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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.

Read the rest of this entry…

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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.

Read the rest of this entry…

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Was the Killing of Osama bin Laden Lawful?

Published on May 2, 2011        Author: 

Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.

As for the jus ad bellum, it is unclear at this time whether the Pakistani government – parts of whose security apparatus undoubtedly harboured and protected OBL – consented to the use of force by the US on Pakistani soil. The Pakistani government has not yet publicly expressed its views on the matter; all things considered, however, it seems such consent was given. If it was not, then the US would have to argue self-defense in killing OBL, which is of course a complex question. At any rate, it is for Pakistan to raise a jus ad bellum issue, and it does not seem at all politically likely that they will now say, oh yes, we’ve been hiding OBL for years now, but the US had no right to violate our sovereignty.

As for IHL, the jus in bello, it either does not apply at all  as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

As for IHRL, as readers are aware the US argues that the ICCPR does not apply extraterritorially, e.g. to a targeted killing in Pakistan. That position is in my view incorrect. No matter how despicable, OBL was a human being with human rights, and he was protected by the ICCPR – but his human rights were still not violated. IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.

 

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The International Law Commission Embarks on the Second Reading of Draft Articles on the Responsibility of International Organizations

Published on April 30, 2011        Author: 

Jean d’Aspremont and Christiane Ahlborn  are both at the Amsterdam Centre for International Law

On 26 April 2011 the UN International Law Commission (hereafter ILC) began its second reading of the draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (hereafter DARIO). It is well-known that the ILC has been continuously confronted with a lack of clear practice since it began its study on the law of the responsibility of international organizations in 2002. As a result thereof, the Special Rapporteur has often been – mistakenly in our view – accused of yielding to the temptation to proceed on the basis of analogies with the 2001 Articles on the Responsibility of States for International Wrongful Act (hereafter ASR) [see for example, previous EJIL:Talk! Commentary here]. International organizations in particular have been among the most virulent protesters, as they have continuously emphasized the necessity to resist any overgeneralization informed by the ASR and the need to recognize the institutional diversity of the international society. Navigating amid these criticisms, the ILC, under the wise guidance of its Special Rapporteur, has nonetheless managed to adopt a first set of draft articles on first reading in 2009 which strikes a reasonably astute balance between institutional heterogeneity and the need for overarching secondary rules governing the responsibility of all institutional subjects of international law.

The DARIO and the ASR

It is our impression that the DARIO, as adopted on first reading, only partly mirror the ASR; in fact, the differences between the DARIO and ASR are too often underestimated.  The ILC did not only omit or add specific provisions from and to the DARIO (examples are the missing Article 3 of the ASR and the new Articles 16 and 60 of the DARIO, respectively) but also included more subtle changes in the text and structure of the DARIO. In light of the continuing critique during the drafting process, it is interesting – if not paradoxical – that the comments made by international organizations and States in reaction to the whole set of DARIO on first reading especially zero in on those draft provisions that do not or only party resemble the ASR(see here). Read the rest of this entry…

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UN Panel of Experts Report on the Sri Lanka Conflict

Published on April 26, 2011        Author: 

The report of the Panel of Experts appointed by the UN Secretary-General to investigate the circumstances of the conclusion the Sri Lanka war has been made public today – full report here, BBC News article here. The report was disclosed to the Sri Lankan government a few weeks ago; regrettably and quite predictably, the government already dismissed it as incorrect and biased. As in many other cases of conflict and atrocities inspired by ethnic nationalism, several competing versions of reality have already emerged. While the government claims that it pursued a policy of zero civilian casualties, the Panel report paints a very different picture, finding widespread violations of international human rights and humanitarian law on both sides, but particularly on that of the government.

On the legal side of things, one of the appointed experts was the well-respected international lawyer Steve Ratner, professor of international law at the University of Michigan Law School. The report’s discussion of the applicable law and legal findings, at p. 52 et seq, seem to me to be more or less watertight. There are no flights of fancy here; even when broad or progressive, the legal findings are appropriately cautious when caution is warranted (e.g. as to whether non-state actors are bound by human rights, at para. 188).

The Panel has recommended that the Secretary-General establish an independent international investigative mechanism; he has refused to do so absent the consent of the Sri Lankan government or action by other member states. The Sri Lankan conflict has been overshadowed by other events and the international community has been remarkably passive with regard to the war crimes committed in its conclusion. Hopefully this report will not be the end of the matter.

(I would have quoted a number of paragraphs from the report, but whoever made that PDF disabled the copy and paste functions, which is really stupid beyond belief. I do hope somebody fixes that.)

UPDATE: Dov Jacobs has most helpfully created a quotable version of the report, which is available here: http://www.mediafire.com/?tl6szs1uo2991vx

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Call for Papers for The Military Law and the Law of War Review

Published on April 23, 2011        Author: 

The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics.  It is among the oldest publications at the international level in the areas of military/security law and the law of war.  For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world.

On the occasion of the 50th Anniversary of its foundation, a dedicated issue of the Review’s 2011 Volume will deal with ‘The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends’. Another issue of the 2011 Volume will mostly concern the current military operations in Libya.

The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends

Articles related to this topic should in principle be between 2500 and 6000 words long (footnotes included) and should be submitted by 15 July 2011 at the latest.  The Editorial Board welcomes in particular contributions from current/former civilian/military legal advisors who have experience in this field.  Contributions should focus on legal questions associated with the conduct of operations (taking jus in bello and international human rights law, as applicable, duly into account) and may embrace one or more of the strategic, operational, or tactical level perspectives.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 31 August 2011.

Selected papers may also be circulated as background readings at the International Conference on Military Justice, to be held in Rhodes (Greece) from 28 September 2011 to 2 October 2011, organized by the International Society for Military Law and the Law of War.  This conference will see the organization of separate special panel on ‘The Role and Responsibilities of Legal Advisors in the Armed Forces’.  Selected authors will receive an invitation to attend this conference, including the special panel, and may be approached to present their paper to the participants.

This initiative is intended to be the starting point for a continuing global dialogue on the same topic, under the auspices of the International Society for Military Law and the Law of War, with a view to promoting the rule of law worldwide.  It is understood that this dialogue will also benefit from contributions addressing legal aspects of cooperation between armed forces and civilian government agencies as well as with private sector entities (such as contractors and non-governmental organizations).

Military Operations in Libya

Articles discussing legal questions associated with the current military operations in Libya should be submitted by 15 September 2011.  The Editorial Board welcomes brief contributions (about 3000 words – footnotes excluded) as well as larger contributions (about 6500 words – footnotes excluded) from practitioners and scholars.  Focus areas may include – but are not limited to – questions regarding the interpretation and application of Chapter VII of the UN Charter (e.g. the measures carried in the framework of the ‘No-Fly Zone Plus’ and the embargo operations), including in relation to the Responsibility to Protect (in the context of which recent UNSC Resolutions regarding Cote d’Ivoire may also be considered relevant); the manner in which Balkans/Rwanda Lessons Learned have been taken into account in the decision-making process concerning UNSCRs 1970 and 1973; the conduct of operations; and the legal ramifications of the recognition of and cooperation with the Libyan insurgency.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 1 November 2011.

The Editorial Board may be contacted at: soc-mil-law {at} scarlet(.)be

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Interpreting and Applying the UNSC sanctions on Iran in the Admiralty Context: The Sahand [2011] SGHC 27

Published on April 22, 2011        Author: 

Seow Zhixiang is an officer in the Singapore Legal Service. The views here are his own.

 The High Court of Singapore has recently delivered its grounds of decision in a case which considers the impact of the United Nations Security Council (UNSC) sanctions on the Islamic Republic of Iran in an admiralty context. The Sahand [2011] SGHC 27 (available at Singapore Law Watch) involved three merchant vessels – the Sahand, the Tuchal and the Sabalan – which were owned by German companies and arrested in Singapore waters. The German companies were wholly-owned subsidiaries of the Islamic Republic of Iran Shipping Lines (IRISL), the state shipping line of Iran. Certain IRISL entities are subject to the asset freeze imposed by the UNSC on Iranian entities, and the Sahand case illustrates the difficulties that may arise in interpreting the broad language of the relevant resolutions for the purposes of applying them to specific cases, and in identifying links to expressly sanctioned entities. The case also  gives an idea of the disruptive effect that sanctions may have on commercial activities, both by a sanctioned entity and those dealing with it.  These points are not only relevant to the UNSC resolutions on Iran, but also to other similarly worded sanctions.

Read the rest of this entry…

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GoJIL: Student Essay Competition

Published on April 18, 2011        Author: 

Wanted Dead or Alive? The Use of Unmanned Drones in Current Conflicts as a Legal Challenge

Since his inauguration, US President Barack Obama has ordered over 120 drone attacks on Pakistani territory. Targeted killings and the use of drones by the US administration raise serious questions of international law. Are the killings covered by the right to self-defense under the UN Charter? Is the lack of a judicial trial justified under human rights law? Are states allowed to concede the right to kill to other states? These are just a few of the numerous questions you can address in your essay. We are looking forward to your ideas!

Deadline: 29 July 2011.
Max. word count: 3 000 words (without footnotes).

If you would like to write an article or are already working on the subject, send in your essay! The best article will be published in the Goettingen Journal of International Law – GoJIL 3 (2011). If you have any questions, please feel free to contact us at info {at} gojil(.)eu!

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