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Home 2009 May (Page 2)

Some Remarks on the Legal Implications of Foreign Visits by Sudanese President Omar Al Bashir After the ICC Arrest Warrant

Published on May 11, 2009        Author: 

Materneau Chrispin is currently a PhD Candidate in International Law at the University of Lausanne, Switzerland

On March 4, 2009, Pre-Trial Chamber I of the International Criminal Court (ICC) issued an Arrest Warrant against Omar Al Bashir (see here), the current Head of State of Sudan. That warrant was the latest step taken against Al Bashir in the criminal proceedings that have been initiated against him as indirect perpetrator or indirect co-perpetrator of various counts of crimes against humanity and war crimes, which fall under ICC jurisdiction.

Al Bashir’s reaction to the issuance of that arrest warrant has been the rejection of such warrant, open mockery and defiance of the ICC. Moreover, Sudanese authorities have also expelled many foreign NGOs providing assistance to the victims of the conflict in Darfur, especially refugees. The move by the ICC has been criticized by many as being untimely and somewhat unhelpful in view of all the political considerations to be taken into account relative to the ongoing conflict in Darfur. Somehow, that controversy falls within the purview of the more general debate on Justice vs. Peace in international law. Nonetheless, the ICC warrant remains a valid act issued by that international tribunal on the basis of the referral of the Darfur situation to the ICC by the United Nations Security Council.

Such a referral was made by UN Security Council Resolution 1593 (2005). It fully gave the ICC jurisdiction over the crimes committed in Darfur. Indeed Article 13 (b) ICC Statute establishes the referral mechanism as the mean for the ICC to exercise its jurisdiction over crimes in a State that is not a party to the Rome Statute, which is the case of Sudan. That article that deals with exercise of jurisdiction by the Court reads as follows:

 A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;

In the light of that referral, how should we assess, as a matter of international law, the behaviour of the States that have not only criticized the warrant, but welcomed President Al Bashir on their territories after the arrest warrant had been issued against him by the ICC?

Any analysis of the issue should start with the Security Council resolution that introduced the case to the ICC. That resolution was adopted under Chapter VII of the UN Charter. It is therefore binding on all member States of the UN per article 25 of that Charter which provides 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”. On the basis of article 103 of the same Charter, obligations of Member States flowing from resolutions adopted by the Security Council prevail over any other obligations that they would be bound by.

Security Council Resolution 1593 (2005) does not contain strong language that would create a compelling legal obligation for UN member States to cooperate with the ICC in all the steps that it would take in the Darfur situation. However, paragraph 2 of its operative part formulates obligations not only for Sudan, but also for all member States that are urged by the Council to fully cooperate with the Court in the Darfur case. Indeed that paragraph indicates that the Security Council Read the rest of this entry…

 

Humanitarian intervention: neither right, nor responsibility, but necessity?

Published on May 5, 2009        Author: 

I’d like to offer a small “think piece” contribution to a bigger debate, in which I try and tease out a question that has troubled me: do we need a positive right of humanitarian intervention? What would happen if we conceded it was prima facie an unlawful use of force, but was legally (not just morally) justifiable or excusable in a particular case? My tentative conclusion is that the defence of necessity might prima facie be available to justify a use of force in an humanitarian intervention but would face some significant problems on close scrutiny.

We’re all by now familiar with a certain account of the development of the idea of humanitarian intervention. Let me offer a stylised version of this narrative, with its inevitable oversimplifications by way of introduction.

On one account humanitarian intervention begins as an idea supported by academics, is then invoked (not always consistently) by a small handful of States in concrete cases from the 1990s onwards, is opposed by the 170 member States of the Group of 77 and has now been at least partially supplanted by the “responsibility to protect” (R2P). Paragraph 139 of the World Summit Outcomes Document, however, would appear to reduce R2P to an agreement that the UN is the only legitimate forum for authorising intervention and that the Security Council should act in cases of humanitarian catastrophe. There is very little sign, though, of UN practice in support of this vision of R2P as a collective, institutional responsibility. On this stylised account, what began as an attempt to modify the positive rules on the use of force and non-intervention appears to have been folded back in to the status quo ante. (Albeit that a caveat might have to be entered regarding interventions endorsed or carried out by regional organisations.)

What has always puzzled me about the debate over forceful humanitarian intervention is that proponents and critics have invariably cast it being either a right or a duty. Are there any obstacles to conceptualising it as a justification or excuse for an otherwise illegal use of force? After all, the “right” of self-defence is easily considered such a “circumstance precluding wrongfulness” (i.e. a defence), and is categorised as such in the ILC Articles on State Responsibility.   Read the rest of this entry…

 

US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

Published on May 3, 2009        Author: 

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. Read the rest of this entry…