only ex post facto, i.e. after the commission of the alleged crime, for example under a UNSC referral or on the basis of an Art. 12(3) declaration (pp. 337-343). If, for instance, Gaddafi were to be put on trial before the ICC, and bearing in mind that Libya was never a party to the Rome Statute, can he be prosecuted for crimes or under theories of liability that are specific to the Rome Statute, such as indirect perpetration, which do not reflect customary law? I’ve written about this problem in my JICJ articles on whether the Rome Statute is binding on individuals and on aggression and legality. Ken argues (pp. 342-343), and I fully agree, that:
The possible retroactive application of non-customary international criminal law, especially after a Security Council referral, is not an imaginary problem. Many of the framers of the ICC Statute sought a progressive development of international criminal law and procedure. Therefore, they did not necessarily limit their drafting of the criminal law of the statute to that which was customary international law. It is not self-evident that all of the crimes listed in the statute are customary international law crimes.
Some respected commentators have suggested that all of the crimes set forth in the ICC Statute automatically apply when the Security Council has referred a situation to the ICC. This would be inconsistent with the legality analysis both of the statute and of international human rights law and with fundamental rules of treaty law.
Schabas, for example, claims that such an application would be permissible because it is “foreseeable” that the court would attempt to apply the statute to such people. The problem with this argument is that the states adopting the ICC Statute have no authority to prescribe new criminal law either for non-ICC states or for persons with no relevant connection to any ICC state. The ICC Statute can apply to a national of a non-ICC state who commits a criminal act in, or with effect in, an ICC state, as an instance of territorial jurisdiction. The states adopting the ICC Statute could not make law to apply to someone who is wholly unconnected with any ICC state party, and whose allegedly criminal acts are unconnected with such a state party, unless the crime were a customary international law crime over which there is universal jurisdiction (which, by hypothesis, the crime here is not). Foreseeability in the sense of legality can include a development in the law of a jurisdiction with legitimate authority over a person. It cannot mean foreseeability that an international organization will later attempt to impose its prescriptive jurisdiction on a person over whom it has no legitimate authority.
Schabas argues that the application of new, non-customary crimes in the ICC Statute to such persons is acceptable by pointing out that aggressive war was effectively a new crime at Nuremberg. The problem with this argument is that international human rights law has changed since that time. The claim by the Nuremberg Tribunal that nullum crimen sine lege was, in international law, merely a principle of justice was true then but is not so now. Now it is a rule of customary international law and perhaps a jus cogens rule at that.
International Law Weekend 2011 — the world-famous gathering of the flock of international lawyers for the fall season — begins on Thursday night, October 20, 2011, at the Association of the Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. on Friday and Saturday, October 21-22, at Fordham Law School, at 140 West 62nd Street, NYC. This year’s theme is “International Law and National Politics.”
A blue ribbon opening panel at 6:30 p.m. on Thursday night at the City Bar will address whether international law has seen “The Death of Sovereignty?” in an era of debt downgrades, seccesionist conflicts, and covert military operations — and will be followed by a free wine and cheese reception.
Panels starting at 9 a.m. on Friday at Fordham will look at International Law and U.S. Grand Strategy, the Extraterritorial Reach of Anti-Bribery Legislation Libel Tourism, the UN Disabilities Convention, Sharia and U.S. Law, Developments in Commercial Arbitration, Access to Justice in the Middle East North Africa Region, Regulation of Private Military and Security Companeis, LGBT Rights in Africa, and the Impact of the European Union’s Lisbon Treaty on National Politics. State Department Legal Adviser Harold Koh will give a keynote talk at 1:30 p.m. on Friday, after a free buffet lunch in the atrium, on “International Lawyering for the U.S. in an Age of Smart Power.”
Panels starting at 9 a.m. on Saturday include Civilian Casualties in Modern War, Corporate Social Responsibility and Human Rights Law – Emerging Risks for Corporate Counsel, Private Litigation against Alleged Terrorist Sponsors, Intellectual Property Law, the New International Investment Arbitration Lawyer, Current Challenges for the International Criminal Court, Tribunal Procedures and Ethical Dilemmas for the Guantanamo Bay Military Tribunals, and Promoting Independence for Human Rights Lawyers Worldwide. Former Yugoslav Tribunal Prosecutor Richard Goldstone will give a keynote address at 4:15 p.m. on Saturday on “The Future of International Criminal Justice: The Crucial Role of the United States.”
As always, admission is free for all students, all faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York. Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free. The registration fee remains a modest $75 for the two days combined for all other practicing lawyers and members of the public.
We have a record number of co-sponsors this year, whose generous contributions makes the event possible. New sponsors include the International Bar Association, and law faculties from as far north as Maine and as far south as Virgina. Further information and registration is available at www.ila-americanbranch.org or www.ilsa.org, or at the door
The official application submitted by Palestine for UN membership is now available here, UN Doc. S/2011/592 (h/t Diane Marie Amann). It is of interest not the least because it has been carefully drafted and with the benefit of substantial legal advice. Note, first, how Mahmoud Abbas is not titled President of the Palestinian National Authority, but as President of the State of Palestine (he was appointed as such some years ago by the PLO). Note also how for good reason the letter does not say when exactly Palestine became a state, nor does it declare Palestine’s independence anew; rather, it refers to the 15 November 1988 DoI.