Home 2010 February

ECtHR Al-Saadoon Judgment Forthcoming on 2 March

Published on February 27, 2010        Author: 

A Chamber of the European Court will deliver its merits judgment in Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08), the case dealing with detention and non-refoulement in Iraq, on Tuesday 2 March (press release here). For our previous coverage, see here and here. For more in-depth analysis of the various issues in Al-Saadoon, such as norm conflict and the UK government’s decision to disregard interim measures ordered by Strasbourg, see here. See also this article by Nehal in the JICJ, and this note in the ICLQ by Sarah Williams and Matthew Cross.

This as hot a case as it gets, and we’ll see what the Chamber does with it. It certainly moved very quickly, since it pronounced on admissibility only in July last year. Whatever the outcome, it is likely that the case will also be referred to the Grand Chamber. Analysis and commentary will follow!


Why the Falklands Dispute Will (Probably) Never Go to Court

Published on February 25, 2010        Author: 

Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition


The UK Supreme Court Quashes Domestic Measures Implementing UN Sanctions

Published on February 23, 2010        Author: 

Last year, I posted on this blog analyses of domestic cases touching upon UN sanctions, in particular with respect to the 1267 sanctions regime (concerning Al Qaeda and Taliban individuals). My comments on the Abdelrazik case (in the Canadian Federal Courts) can be found here (and in expanded version in the Journal of International Criminal Justice here) and on the Hay case (in the English courts) here. The current post, briefly, draws the attention of our readers to the recent decision of the UK Supreme Court in A, K, M, Q & G v HM Treasury and in Hay v HM Treasury. A more extensive consideration of the Supreme Court’s decision will follow—watch this space.

I. Partial Confirmation of Hay

In its decision, HM Treasury v Mohammed Jabar Ahmed and ors (FC); HM Treasury v Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2, the UK Supreme Court largely confirms the High Court’s approach in Hay, and quashes in part the UK’s ‘Al Qaida Order’ (‘AQO’) because it removes the right of access to an effective remedy (see paras 81-82). The AQO is the implementing measure adopted by the UK Executive to give effect to 1267 sanctions. It is subject to the UN Act 1946, which the Court found not to allow the Executive to remove individual rights. The Court also reverses the decision of the Court of Appeal in A, K, M, Q & G, quashing in part the ‘Terrorism Order’, adopted to implement the 1373 regime. The Law Lords clearly distinguished between the two sanctions regimes, one imposing ‘strict’ obligations, and the other allowing for a margin of appreciation (see paras 64, 148, 196 seq and cf the CFI in OMPI at paras 100-102). What is particularly important in the Supreme Court’s decision is that most of the Law Lords fully accept that the domestic implementing measure of the 1267 regime, the AQO, is strictly conditioned by the relevant Security Council Resolutions. The Court clearly finds that subjecting implementation measures to parliamentary scrutiny could lead to the UK breaching its international obligations under the Charter if the implementing measure was defeated in Parliament (paras 47-49). Lord Brown, dissenting, implies that the Court, in quashing the AQO, would force the UK to flagrantly violate the UN Charter (para 204).

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Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum

Published on February 21, 2010        Author: 

Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

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UK Metropolitan Police Investigate MI5 Complicity in Torture

Published on February 20, 2010        Author: 

In a story in The Guardian today, it was reported that the UK’s Metropolitan Police are investigating MI5 for complicity in US torture in relation to the case of Guantanamo detainee Aamer Shaker. Shaker is a permanent resident of the UK and is married to a UK citizen. The report claims that “Investigating officers have applied to the high court for the release of classified documents relating to the case. They are already investigating claims of MI5 complicity in the ill-treatment of British resident Binyam Mohamed while being held by the US.”

If the story is accurate, it represents an interesting development. Over the last 9 years, western intelligence agencies have repeatedly sought to “piggy-back” upon abusive interrogations conducted by the US directly or by one of its “war on terror” allies (Egypt, Jordan, Morocco, even Syria). This piggy-backing has taken various forms, from sending questions to be put to individuals detained by one of these allies (while feigning ignorance of the risk of torture this may pose to the detained person), to attending places of detention in the aftermath of abusive interrogation to question the detainee directly (such as in the case of Omar Khadr and Binyamin Mohammed).

When these visits have been revealed, the intelligence agencies and their governments have often denied that they have violated any aspects of the prohibition on torture, because the detainee is not in their custody (and so not within jurisdiction) and because (they argue) such conduct does meet the requirements of the international or domestic criminal law tests for “complicity.”

So far, it has not been possible to test their claim about whether such conduct could amount to complicity under national or international criminal law, because no serious criminal investigation has been undertaken into the facts (including, importantly, the mental states and state of knowledge of the intelligence agents who conducted these visits and those who ordered them to do so). The inquiries that I am aware of, such as the Arar Inquiry and the Iacobucci Inquiry (both Canadian government inquiries into the conduct of Canadian officials towards Canadian nationals detained and tortured in Syria) have not had a mandate to examine questions of criminal complicity.

A UK domestic prosecution of one of its own intelligence agents for complicity in US torture would be an extraordinary development. It would set an example for many other states which have engaged in similar activities of what a rigorous application of the rule of law might look like. It might also help to ensure that the dreadful tolerance for torture and abusive interrogation at the hands of third parties that many western intelligence agencies have shown in the aftermath of September 11 will not be repeated.

Filed under: EJIL Analysis, Torture
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2010 SIEL/CUP Prize for Essay in International Economic Law

Published on February 19, 2010        Author: 

A prize has been established by the Society of International Economic Law (SIEL) and Cambridge University Press for the best essay submitted on any topic in any field of international economic law. The competition is open to all current undergraduate and graduate students and those who have graduated no earlier than five years before the submission deadline. Members of the SIEL Executive Council may not submit entries. The essay may not have been previously published.

 The prize consists of £200, as well as £300 of Cambridge University Press book vouchers and a three year subscription to the World Trade Review. The winning essay will be submitted to the World Trade Review for publication. The deadline for submission is 30 September 2010. For terms and conditions please see

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Will the ICC’s Pre-Trial Chamber give Ocampo the Benefit of the Doubt in Kenya?

Published on February 18, 2010        Author: 

On 26 November 2009, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested permission from the ICC’s Pre-Trial Chamber II to conduct formal investigations in Kenya, the first time he has ever sought to use his proprio motu powers to initiate an investigation.  In what will be an historic and significant decision, the Pre-Trial Chamber will have the opportunity to provide clarification on a number of contentious issues of international criminal law, including the principle of complementarity, the gravity threshold, the meaning of “interests of justice” and the definition of “crimes against humanity”.  After providing a brief background on the conflict in Kenya and describing the applicable procedure from the Rome Statute, this piece will consider some of the issues that will likely be occupying the minds of the three judges that comprise the Pre-Trial Chamber.

1.  Background and Applicable Procedure

In a previous post, I discussed the events that led to the Prosecutor of the International Criminal Court becoming involved in the Kenyan situation.  In this post, I will consider that legal issues that arise from this involvement.

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court.  Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.”  Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4) authorise the commencement of the investigation where it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court”.  Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)    Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)   Whether the case would be admissible under Article 17; and

(c)    Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

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International Court of Justice to Appoint 6 New Clerks

Published on February 16, 2010        Author: 

The International Court of Justice (ICJ) has announced that it is seeking to appoint 6 new Law Clerks for its judges. The additional clerks will make it possible for each judge to have a full time law clerk. The decision by the General Assembly to allocate extra resources to the Court is welcome as the list of cases before the Court continues to grow (see our earlier posts on recent cases here , here, here and here). Until now, ICJ Judges have had to share clerks and have also had the benefit of year long interns which have been paid for by law schools around the world under the Court’s univerity traineeship programme. My own law school at Oxford recently joined this latter programme and now provides one intern to the Court.

The announcement on the ICJ’s website regarding the new positions says that:

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

The new positions are at P2 level and will be made for a fixed term of 2 years with the possibility of renewal.


Should the ICC Appeals Chamber have a made a decision on Bashir’s Immunity?

Published on February 13, 2010        Author: 

Readers will probably know by now that the ICC Appeals Chamber handed down a decision on February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Sudanese President Bashir with respect to the charge of genocide in Darfur. The Pre-Trial Chamber (PTC) issued an arrest warrant with respect to war crimes and crimes against humanity but held that the Prosecutor had failed to satisfy the standard in Art. 58(1) of the Rome Statute that there were “reasonable grounds” to believe that genocide had been committed.  The PTC held that  “if the existence of a . . . genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” As Marko commented  here on EJIL:Talk! at the time, the decision by the Pre-Trial Chamber on this issue was highly problematic as it did not in fact apply a reasonable grounds to believe test but seemed to require proof beyond reasonable doubt. The Appeals Chamber agrees and held that

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.” (para. 33)

However, the Appeals Chamber did not itself reinstate the genocide charge, but, rather, remanded the matter to the PTC to make a new decision applying the correct standard.

This is all well and good.  However, I wonder why the Appeals Chamber did not decide to take up the elephant in the room regarding the arrest warrant for Bashir – the issue of whether as a serving head of State he is entitled to immnity from arrest and whether the Court is entitled to order his arrest in the first place.  This is an issue that we have discussed at length here on EJIL:Talk! (see here, herehere and here). Its a matter that has exercised African States and led to a call by the Assembly of Heads of States of the African Union for African States not to cooperate with the ICC with respect to the arrest of  Bashir case.  The length of time taken by the Appeals Chamber to issue a decision in this matter suggested that it was considering a weighty issue (see the excellent post by Prof. Bill Schabas on his blog regarding the time taken by the Appeals Chamber). In the end it came up with a rather brief decision saying what was obvious to most knowlegable observers (though to be fair not obvious to the majority of the PTC). So why that lenghty delay?

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JHHW to Stand Trial in France for Criminal Libel – Refusal to Remove a Bookreview which Displeased the Author of the Reviewed Book

Published on February 11, 2010        Author: 

The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at:


Editorial: Book Reviewing and Academic Freedom
Eur J Int Law 2009 20: 967-976; doi:10.1093/ejil/chp114 [Full Text] [PDF]   

EJIL: Debate! Anniversary Edition

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