Home 2010 April

German Federal Prosecutor Terminates Investigation Against German Soldiers With Respect to NATO Air Strike in Afghanistan

Published on April 29, 2010        Author: 

Constantin von der Groeben is a Ph.D. candidate at the University of Cologne, Germany and a LL.M. candidate at NYU School of Law. His Ph.D. deals with the applicability of the Laws of Armed Conflict to the War on Terrorism. He is a fellow of the Studienstiftung des deutschen Volkes (German National Academic Foundation).

Last week, on 20 April 2010, the German Federal Prosecutor closed the case against German soldiers, Colonel Klein and his First Sergeant Wilhelm, who were responsible for the NATO air strike near Kunduz last September.

Klein had requested the air strike against two fuel trucks which were stuck on a sandbank near the German camp in Kunduz. Up to 142 people were killed in the attack, and as was later revealed many civilians were among the dead. This inflamed the already heated debate over the role of the German Bundeswehr in Afghanistan, and the German participation in the unpopular NATO mission there. Eventually the German Defense Minister Karl Theodor zu Guttenberg called the air strike disproportionate.

Apart from some significant political repercussions, the Kunduz air strike eventually raised the question of criminal responsibility of German soldiers in Afghanistan, and the Federal Prosecutor opened an investigation against Klein and Wilhelm. It was the first time ever that soldiers of the Bundeswehr were investigated for war crime charges. Now, finally, the Prosecutor has decided to terminate the investigations on the grounds that neither Klein nor Wilhelm acted in violation of either international or ordinary criminal law.

The Decision in a Nutshell

Let me briefly summarize the major points in his decision.

First, the Federal Prosecutor characterized the situation in Afghanistan as a non-international armed conflict. Accordingly International Criminal Law was applicable in this case. In Germany, International Criminal Law has been implemented in the domestic legal order through the Völkerstrafgesetzbuch (VStGB – Code of Crimes against International Law). The relevant provision of the VStGB, which could have subjected Klein and Wilhelm to criminal liability, is § 11(1)(3) VStGB which regulates the war crime of deliberately causing disproportionate harm to civilians. This Provision in the German code is analogous to Art 8(2)(b)(iv) of the Statue of the International Criminal Court.

Second, applying the VStGB, the Federal Prosecutor found there was no violation of § 11(1)(3) because he concluded that neither Klein nor Wilhelm knew about the civilians’ presence near the gas tanker trucks when they ordered the attack, but rather assumed that they were only attacking Taliban. According to the Prosecutor, the German soldiers’ assumption was legitimate, because they had exhausted all possible means to investigate the situation and to assure themselves there were no civilians near the trucks. The fact that their assumption later turned out to be wrong did not make a difference: according to the Prosecutor, the decisive factor was the ex-ante assessment of the situation. Read the rest of this entry…


Yet More on Arresting the Pope

Published on April 25, 2010        Author: 

In more news on the prosecute the Pope front (see Dapo’s earlier post), Christopher Hitchens, that glorious contrarian and one of the originators of the whole idea, has an article in Newsweek in which he elaborates on the legal strategy that, shall we say, the anti-Pope movement will adopt in advance of the Pope’s planned visit to the UK (h/t Julian Ku at Opinio Juris).

Let me say at the outset that, to my mind, it is clear that the Catholic Church has been indelibly tarnished by the priestly rape of children in many countries, and the systematic attempts to cover-up the abuse by the hierarchy. A credible case has also been made that the current Pope has himself shamefully participated in the cover-up. In short, I have no love lost for the Catholic Church.

Likewise, on a lighter note, I have always enjoyed the writings of Christopher Hitchens, who is often enlightening on many an issue, and never fails to entertain. His skills as a polemicist are beyond question, as numerous clips on Youtube of him demolishing worthy and unworthy opponents can attest. And let’s not forget his famous critique of the purported saintliness of Mother Theresa, which I thoroughly recommend.

Hitchens, in short, is never boring. But with this particular piece, which touches on several questions of international law, I must confess that he truly comes off as quite the know-it-all dilettante. The piece is full of such glaring holes and inaccuracies that one must really question the wisdom of publishing it. Now, I don’t of course expect people who are not (international) lawyers to know anything about international law – but then they at least should exercise more caution in writing about legal issues. So, let’s start off with Hitchens’ argument, given with the benefit of legal advice from Geoffrey Robertson QC:

Read the rest of this entry…


The Position of British Parties on International Law Issues

Published on April 22, 2010        Author: 

As readers will know the UK will hold a general election on the 6th of May. This evening, as a part of a unprecedented three part series of debates, the leaders of the three main UK parties (Labour, Conservatives and Liberal Democrats) will hold a debate on foreign affairs. I thought it would be useful to highlight, brieftly, the position of those three parties on some issues of international law. The BBC website has a useful summary of the position of these parties on Europe and Foreign Affairs, which you can find here. However, some of the positions attributed to the parties by the BBC do not appear in their manifesto and don’ t seem to be on the parties website either. Unlike the position in the United States in recent years, and with the exception of their position on relations with the European Union, there is no radical difference between the parties on questions of foreign affairs. I don’t intend to say much on Europe, but it is worth pointing out, in brief, that the Conservatives hold the most sceptical position, including, for example, a commitment never to join the single european currency – the Euro; and amending UK law to ensure that any future transfers of powers to the EU must be approved by referendum. The Liberal Democrats , by contrast hold the most Euro friendly position (both with respect to the single currency and Europe more generally) with Labour being somewhere in the middle. On another matter related to Europe, the Conservatives have promised to replace the Human Rights Act (which incorporates the European Convention of Human Rights into UK law) with a UK Bill of Rights. I will leave it to others more knowledgeable about that issue to comment on it.

On general international law issues there is actually broad agreement among the parties on a range of issues. Let me start by pointing out the position of the parties on a number of international treaties – both exisiting treaties and those possible future treaties that the parties commit themselves to support. Labour and the Conservatives commit themselves in their manifesto to reform of the UN Security Council (which presumably means amendment of the UN Charter). Read the rest of this entry…


ECHR Rights at Sea: Medvedyev and others v. France

Published on April 19, 2010        Author: 

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. His book Shipping Interdiction and the Law of the Sea was published by Cambridge University Press in 2009. His previous EJIL Talk! posts can be found by clicking on his name in the tab on the right.

The application of the European Convention on Human Rights (ECHR) to law-enforcement operations at sea raises a number of issues concerning the scope of the ECHR’s extra-territorial application and how ECHR rights are to be interpreted and applied extra-territorially. The limited case law to date has concerned maritime migrant and narcotics smuggling, but has significant implications for counter-piracy operation in the Gulf of Aden, an issue I have explored in a recent article in the Int. & Comp. Law Quarterly (see here).

We now have a European Court of Human Rights (ECtHR) Grand Chamber authority on point, Medvedyev v France (Application no. 3394/03), which illuminates some of these issues. In Medvedyev French authorities interdicted a Cambodian vessel (inaptly named the Winner) suspected of drug smuggling on the basis of Cambodian consent; those aboard were confined aboard during the 13 day voyage into a French port. The suspects were later convicted in France of drug-smuggling offences and brought proceedings before the ECtHR challenging the legality of their detention at sea and the delay involved in bringing them before a court under articles 5(1) and (3), ECHR. An earlier ECtHR case, Rigopoulos, similarly involved a Spanish high-seas interdiction of drug smugglers and a 16-day voyage to port. In both cases the Court held that such delays, where materially impossible to avoid, did not violate ECHR article 5(3). In Medvedyev, however, a violation of article 5(1) was found. France appealed to the Grand Chamber, and the decision was handed down on 29 March 2010. The Grand Chamber held, unanimously, that the applicants were within the jurisdiction of France; upheld, by 10 votes to seven, the decision that there had been a violation of article 5(1); and denied (by nine votes to eight) the claim that there had been a violation of article 5(3). The focus here will be on the jurisdictional and article 5(1) issues.

Extra-territorial application of the ECHR

The Grand Chamber shed little new light on the ECHR’s extra-territorial application (paras 63-66). It reiterated the Banković proposition that the ECHR’s extra-territorial application based on State jurisdiction is exceptional. It did not cite any State agent authority and control cases, but did note that exceptionally “the acts of the Contracting States performed or producing effects, outside their territories can constitute an exercise of jurisdiction”. It then resorted to the rather tired line that “clearly defined and recognised” cases of extra-territorial jurisdiction at international law included consular activities abroad and jurisdiction over flag vessels. Without more it concluded that French special forces boarding the Winner constituted an exercise of jurisdiction engaging the ECHR. It is hard to fault the result, but the lack of intermediate logic is odd given the judgment’s stress elsewhere on the ordinary rule of exclusive flag State jurisdiction. What in the act of placing forces aboard a foreign vessel (with flag State consent) transforms that vessel into a space analogous to an embassy or those forces into officials similar to consular agents? The desire to avoid the issue seems creakingly obvious. Nonetheless, it now seems firmly established that exercising coercive law-enforcement jurisdiction over a foreign vessel on the high seas will bring it within ECHR jurisdiction. Read the rest of this entry…


ICC Pre-Trial Chamber Gives Ocampo the Green Light in Kenya

Published on April 15, 2010        Author: 

In an historic decision, a majority of the Pre-Trial Chamber of the International Criminal Court has given the Prosecutor the benefit of the doubt and has authorised him to conduct official investigations into crimes against humanity believed to have been committed in Kenya.  Kenyan hopes for an end to impunity now rest with Ocampo as he seeks to secure the cooperation of the Kenyan Government, to ensure that all witnesses remain protected, and to secure convictions prior to the commencement of the 2012 elections.

In a previous post, I discussed the legal issues likely to be raised by the Prosecutor’s application.  This piece provides an analysis of the most significant aspects of the Pre-Trial Chamber’s lengthy 163-page decision.  In particular, it considers:

(1)    The Pre-Trial Chamber’s definition of “reasonable basis” in Article 15;

(2)    The distinction the Chamber makes made between a “situation” and a “case”;

(3)    The Chamber’s extension of the meaning of “organisational policy” in the definition of crimes against humanity;

(4)    The lack of guidance provided for the test of complementarity in Article 17;

(5)    The criteria provided for assessing “gravity” in Article 17; and

(6)    The Chamber’s interpretation of the “interests of justice” test in Article 53(1)(c).

1. What is a “Reasonable Basis”?

Article 15 of the Rome Statute provides that the Prosecutor’s determination that there is a “reasonable basis” to proceed with an investigation shall be reviewable by the Pre-Trial Chamber.  In the decision, the Pre-Trial Chamber begins by stating that the “reasonable basis” standard of proof is even lower than that provided under Article 58 of the Statute concerning the issuance of arrest warrants.  It then provides further guidance by stating that Article 15 requires the Pre-Trial Chamber to satisfy itself that there is a “sensible or reasonable justification” for the Prosecutor to conduct an investigation.

Whilst concurring with this interpretation of Article 15, the dissenting opinion of Judge Kaul cautions against the Pre-Trial Chamber’s review function becoming summary in nature whereby any information may satisfy this low standard.  Judge Kaul expresses his concern that if the standard were to be set so low that the Court becomes a mere “rubber stamp” for the Prosecutor, it may result in the Court commencing investigations without the Court having jurisdiction. Read the rest of this entry…

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Can the Pope Be Arrested in Connection with the Sexual Abuse Scandal?

Published on April 14, 2010        Author: 

The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted  for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK  and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court  on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here  and an article by Richard Dawkins here).

 However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The  reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity.  Dawkins and Hitchens are not unaware of this problem.  Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State.  His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood.  What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. Read the rest of this entry…


Call for Papers: Untold Stories: Hidden Histories of War Crimes Trials

Published on April 13, 2010        Author: 


A two-day international symposium to uncover and explore some of the less well-known war crimes trials, both international and domestic.

Melbourne Law School

15th and 16th October 2010

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School,

and supported by an Australian Research Council Discovery Project Grant

Organizers: Gerry Simpson, Tim McCormack, Kevin Heller, Jennifer Balint



Deadline for Abstracts: 30th May 2010


As international criminal law matures, there has been a return to history.  Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague.  Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on).  Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.

The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials.  As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10.  There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

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 15th and an informal dinner on the 16th for those who remain in town.


In addition to the organizers, confirmed participants in the symposium include Mark Drumbl and Larry May.  The organizers intend to publish the papers presented at the symposium as an edited book; Oxford University Press has indicated preliminary interest.

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 30th May 2010 to Gerry Simpson c/o Cathy Hutton, Administrator, APCML (c.hutton [at]  Doctoral students are welcome to submit abstracts.

Questions about the symposium can be directed to Kevin Heller (kheller [at]

Filed under: Conference, EJIL Reports
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Negotiations Underway on the Withdrawal of the Croatian Genocide Case before the ICJ

Published on April 13, 2010        Author: 

Since the election of Ivo Josipovic as President of Croatia in January this year, feelers have been sent by both Serbian and Croatian politicians on the possible mutual withdrawal of claims in the Croatian Genocide case pending before the ICJ, and they have intensified. The Belgrade daily Politika has reported (article in Serbian) that Ivo Josipovic and his Serbian counterpart Boris Tadic are meeting today in Mostar in Bosnia and Herzegovina, and that their main topic of discussion is precisely some form of settlement of the case out of court.

The ICJ litigation is a significant burden on any further development of the relations between Serbia and Croatia, and a joint decision to withdraw the case would be laudable – and not just from the standpoint of good neighborly relations. From its initiation, the case itself has served no other purpose but to buttress the nationalistic narrative of both parties regarding the events of the war in Croatia in the 1990s.

The Court’s jurisdiction rests solely on Article IX of the Genocide Convention, and it can examine no other violation of international law except genocide. In the general public of both Croatia and Serbia, however, the case has for years been presented as about being about the war as a whole, and about reparations for any damages caused by the conflict. Thus, much as with the Bosnian Genocide case, Croatian elites have used the case to further their narrative of a just, defensive war against the Serbian aggression, while Serbian elites emphasized Croatian wrongs against Serbs, from World War II up to the massive expulsion of Croatian Serbs in the 1995 Operation Storm. Whatever their merits objectively, both cases have been politically distorted (see here for more background).

Legally speaking, however, the Croatian case is about genocide and genocide alone – and there was no genocide in Croatia in the 1990s, whether against Serbs or against Croats. None of the atrocities committed there by either party have been qualified by the ICTY as genocide, nor has the ICTY ever come close to doing so, but has generally regarded them ‘merely’ as war crimes or crimes against humanity. And as a soon as a particular crime is not qualified as genocide, the ICJ loses subject-matter jurisdiction to examine state responsibility for this act.

In other words, everybody knows what the ICJ’s judgment would be if it were to decide the case the merits – that there has been no genocide on either side, and that any other internationally wrongful acts are outside its jurisdiction. Rationally speaking, therefore, neither Croatia nor Serbia have anything to gain from continuing the litigation. There is a precisely zero chance of any other result, no matter how able their counsel and advocates. Both Croatia and Serbia are, however, still to a large extent steeped in nationalism, and it is the perception of the case by the general public which remains at odds with the objective reality. The distinction between genocide and other international crimes is lost on most regular citizens, many of whom believe that only the word ‘genocide’ can fully encapsulate the wrongs done against them, whether perceived or real.

I am cautiously optimistic that the Croatian and the Serbian presidents will be able to reach some sort of accommodation – though they each also have to persuade their own elites, and be prepared to take the risk that the withdrawal of the case might politically harm them domestically. This is I think particularly the case with Croatia. We shall see what happens soon enough, but an agreement will not be easy to reach, no matter how irrational that might seem from the outside.

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