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Harold Koh on Targeted Killings

Published on March 27, 2010        Author: 

Professor Harold Koh, the Legal Adviser of the US State Department had a keynote speech on Thursday at the ASIL conference in which he for the first time articulated the Obama administration’s legal rationale for its policy of targeted killings, e.g. by drone attacks in Pakistan. As predicted in many quarters, he basically argued that (1) the US is in a state of armed conflict with Al-Qaeda, and that its power to target combatants/belligerents in that conflict (however defined) derives from the law of war; and (2) that the US has the inherent right to self-defense that allows it to target those individuals who engage in attacks against the US.

For reactions to Koh’s speech, see these two posts at IntLawGrrls, here and here, and this post at OJ by Ken Anderson.

Though, like Ken, I think it is admirable that the Legal Adviser has now formally stated the US legal position, that position is in my view still seriously flawed, for one simple reason – it rests on the assumption that human rights law does not apply to the individual being targeted, either because it is displaced by IHL as lex specialis, or because human rights treaties do not apply extraterritorially. Both of these arguments are deeply problematic. As I’ve explained in an earlier post, if human rights law does in fact apply, then the jus ad bellum notion of self-defense in particular is unable to preclude the wrongfulness of any violation of the right to life of the individual in question, just as it would be unable to preclude the wrongfulness of a violation of IHL.

Don’t take me wrong – I am not arguing that targeted killings can never be lawful. Human rights law does permit deprivations of life, so long as they are absolutely necessary. Just as a hostage taker could be shot dead by a SWAT unit, so could a US drone take out Osama bin Laden, if capture was not a feasible option. But human rights law does require a showing of necessity, and I am afraid that the legal justification offered by the Legal Adviser does not grapple with this question. If others are unpersuaded by the claim that human rights treaties don’t apply, then a more meaningful justification will need to be offered to support the lawfulness of targeted killings.


Law’s Labours Lost? Comment on Dino Kritsiotis, Close Encounters of a Sovereign Kind

Published on March 25, 2010        Author: 

Nikolas Stürchler is a Diplomatic Officer at the Swiss Federal Department of Foreign Affairs, Directorate of International Law, and author of “The Threat of Force in International Law” (Cambridge University Press 2007). This text reflects the personal views of the author. It does not in any manner implicate the views of the Swiss Federal Department of Foreign Affairs.

The UN Charter is clear in demanding that all member states of the organization must not rely on threats of force in their international relations. Nonetheless, and even though there never has been a shortage of states issuing military threats in past or present, few have paid more than passing attention to the subject.  The 1996 advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, for example, is agonizingly ambiguous, reflecting a clear uneasiness on the part of the Court to say anything definitive about the thorny issue of nuclear deterrence. And the opinion is, with regard to some important aspects, outright irreconcilable with earlier decisions of the same Court.

This situation has changed recently. Perhaps due to the all too visible role of threats foreshadowing military interventions in Kosovo in 1999 and in Iraq in 2003, there now may be a greater willingness on the part of international institutions and international lawyers to examine the legality of reported threats. In September 2007, an arbitration tribunal constituted under Annex VII to the UN Convention on the Law of the Sea ruled that in a dispute between Suriname and Guyana, the conduct of gunboats from the Suriname Navy against an oil rig and drill ship amounted to a threat of force in violation of the UN Charter. In its report of September 2009, the Independent International Fact-Finding Mission on the Conflict in Georgia took a closer look at threats of force in the run-up to the war between Georgia and Russia in August 2008. The report concluded that both major players, Russia and Georgia, had issued unlawful threats of force prior to the outbreak of hostilities. A series of academic publications, too, have entered the scene, easily doubling the available literature on threats of force prior to 2000.

Against this background, Professor Kritsiotis’ article (EJIL Vol. 20, No. 2, pp. 299-330) can only be welcomed as a most recent addition.  In examining article 2(4), Professor Kritsiotis’ central argument seems to be that there is a dissonance between what the UN Charter demands of states to do (“abstain from military threats!”) and a general, if reluctant, appreciation of threats of force by the international community in certain circumstances (“actually, threats are not always bad”).

Quite naturally, the demand of the UN Charter has been upheld by the International Court of Justice in 1996, with which it explained that – like the use of force – threats of force are unlawful in principle, and justification can only be obtained on an exceptional basis and within the strict confines of UN Charter law.

Conversely, appreciation for the uses of threats is voiced outside the courtroom, often in the context of an unresolved international crisis. Referring to past military threats against Iraq and the difficult attempts in gaining compliance from Saddam Hussein, even UN Secretary-General Kofi Annan may be cited as at one time, in 1998, endorsing the use of military threats and at another time, in 2003, condemning it.

Law and reality, Professor Kritsiotis concludes from this, are out of sync. Where the UN assumes black and white, the real world is all in shades of grey. Hence there is a problem in applying the Charter’s ban on threats to international politics of the day. As a remedy, Professor Kritsiotis seems to propose a case-by-case approach, along the lines of the ICJ’s Corfu Channel judgment of 1949, which holds the promise of a more flexible, less doctrinal way in giving effect to the UN Charter in practical cases.

I agree with much of this analysis, but believe that it needs to be complemented. Two points stand out. First, while the dissonance between law and reality is there, it can be readily explained, and on that basis, is not as dramatic or unique as it may first seem. Second, a dynamic interpretation of the relevant Charter provisions is available to address what dissonance there is.

With regard to the first point, it is important to take a step back and take on a historic perspective. The UN Charter’s underlying assumption is that in any military conflict between States, a useful distinction can be made between aggressor and victim. It is the aggressor state that threatens and uses force against the victim state, which, never having provoked the act of aggression, is entitled to self-defensive action. This aggressor-victim template was conceived with arms build-up and Blitzkrieg experiences of World War II in mind, and as such fit hand-to-glove with the realities of 1945.

What actually creates today’s dissonance between the UN Charter’s regime of force and contemporary military conflicts is that in most cases since 1945, reality has been a different one. It is far more frequent for states to be embroiled in protracted conflicts, where it is hard to blame exclusively one side for the commencement of hostilities. Accordingly, it is difficult to apply the UN Charter’s aggressor-victim template, be it for the threat of force or for the use of force. For threats of force, it may be added, the problem is more acute because parties to a conflict regularly threaten each other simultaneously. There is often little point in saying that state A threatened state B first, and thus the question of who was acting in self-defence is practically unanswerable. This general dissonance is often the primary underlying cause for difficulties in spelling out UN law to military conflicts of today.

But Professor Kritsiotis rather relies on another, more special case. This is the situation where it can be argued that military threats are arguably employed in the service of a common good, say, to manage an international crisis, to address a humanitarian catastrophe or even to avert a war. These are the cases of “benign threats” implicitly referred to by former UN Secretary-General Kofi Annan in 1998.

Here, what explains much of the difficulty in applying the UN Charter in a strict manner is a moral dilemma. In a situation where military pressure is deemed essential to bring a notorious norm breaker to compliance with demands of the UN Security Council, states are reluctant to condemn a threat of force issued, even if it is not authorized, whenever it holds the promise of securing compliance. The dilemma is that bystander states, if they condemned the use of military threats, at the same time would end up helping the target state, which is often undesirable because non-compliance in all likelihood would trigger military intervention. Hence the ambivalence towards threats of force in such situations. Here, too, the dissonance is not strictly unique to military threats. The debate on the lawfulness of the so-called “humanitarian intervention”, for example, evokes similar arguments with regard to the use of force.

The question then is whether international law can provide meaningful answers to what are in essence changed circumstances – the unforeseen change in the way conflicts are borne out, and the unforeseen difficulties of the UN Security Council to decide on collective action against notorious norm breakers.

The answer is Yes. Simply, what constitutes a threat of force according to the UN Charter is a matter of treaty interpretation. There is no reason why, contrary to what may be concluded from Professor Kritsiotis’ article, an attempt at interpretation must be unsuccessful. In fact, an enquiry reveals that while there is little case law, state practice is rather rich on examples where the international community has reacted in response to threats of force and that, on that basis, what amounts to a military threat and under what conditions it may lawful be put to use is not at all that elusive.

Quite to the contrary. States take a comprehensive view of article 2(4) of the UN Charter, considering any reliance on military force to influence the outcome of an international dispute as essentially incompatible with the UN Charter. Threats of force among protracted conflict parties are condemned with particular consistency, while there is a certain reluctant acknowledgement that threats may be legitimate in the context of a genuine effort at crisis management (the case of “benign threats”).

So in sum, we should not worry too much about the timeliness of the UN Charter’s demands. They are, if read in the light of post-Charter practice, quite adequate. A future judgment on a new case is not doomed to end up being either unjust or anachronistic. UN law’s labours, so to speak, are not all that lost.

Filed under: EJIL Analysis, Use of Force
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Close Encounters of A Sovereign Kind

Published on March 25, 2010        Author: 

Dino Kritsiotis is Reader in Public International Law at the University of Nottingham in the United Kingdom. He specializes in international law on the use of force and armed conflict, democracy, the United Nations, as well as the history and theory of international law.

I am delighted to accept this invitation of Dapo Akande and Nehal Bhuta of to open up for further discussion some of the issues raised by my article, “Close Encounters of A Sovereign Kind” (EJIL, Vol. 20, pp. 299–330 (2009)), and I am particularly looking forward to exchanges with my interlocutor Dr. Nikolas Stürchler, of the Directorate of International Law in the Swiss Federal Department of Foreign Affairs, whose important and fascinating contribution to this subject appears as The Threat of Force in International Law (2007), published by Cambridge University Press. That work very much repays fine study, and I particularly appreciated much of its methodological emphasis and preoccupations: this, as readers will know, is where a good deal of my own scholarship and sympathies lie. For this forum, then, it would be useful for me to sketch some general points and themes emanating from the article, in order to generate (and to focus) the course of our deliberations over coming days.

1.     Perhaps something should be said in the first instance of the choice of topic; it will be recalled that other articles in the second symposium issue on the use of force for the 20th anniversary volume covered the rise of international criminal law (Kenneth Anderson (American University)), the use of force by terrorists (Christian Tams (Glasgow)) and actions against piratical activities off the coast of Somalia (Tullio Treves (International Tribunal of the Law of the Sea)). All of these are obvious staples if we are thinking of contemporary challenges to, or developments of, the normative arrangements for force and security that succeeded the Second World War—and, I would argue, it is precisely where we would want to place treatment of the topic of “threats” of force; as I tried to indicate in the introduction to the article, there is a tendency not to credit the legal fact of threats of force as often we do the legal fact of the use of force, but once we start doing so, we tend to break up the world of political realities into much more discrete and interesting components (arguably as the 1945 United Nations Charter envisaged us to do).

2.     This tendency interests me—why is it there? what could possibly explain it? what ought to be the rival tendency or tendencies?—and it encourages the observer to start taking facts (at the very least, all of the known or presented facts) more seriously: enhancements of a British naval presence around the Falkland Islands have recently been reported in certain sections of the British press (though the UK Ministry of Defence has argued that this presence is not new); in November 2009, North Korea threatened to take “merciless military measures” along a disputed maritime border with South Korea; and the recent hearings of the Chilcot Inquiry on Iraq in the United Kingdom have left us in no doubt that “threats” (including threats of force!) played an integral part in the relationship of the United Kingdom and the United States with Iraq prior to the Operation Iraqi Freedom of March 2003. (I try and retrace some of these facts in the third section of my article, “The Virtue of Threats of Force: Iraq and the Perfect Peacekeepers”, at pp. 308–316).* One has the feeling that public international lawyers are not alone in failing to make these depictions: consider the innovative historical recounting of the years preceding the Second World War in Nicholas Baker’s Human Smoke: The Beginning of World War II, the End of Civilizations (which I mention in my article at p. 329), which sets its sights on the facts from the point of view of threats of war and force (broadly conceived). It makes for compelling reading, and the reader feels as if something new has emerged—but the materials has always been there for us to discern and to interpret!

3.     In some measure this is all due to the consciousness with which we approach history and historical material—but it is also to do with our own legal consciousness: for a good while, perhaps convenient to suit the practices of Cold War politics, the prohibition of the threat of force seemed to be eclipsed by other considerations—consider the turn of the literature in the first generation of the United Nations—but it always remained an integral part of the text of Article 2 (4) of the United Nations Charter. (This point, of course, matters, as it goes to the precise scope of the provision, of what is forbidden as a matter of Charter law and what is not, which is why I write in the article of “two prohibitions standing together” (p. 304); it matters, too, from the perspective of the kind of empirical evidence needed to adduce each of these propositions as customary law (see p. 328) and, of course, jus cogens). I think it is worthwhile pursuing this path, because it more appropriately maps out the full expanse of this Charter provision, and it makes quite clear that we really have one more rule to contend with than just the prohibition of the use of force!

4.     These remarks go to the point of the formal propositions of law contained in Article 2 (4) of the Charter. In terms of conceptual analysis, however, the jurisprudence of the International Court of Justice has sided with the notion of “idiomatic unity” (pace Stürchler) where, as I say at p. 304, “what goes for one manifestation of force must go for the other” (manifestation was a very helpful word here to use here, as it covers both the “threat” and the “use” of force, precisely the point of the Court in its Nuclear Weapons advisory opinion of July 1996). Building upon this jurisprudence, I came up with the concept of the application of force as a good and convenient way of making reference to the law for both the “threat” and the “use” of force: it allows us to capture the Court’s sense of parity of treatment, and presents us with new—but unified—conceptual language. However, while there is considerable sense and convenience in us adopting this position, one should avoid uncritical embraces: in the article, I detail the difficulties in its application to Operation Desert Fox in December 1998 (pp. 309–310), but one could have equally used the “threat” narrative that predated the use of force in the form of Operation Iraqi Freedom (and which I mention at p. 302): is Security Council Resolution 1441 (2002) to be regarded as a threat of force? If so, could we regard it as a lawful threat of force by virtue of the fact that it was issued by the Security Council? And how/why should our position change if we go on to regard Operation Iraqi Freedom (the use of force to which the “threat” of Security Council Resolution 1441 relates) as an unlawful use of force?

5.     Perhaps this degree of formal mechanics is not the best way of approaching the cut and thrust of political life; perhaps it is testament to the problematique of equating “threats” of force with “uses” of force, and a fair dose of the article is given over to calibrating how broadly it is that we might perceive “threats of force” as a matter of public international law and how this might affect our overall analysis: I attempt to utilize the no-fly zone policy of Operation Provide Comfort (1991) to this effect (at pp. 314–316) and in light of the “contextual analysis” promoted by the Court in July 1996 (p. 306), but, as I try to show, matters can become even more intricate when threatening language is used on a recurring or regular basis—or a relationship evolves within an entire culture of threat and counter-threat—as we see with the focus on Iran: this is “the case of the extended hand and the unclenched fist” (pp. 316–322), as President Barack Obama put it in his inaugural address of January 20, 2009. Does the Charter prohibition allow scope for rhetoric—for heightened rhetoric—and is there scope for incorporating “implied threats” in our analysis (as mentioned by Schachter at p. 306)? Some thought is given (at p. 308) to the mechanism which the Court adopted for uses of force in the Nicaragua Case (1986), where it distinguished between “grave” and “less grave” uses of force: would this help us in making sense of and deciphering “threats” of force for the purposes of legal analysis?

Yet, there are several places in the article where I consider the legal position: I dissect the practice of States piece for piece, away from treatments that tend to monumentalize “the hour, the minute, the second of [the] consummation” of force as it were (at p. 301). This might be regarded as a rather precious way of doing things, but I think it vividly exposes how complicated it is for public international lawyers to enter the fray with their analysis: at what point or points are they meant to place their normative marker/s? Indeed, this is how I spend the penultimate section of the article, hypothesizing the relevance of the prohibition on threats of force to the facts of the Corfu Channel Case (1949), at least as presented to the International Court of Justice. There is something rather comforting about taking on historical material that has a clean break with the past; note how the case study of Iraq in 2003—or in 1998—owes much of its existence to Security Council Resolution 678 of November 1990, itself resting on a threat of force (p. 302). Even so, the complexities of the law’s application are no less forbidding than the other case studies offered for consideration in these pages, especially if certain facts begin to speak for themselves. But, in time, a greater historical and legal consciousness might move us in better and more informed directions, offering us greater clarity on this proposition of law and what it means or is meant to mean.

* And, still, this is not a complete account: an excellent portrait for the New Yorkerof U.N. Secretary-General Kofi A. Annan, contains the following passage:

At the end of October, 1998, Baghdad ordered the inspectors to stop all activities. Before long, Washington told the inspectors to pack up and leave in a hurry. A few days later, a fleet of American and British heavy bombers were in the air, less than an hour from their Iraqi targets, when Annan—who had been trying once again to get the Iraqis to reverse their defiant position—received a letter from Saddam agreeing to let the inspections resume. At very nearly the last minute, the White House called the planes back, and for a few weeks the inspectors did resume their dance with the Iraqis, which in early December once again ground to a halt. On the sixteenth of that month, the bombing began.
Philip Gourevitch “The Optimist”, New Yorker, March 3, 2003 (

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EJIL Introduces Online Manuscript Submission System

Published on March 18, 2010        Author: 

The European Journal of International Law has introduced a new online submission system to cope with the  the large number of submissions that the journal receives. Since we expect that a manuscript submitted to EJIL is not submitted elsewhere, we have an obligation to handle the review process as expeditiously as possible. After much soul-searching, research and experiment, the Journal has decided to automate the mechanics of  manuscript processing. Thus, a new era begins for EJIL with the introduction of its ScholarOne Manuscript Management system. All submissions to our Journal will now be made online using this efficient and streamlined system. Authors, please read the instructions carefully (see here). The online submission page can be found here.

Authors, and readers, should rest assured that behind this new electronic front, our editorial staff will continue to provide the personal and individualized attention to journal production for which EJIL is well known and respected.

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Ronen and Pellet on the ICC and Gaza

Published on March 11, 2010        Author: 

I’d like to commend to our readers’ attention an excellent article by Yael Ronen in the most recent issue of the JICJ on the declaration lodged by Palestine accepting the jurisdiction of the ICC with respect to Gaza, raising the issue whether Palestine qualifies as a state in the sense of the Article 12(3) of the Rome Statute – final version here, SSRN draft here. Here’s an abstract:

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. It argues that there is no justification for such a purposive interpretation, as the ICC Statute already contains an adequate mechanism to deal with exceptional situations such as that of the Gaza Strip. Finally, the article examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition. It argues that taking on the Palestine case would open up a Pandora’s Box and risk turning the ICC into a political playing field for aspirant entities in search of international status.

For what it’s worth, I am personally in broad agreement with Yael’s argument, even if I don’t think that it is in principle objectionable for the ICC or for its prosecutor to address issues of statehood purely as preliminary questions. For a different take than Yael’s, Alain Pellet has prepared a legal opinion arguing that the term ‘state’ in Article 12(3) should be interpreted purposefully so as to allow the Palestinian declaration, even if Palestine is not a state as a matter of general international law – see more here on Bill Schabas’ blog. We’ll see, of course, what the Court ultimately makes of the whole thing.


Conference: „Resources of Conflict – Conflicts over Resources“

Published on March 8, 2010        Author: 

The Editors of the Goettingen Journal of International Law have asked me to post their call for papers for a conference in Goettingen, Germany, in October 2010, at which Judge Bruno Simma will be the keynote speaker. Papers from the conference will be published in the Journal, and a limited number of travel grants is also available. Readers can find more details here.

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Judge Andreas Paulus

Published on March 5, 2010        Author: 

I am happy to report that my friend, noted international law scholar and EJIL: Talk! alum Andreas Paulus has just been elected as Judge of the Federal Constitutional Court of Germany, the Bundesverfassungsgericht. He has most recently served as Professor of International Law at the University of Goettingen, and is a member of the EJIL’s Scientific Advisory Board.

Many congratulations to Andreas! He is sure to make a strong contribution at the Court, where his international law expertise may prove to be invaluable. And we might just get him to blog for us again sometime in the future.

Filed under: EJIL, EJIL Reports

Habib v Commonwealth of Australia: A Twist on Actions Against State Officials for Torture

Published on March 4, 2010        Author: 

 Ben Batros is Appeals Counsel at the International Criminal Court and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb, is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice

Last week (on 25 February), the Australian Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] FCAFC 12).  In some respects, this case is part of several emerging trends relating to immunities and human rights. First, it concerns allegations of torture by foreign State officials, including in Guantanamo Bay (see previous EJIL:Talk! posts here and here)   and  Second, it involves an alleged victim claiming damages against a Government, which resonates with the practice in US courts under the Alien Torts Claims Act and the Torture Victim Protection Act (including the Samantar case being heard by the US Supreme Court this week – see post by Julian Ku over on Opinio Juris). Third, a Government has asked the court to throw out the case, arguing that the courts of one country cannot sit in judgment on the acts of the government of another – echoes of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi Arabia in the UK House of Lords, and the pending Germany v. Italy case at the ICJ.

But even though Mr Habib’s claim lies at the intersection of these trends, it does not follow the “typical” model of a civil claim against the agents directly responsible for the alleged abuses; nor does it pursue a criminal prosecution, where questions of immunity have recently formed a less imposing barrier.  Rather, Mr Habib’s lawyers appear to have considered the experience of similar claims abroad, and to have crafted a case which takes into account both the particular opportunities and obstacles presented by Australia’s legislative regime. As a result, the heart of dispute is the scope of the act of state doctrine, not the applicability of state immunity.

Mr. Habib, an Australian citizen, was detained by Pakistani authorities in early October 2001, and transferred to Egypt in November 2001, to Bagram airbase in Afghanistan in April or May 2002, and then to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  During these periods, Mr Habib alleged a range of mistreatments amounting to torture and inhumane treatment which Australian federal criminal law criminalises with extraterritorial (and in most cases universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision).  The Criminal Code also makes it an offence to aid, abet or counsel the commission of a crime.  Mr Habib’s allegations included that Australian police, intelligence and diplomatic officials had visited him during his detention (which was not disputed), been present during questioning, and may even have provided information used in the interrogation (paras. 17-18, 66-67), and the facts if proved might thus found criminal cases against both the foreign agents who conducted the interrogations and the Australian officials who assisted them.

To circumvent certain procedural requirements for prosecution of these particular crimes, Mr Habib’s lawyers brought a civil action.  However, with the exception of claims under the Alien Torts Claims Act in the US, civil claims for alleged torture at the hands of foreign state officials have previously been held to be barred by state immunity (notably in the UK in Jones v Saudi Arabia), as Mr Habib’s counsel expressly conceded.  So Mr Habib sued the Australian Government for the torts of misfeasance in public office and of intentional infliction of indirect harm by its officials when they aided and abetted his alleged torture. Read the rest of this entry…


Al-Saadoon and Mufdhi Merits Judgment

Published on March 2, 2010        Author: 

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

Read the rest of this entry…


EU denies preferences to products from Israeli settlements

Published on March 2, 2010        Author: 

Dr Lorand Bartels is University Lecturer in Law, University of Cambridge. His publications include Human Rights Conditionality in the EU’s International Agreements (2005, OUP) and Regional Trade Agreements and the WTO (co edited with F. Ortino, 2006, OUP)

The European Court of Justice decided an interesting case last week (Case C-386/08, Brita, 25 February 2010). The Hauptzollamt Hamburg-Hafen (the main customs office of the port of Hamburg) had refused to give preferential treatment under the EC-Israel Association Agreement to products manufactured by an Israeli company in the West Bank.The judgment gives the following facts:

32. The German customs authorities provisionally granted the preferential tariff applied for, but commenced the procedure for subsequent verification. On being questioned by the German customs authorities, the Israeli customs authorities replied that ‘[o]ur verification has proven that the goods in question originate in an area that is under Israeli Customs responsibility. As such, they are originating products pursuant to the [EC-Israel] Association Agreement and are entitled to preferential treatment under that agreement’.

33. By letter of 6 February 2003, the German customs authorities asked the Israeli customs authorities to indicate, by way of supplementary information, whether the goods in question had been manufactured in Israeli-occupied settlements in the West Bank, the Gaza Strip, East Jerusalem or the Golan Heights. That letter remained unanswered.

34. By decision of 25 September 2003, the German Customs authorities therefore refused the preferential treatment that had been granted previously, on the ground that it could not be established conclusively that the imported goods fell within the scope of the EC-Israel Association Agreement. Consequently, a decision was taken to seek post-clearance recovery of customs duties amounting to a total of EUR 19 155.46.

One might have thought that the question would hinge on whether the origin of the products fell within the territorial scope of the EC-Israel Agreement (the ‘territory of the State of Israel’). But the Court took quite a different route. It referred to the EC-PLO Association Agreement, which provides for free trade for products from the ‘territories of the West Bank and the Gaza Strip’ and said:

52. Accordingly, to interpret Article 83 of the EC-Israel Association Agreement as meaning that the Israeli customs authorities enjoy competence in respect of products originating in the West Bank would be tantamount to imposing on the Palestinian customs authorities an obligation to refrain from exercising the competence conferred upon them by virtue of the abovementioned provisions of the EC-PLO Protocol. Such an interpretation, the effect of which would be to create an obligation for a third party without its consent, would thus be contrary to the principle of general international law, ‘pacta tertiis nec nocent nec prosunt’, as consolidated in Article 34 of the Vienna Convention.

Is this correct? Recognizing Israeli competence in relation to products originating in the West Bank does not amount to a denial of Palestinian competence over those products. And even if it did, it does not impose any obligation on the Palestinian authorities not to exercise this competence. They remain free to do so, if they can. So this is not entirely convincing.

The more interesting question is why the Court found it necessary to adopt this odd approach to the case. Why not just determine whether or not the West Bank is part of the ‘territory of the State of Israel’ (as did the A-G)? Could this have anything to do with possible future cases involving annexed territories?

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