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Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Published on May 25, 2011        Author: 

Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

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An Overview of Disobeying the Security Council

Published on May 24, 2011        Author: 

I. Introduction

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

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ILR Returns

Published on May 23, 2011        Author: 

Jacob Cogan has just let us know that he is restarting his blog, the International Law Reporter, after a three month break. Those are welcome news! ILR has been an invaluable resource, and many thanks are due to Jacob for his effort, as well as to Don Anton who has recently started his weekly international law digest.

On a different note, the Disobeying the Security Council book discussion will start tomorrow, due to the volume of posts today.

 

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ICC Prosecutor Seeks to Open Investigation into Situation in Cote d’Ivoire

Published on May 23, 2011        Author: 

The ICC Prosecutor has announced that he intends to request permission from a Pre-Trial Chamber to open investigations into the situation in Cote d’Ivoire since 28 Nov. 2010. Assuming permission is granted, this will be second situation (after Kenya) in which the Prosecutor will have begun investigation into a situation in the exercise of his powers to act propio motu. It will also be the 7th situation before the Court. Importantly, it will be the first situation in which the Court seeks to exercise jurisdiction over a non-party who has accepted the Court’s jurisdiction under Article 12(3) of the Court’s Statute. Cote d’Ivoire accepted the jurisdiction of the Court under Art. 12(3) in 2002 and this has been reconfirmed (twice) by the newly elected (and newly seated) president Alassane Outtara.

It is not clear to me why Cote d’Ivoire does not just ratify the Statute rather than use accceptance under Art. 12(3). If anyone knows please do add a comment below.

All seven situation countries in which the ICC is conducting investigations and prosecutions are in Africa. This has given rise to tensions between some African leaders, the African Union and the Court (see here and here). There have been  allegations that the Court is somehow acting unfairly against Africa in its selection of situations. The addition of Cote d’Ivoire will fuel these allegations. However, it ought not to given that the leaders in  Cote d’Ivoire seem to have been rather keen on ICC action. The country is not a party and could have abstained from accepting the Court’s jurisdiction or even revoked that acceptance after having first made it in 2003. Instead the acceptance has been confirmed twice in the last 5 months. It is not quite a self referral (and it is not clear to me if a non-party can refer a situation to the ICC) but it is as close as it gets. This means that four of the seven situations before the ICC have been initiated by the African countries concerned and even the Kenyan situation originated from a Kenyan domestic process.

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The ICC Prosecutor Requests an Arrest Warrant for Gaddafi: Immunity Issues and Questions about the Start of the Libyan Armed Conflict

Published on May 23, 2011        Author: 

Last Monday, the ICC Prosecutor requested that an International Criminal Court (ICC) Pre-Trial Chamber issue warrants for the arrest of Libyan leader Muammar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al‐Senussi who is head of military intelligence in Libya (and Gaddafi’ brother in law). All three are accused by the Prosecutor of commiting crimes against humanity in Libya. Libya is not a party to the ICC statute  and the situation in Libya was referred to the ICC by the United Nations Security Council in Resolution 1970 .

There are a few interesting thing to note about the request. First of all, there are, of course, similarities with the Bashir arrest warrant. But there are also differences. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. As we have noted on this blog in many previous posts (search for ‘Bashir’ on the right), the fact that a head of State is indicted raises issues of the immunity. The issue is not straight forward but I have argued that the effect of the Security Council referral is that Sudan (now read Libya) is to be treated as bound by the Rome Statute with the effect that Article 27 which removes international law immunities for parties has the same effect for that State. However, I have also criticised the Judges of the ICC for not addressing the immunity question. In the Gaddafi case, at least at this stage, the international law immunity issue does not yet arise, or at least does not arise in the same way. Read the rest of this entry…

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Book Discussion: Disobeying the Security Council

Published on May 21, 2011        Author: 

I am happy to announce that this week we will be hosting a discussion on Antonios Tzanakopoulos’ new book with OUP, Disobeying the Security Council: Countermeasures against Wrongful Sanctions. Antonios is lecturer in international law at the University of Glasgow School of Law, and is of course well-known to the readers of this blog as author of many insightful posts. He will start the discussion on Monday by outlining the main arguments of his book. Comments by Erika de Wet, professor of international law at the universities of Pretoria and Amsterdam, Matthew Happold, professor of international law at the University of Luxembourg, and myself will follow over the course of the week, while Antonios will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.

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Is IMF Managing Director (DSK) Entitled to Immunity from Prosecution?

Published on May 18, 2011        Author: 

I intended to write a post explaining why International Monetary Fund (IMF) Managing Director, Dominique Strauss-Kahn (DSK), does not have immunity under the applicable treaties dealing with the immunity of the IMF and its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although Article VI, Section 22 of the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies provides that “the executive head of each specialized agency . . . the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”, and even though diplomatic envoys have absolute immunity from criminal jurisdiction of foreign States, the United States is not a party to that treaty. This means that the only relevant treaty is the IMF Articles of Agreement which provides in Article IX, Section 8(i) that IMF Staff, “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” Thus, as Chimene puts, DSK does not have status immunity (or diplomatic immunity) but only official act (or functional) immunity. The latter immunity only covers acts carried out in official capacity and it is difficult to see how the alleged acts could have been carried out in an official capacity. So, the matter as regards the relevant treaties (and the relevant US federal statute -  The International Organization Immunities Act, 1945 22 USC § 288d(b)) appears to be quite straight forward. However, I wonder if that is the end of the matter. Could it be claimed that DSK has diplomatic immunity under customary international law which the US is bound to respect? If he were the head of a foreign State then customary international law would obviously be relevant. But do international organizations and their employees have immunity under customary international law? Are US courts bound to respect such immunity? There is actually a plausible case that the broader immunities in the Convention on Specialised Agencies represent customary international law but I don’t think this is at all certain and suspect that the courts will not accept that view. Nonetheless, I set out the argument below. Read the rest of this entry…

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Waiting for Godot: An Analysis of the ICJ Kosovo Advisory Opinion

Published on May 13, 2011        Author: 

Dov Jacobs and Yannick Radi are both postdoctoral researchers at the Amsterdam Center of International Law, University of Amsterdam

[the post has been revised since it first went up]

In an article just published by the Leiden Journal of International Law, entitled Waiting For Godot: An Analysis of the Advisory Opinion on Kosovo, we revisit the advisory opinion issued by the ICJ on 22 July 2010. Two years after the United Nations General Assembly (UNGA) submitted a request in relation to the February 2008 Declaration of independence of Kosovo, the Court issued found that the declaration was not in violation of international law.

This opinion gave rise to a number of commentaries which discussed various aspects of the case. Here on EJIL Talk!, See the extensive preview of the legal issues of the case before the issuance of the opinion by Marko Milanovic and the subsequent analysis by Dapo Akande. Elsewhere, you can refer to the initial analysis by Dov Jacobs over at Spreading the Jam (here and here) and the comprehensive online symposium on The Hague Justice Portal. These commentaries usually isolate a topic related to the opinion (exercise of discretion, self-determination, the application of international law to individuals…) and deconstruct the reasoning of the Court in relation to it.

In our article, we try to explain more generally, the feeling that something is missing in the decision irrespective of the specific flaws in the legal reasoning of the Court, which gives the impression that we are waiting for something that will never come, in essence waiting for Godot.

In a nutshell, we argue that the main problem with the opinion is that the ICJ accepted to respond to a question that did not concern its core ratione personae jurisdiction which is primarily States and the UN. By considering the conduct of non-State entities, the ICJ let itself be dragged in a sort of twilight zone of international law where its conclusions could in fact not make sense.

The article therefore highlights the inconsistencies in the Court’s logic and how they relate to this ratione personae issue, and, ultimately suggests that the ICJ should have looked beyond the conduct of the authors of the declaration, to the responsibility of the UN, as the administrator of the territory, and the responsibility of Kosovo, which we argue, was implicitly recognized by the Court as an autonomous State.

As an illustration of our reasoning, here are two points of interest in our article.

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Call of Papers: The Eichmann Trial at 50

Published on May 10, 2011        Author: 

Kevin Heller sends on this very interesting call for papers – it’s bound to be an excellent symposium.

 

THE EICHMANN TRIAL AT 50

A two-day international symposium to discuss one of the most important trials of the 20th Century

Melbourne Law School

14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson

CALL FOR PAPERS

Deadline for Abstracts: 15 June 2011

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem.  The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world.  Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death.  Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

2011 marks the 50th anniversary of the Eichmann trial.  The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other.  The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial.  The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.”  The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish.  Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o Cathy Hutton, the APCML Administrator (c.hutton {at} unimelb.edu(.)au).  Doctoral students are welcome to submit abstracts.  Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin at kheller {at} unimelb.edu(.)au.

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When to Kill and When to Capture?

Published on May 6, 2011        Author: 

My previous post on the Osama bin Laden killing and a number of posts at Opinio Juris have attracted a very productive discussion in the comments, which I would recommend to all readers who haven’t seen it already. The key issue that has emerged in this discussion is whether the legality of OBL’s killing depends on whether the US forces could have captured him through non-lethal means rather than killed him; if they could have, then according to some commentators they should have, and if they didn’t the killing was unlawful. Other commentators dispute this argument quite strongly. I offered some tentative thoughts on this in my earlier post, which I’ll develop here further, particularly as more pertinent facts have emerged since.

Let me first outline my view on the applicable law. To simplify matters, let us accept arguendo that I am right that human rights law, namely the ICCPR, applied extraterritorially to the killing of bin Laden, i.e. that the US had the obligation to respect OBL’s rights under the treaty and not deprive him of life arbitrarily, per Art. 6 ICCPR. Let us also accept that I am wrong in saying that IHL was probably inapplicable to his killing, and postulate further not only that IHL applied, but that OBL was a lawful target in some armed conflict of whatever nature (e.g. as a member of an organized group, or as a civilian directly participating in hostilities). Or, if you will, let us just postulate that OBL was killed in Abbottsville, Ohio rather than in Abbottabad, Pakistan. By so doing, we would be dealing with a military strike by a state within its territory in the course of an armed conflict, international or non-international, and would thus be avoiding the issues of self-defense/jus ad bellum and the extraterritorial application of human rights treaties which are not pertinent for the following analysis. The central issue that I will be dealing with will be the relationship between IHL and IHRL.  (My more exhaustive examination of this topic can be found in this article, which I will drawing upon for the purposes of this post).

First, what do the two bodies of law say about intentional deprivations of life? The situation is, in my view, relatively clear under both regimes. Under IHL, the lawfulness of attacking a target depends on its status (which we’ve postulated for the purposes of this post). A combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated. Contrary to some recent suggestions by Nils Melzer, both in the course of his academic work and in the ICRC DPH guidance, IHL does not impose a necessity requirement for attacking a target possessing such a status. In other words, there is under IHL no obligation to first employ non-lethal means against a lawful target, or to capture or detain before trying to kill. Shooting first is perfectly proper. Thus, again postulating some relevant type of status for OBL, under IHL he could have been shot and killed at any time. The fact that he himself was not carrying a weapon is immaterial; he would still have been a lawful target due to his status, just like Ghaddafi is a perfectly lawful target despite not carrying any arms under those flowing robes of his. The only way in which OBL could immunize himself from targeting would be if he clearly announced his intention to surrender or was incapacitated, i.e. rendered hors de combat.

IHRL, on the other hand, does not vary its protections on the basis of an individual’s status, and is of course far more life-protective than IHL. Deliberate use of lethal force is lawful only if absolutely necessary; non-lethal means must be exhausted first. A person may be targeted only if he poses danger to the lives of others; the danger should generally be immediate, but that requirement might perhaps be loosened if the level of danger is higher. But even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible to do so, bearing in mind all of the circumstances. Thus, if it was in fact perfectly possible for the Navy SEALS to kill OBL’s armed cronies and then to capture OBL himself, then OBL should not have been killed; his death would have been an arbitrary deprivation of life within the meaning of Art. 6 ICCPR. This is obviously a highly fact-dependent assessment, and we still don’t know all the facts – and we may never do. In making this assessment, it would be necessary to weigh the risk to the lives of others, including the US soldiers, in attempting to capture OBL alive, as well as the risk that he might escape if non-lethal means were used. In any case, however, OBL couldn’t have been lawfully killed simply because it was (vastly) easier than detaining him and putting him on trial. Similarly, so long as capture was practically feasible, the fact that OBL did not take active steps to surrender (rendering himself hors de combat in terms of IHL) doesn’t mean that he could have been targeted, as he was unarmed and posed no immediate danger to anyone.

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