I’d like to draw our readers’ attention to an excellent recent article by Chimene Keitner, ‘Rights Beyond Borders,’ published in the Yale Journal of International Law, and dealing with the extraterritorial application of domestic guarantees of individual rights. It is a timely piece which engages in a comparative examination of relevant US, UK and Canadian case law; there are certainly lessons to be learned here with regard to the extraterritorial application of human rights treaties. A symposium/discussion of the article is available on Opinio Juris.
Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)
2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings. Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy - previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials. Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.
Kazemi v. Iran
At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence. He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…
UPDATE: The full text of the Judgment is now available below; some minor technical issues were fixed.
UPDATE 2: An unofficial translation of the Judgment into English is now available here.
On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in the Criminal Libel Case brought against me based on a complaint by Dr Karine Calvo-Goller. It would appear that the Court ruled in our favor on all issues.
As will be recalled, the case was brought in my capacity as Editor in Chief of the European Journal of International Law and its associated Book Review website www.GlobalLawBooks.org. It was brought as a result of my refusal to remove a Review, written by the distinguished German academic Thomas Weigend, critical of a book written by Dr Karin Calvo-Goller. Dr Calvo-Goller claimed the Review was libelous and demanded its suppression. I offered her a right-of-reply which was declined. Since I did not consider the Review libelous its removal in my view would have seriously compromised academic freedom and the intellectual integrity of EJIL and book reviewing generally. For full details see here.
The Trial took place in Paris on January 20th, 2011 – see here.
Represented by Maitre Thierry Marembert and Cécile Labarbe of the Paris Law Firm Kiejman & Marembert, we made two principal arguments in defense: First, that the Court should not exercise jurisdiction — the case being too remote from France; and second, that it should rule that in the circumstances of the case, initiating a criminal complaint amounted to an abuse of process by the Complainant.
In its Judgment, the Court upheld both claims. On the jurisdictional issue, a highly technical part of the Judgment, it seems to have ruled that although available on the internet, the Complainant did not prove to its satisfaction that the Review was actually accessed in France during the period within which a criminal complaint had to be filed. The full Judgment in French and a translation will be posted on the EJIL blog – www.EJILtalk.org in the next few days. [UPDATE: The full text of the Judgment in French is now available here.]
In ruling on the issue of abuse of process by the Complainant, the Court was able to address the merits of the case. The following are excerpts from the Judgment in unofficial translation.
“….As regards the choice made by the Complainant to invoke French criminal proceedings, though [Karine Calvo-Goller] holds dual French and Israeli nationality, she resides and works in Israel, the book which is the subject of proceedings was written in English, as was the Book Review; [it was] published on an American website, linked to an American university at which Joseph Weiler works; [the Complainant] explained to the Court that she chose to use the French rather than the American or Israeli systems for financial reasons –the cost of proceedings would have been more expensive for her- as well as for reasons of expediency, being of the view that only French law offered her a chance of success;
… Karine Calvo-Goller thus acknowledges having engaged in what one can call “forum shopping”, that is to say a worldwide search, for the legal system which seems the most favorable to the person initiating legal proceedings, and which places her opponent, as much for legal reasons as for practical reasons — geographical or cultural remoteness — in the least favorable situation….[T]he artificial choice in this case, of the French legal system, coupled with the choice of pursuing a criminal procedure by means of a complaint to an Investigating Judge resulting in both opprobrium and significant costs to the accused, characterizes the abuse of these proceedings;
… Karine Calvo-Goller failed to comprehend [respect] the scope of French Press law stating that the Review which was made the subject of the proceedings could be held to be defamatory…. [I]n effect, the Review of her book does not contain words damaging her honor or her reputation, and only expresses, what is more, in moderate terms, a scientific opinion on [her book] without ever exceeding the limits of free criticism to which all authors of intellectual works expose themselves;
… The bad faith of the Complainant –a lawyer, moreover one familiar with French law given her indication that she pursued her law studies in France- is therefore undeniably established;
….It is therefore with just cause, that Joseph Weiler believes that the [Complainant] has abused her right to bring legal proceedings, on the one hand by initiating an action for defamation in relation to words that do not go beyond the limits of academic criticism, an essential element of academic freedom and freedom of expression and, on the other hand, by artificially bringing proceedings through the French criminal justice system.”
Considering the resulting harm suffered by the accused, he will be justly compensated by judgment against the Complainant requiring her to pay to him the sum of €8,000.” [about US$ 11,000]
I hope this brings this sad saga to an end though it should be noted that the Complainant has a right of appeal.
Be that as it may, I would like to thank my legal team, the Dean and faculty of NYU School of Law for moral and material support, and the many letters of encouragement by friends and strangers from around the world. Naturally, any damages will be donated to a charitable cause. As for the Judgment, I will follow the wisdom of the Sages, “Whoever Adds, Detracts.”
The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law
Stefan Talmon is Professor of Public International Law at the University of Oxford.
The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’
Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference
‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’
While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.
On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). Earlier that day, the British Foreign Secretary, William Hague, told BBC1`s Andrew Marr Show:
‘[...] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it`s very clear where we stand on, on his status as a head of state.’
William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.
The revocation of personal immunity and, even more so, the withdrawal of recognition from a serving head of State who continues to control substantial parts of the foreign State`s territory would seem an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.
Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.
Yesterday the UN Security Council unanimously adopted Resolution 1970, whereby it (1) imposed an arms embargo on Lybia; (2) imposed targeted sanctions, including travel bans and asset freezes, on high-level persons in the Lybian regime; (3) and referred the situation in Lybia to the International Criminal Court. This is the second UNSC referral to the ICC, the first after Darfur and the first to be passed unanimously. The full text of the resolution is available here, and a UN press release can be found here.
The resolution also makes several notable findings, such as that the ‘widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’; it also requests Lybia to respect both human rights and IHL, which indicates that the UNSC considers there to be an armed conflict in Lybia, and that IHL and human rights apply in a complementary fashion (this is of course not the first time that the Council has said something similar). Notably with regard to the ICC referral, as with Darfur the resolution does not expressly say that Gaddafi will not be entitled to head of state immunity (assuming that the ‘head of the revolution’ is indeed a head of state under international law), even though that inference may be reasonably drawn – that issue might of course become moot if Gaddafi is actually toppled, which is perhaps more likely than not.
As for the targeted sanctions regime, like with the terrorist sanctions regime before it there is very little here with regard to guarantees of due process for the listed persons. Will the Gaddafis, led perhaps by LSE-PhD holding Saif (who may or may not had plagiarized his PhD on human rights and global governance), follow the bright example of the late Saddam Hussein and file an application with the European Court of Human Rights to protect their (presumable) Swiss millions? Bearing in mind the manifest deficit in the dictatorial psyche when it comes to self-irony, I wouldn’t put it past them.
Stefan Talmon is Professor of Public International Law at the University of Oxford.
A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’
French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.
Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.
Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?
I am sure I speak for everyone in our community when I say that I was saddened to hear that the International Law Reporter blog has had its final post. The ILR has been an invaluable resource for keeping us abreast of new scholarship, and we should all thank Jacob Cogan for providing us with this service for so many years, despite what must have been an enormous time commitment on his part. In his final post, Jacob has expressed the hope that somebody else would take up this challenge, and we all join him in this hope. Restarting the ILR would certainly be a worthwhile project for any scholar or group of scholars, for which I’m sure they could attract some reasonable funding. To the extent that EJIL: Talk! could provide support for any such project, we would be happy to help.
The Harvard International Law Journal’s website has initiated a fascinating series of interviews with leading international lawyers (see here). Thus far, the focus has been on practising international lawyers with experience in government and international organizations. There are recent interviews with John Bellinger III, Legal Adviser at the US State Department from 2005-2009, Larry Johnson, former UN Assistant Secretary General for Legal Affairs and most recently with Jean-Claude Piris formerly Director General of the Legal Service of the Council of the European Union. The interviewers explore how these individuals got into the practice of international law and interviewees reflect on their experiences at the highest levels of government and international organizations. For example Larry Johnson speaks of his experience in crafting the Statutes of the International Criminal Tribunals for the Former Yugoslavia and the Special Tribunal for Lebanon. Apparently, Security Council members were opposed to including international crimes into the Statute of the latter. In his interview, John Bellinger not only reflects on his own experiences as Legal Adviser in George Bush’s State Department but also comments on the failure of the Obama Administration’s to achieve progress in certain areas of international law.
There is another very interesting set of interviews of international law scholars and practitioners on the website of the University of Cambridge’s Squire Law Library. The Eminent Scholar’s archive includes interviews with distinguished international lawyers such as Prof. Sir Eli Lauterpacht, Prof. Sir Derek Bowett, Judge Stephen Schwebel and Prof. Martti Koskenniemi all of whom have a Cambridge connection, have had distinguished academic careers as well as very significant practical experience of international law. The Cambridge interviews are longer than the Harvard ones but no less interesting. Apart from the interview of Martti Koskenniemi (which I particularly recommend), the Cambridge interviews are largely autobiographical and provide very interesting recollections of the careers of these individuals. They not only include transcripts but also audio files.
Editor’s Note: The authors have recently launched a blog focussing primarily on issues of international criminal justice from an African perspective. See http://warandlaw.blogspot.com
According to media reports , the Kenyan government is redoubling its misguided efforts to persuade the UN Security Council to suspend the ICC Prosecutor’s investigation into the 2008 post-electoral violence. As we have noted before, the request is fundamentally flawed. Not only does it misinterpret both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council (a highly unlikely prospect) will be temporary – article 16 requires the annual renewal of any deferral – whereas the proper exercise of complementarity would offer a permanent solution to Kenya’s concerns (on the assumption that it is truly willing and able to prosecute the offenders domestically).
Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request. Read the rest of this entry…