Home 2010 June (Page 2)

Many Thanks to Joanna Harrington and Darryl Robinson

Published on June 17, 2010        Author: 

I want to express my deep and sincere appreciation to Joanna Harrington and Darry Robinson for their excellent posts from the ICC Review Conference in Kampala. Their posts kept us all informed about developments in Kampala and I felt like I was close to the negotiating process. We know from Julian Ku’s posts at Opinio Juris (see here and here) that others were relying on these posts too.

The pictures in Joanna’s post were a new thing for us on the blog and I think a great addition to the blog!

Filed under: EJIL, EJIL Analysis
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‘Is torture ever justified?’: The European Court of Human Rights decision in Gäfgen v Germany

Published on June 15, 2010        Author: 

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in Gäfgen v Germany. The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions. Read the rest of this entry…


An end to war through a court of law? Perhaps — and in time

Published on June 14, 2010        Author: 

I had hoped to write my final post on the ICC Review Conference sooner, but the British Airways strike resulted in a longer, more roundabout route back to Western Canada. Plus there’s the jet lag. (My apologies Julian Ku).

The key issue with respect to the aggression amendments was always going to be the conditions for the exercise of jurisdiction, albeit that mid-way through the Review Conference, the jurisdiction issue merged with an entry into force discussion, resulting in some confusion among delegates at several points during the negotiations, and a final result that merges the two. Read the rest of this entry…


The President’s Non-paper on the Crime of Aggression (Updated)

Published on June 10, 2010        Author: 

The President of the Assembly of States Parties (PASP) has, as of mid-day on the second to last day of the ICC Review Conference, released his own “non-paper” containing proposals for the crime of aggression amendments at the 2010 Review Conference for the International Criminal Court. The non-paper complements the rev. 2 version of the Conference Room Paper circulated by HRH Prince Zeid, and picks up on ideas and proposals in circulation among delegates. A copy is not available on the ICC’s Review Conference website, but it can be found here. Read the rest of this entry…

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Waiting for a confirmed development in the ICC aggression negotiations

Published on June 10, 2010        Author: 

Day 8 of the Review Conference for the International Criminal Court saw the wrapping up of the work of the Working Group on the Crime of Aggression (WGCA), leaving the aggression negotiations to be conducted through “informal informals”, bilateral discussions, and plenary sessions. The move from working group to plenary will also be accompanied by a change of chair, with the President of the Assembly of States Parties, Ambassador Christian Wenaweser of Liechtenstein, taking over the reins from HRH Prince Zeid, the Chair of the WGCA (and a previous ASP President). Wenaweser is well aware of the positions and divisions among states, having previously chaired the Special Working Group on the Crime of Aggression (SWGCA) within which the aggression proposals were developed for the Review Conference. The question on the minds of many delegates is whether these negotiations will go late into the night on Friday in search of an acceptable text (and thus causing many of us to miss the first match of the much anticipated World Cup in South Africa). Read the rest of this entry…

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Grand Chamber Hearings and Preview of Al-Skeini and Al-Jedda

Published on June 9, 2010        Author: 

Today the Grand Chamber of the European Court of Human Rights held joint hearings in  Al-Skeini and others v. UK (no. 55721/07) and Al-Jedda v. UK (no. 27021/08) – webcast available here, statements of facts available here. It would be no exaggeration to say that these are some of the most important cases to come before the Court in recent years, with possibly wide-ranging implications, on matters ranging from the extraterritorial application of the ECHR and the use of force generally, to occupation and targeted killings, up to the responsibility of international organizations, the relationship between the ECHR regime and the UN Security Council under Article 103 of the Charter. The Court will probably deliver its judgments by the end of the year.

Let me now try to provide a preview of some of the most important issues – particularly threshold issues – that that the two cases raise, and of the possible ways in which the Court might rule.

(Again, apologies for a long post!)

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The Aggression Negotiations at the ICC Review Conference

Published on June 8, 2010        Author: 

We are now in Day 7 of the Review Conference for the International Criminal Court in Kampala, with yesterday evening being a very active period in the negotiations as evidenced by the release this morning of a revised Conference Room Paper on the Crime of Aggression (CRP Rev. 2) and a proposal by Canada to complement that already made by Argentina, Brazil and Switzerland (the ABS proposal). As predicted, much of Days 5 and 6 of the Review Conference were concerned with the setting out of initial positions on the crime of aggression, with only an hour being spent on the discussion of other amendments during Day 5. A slightly revised version of the proposed amendments to article 8 were adopted with ease on Friday, at least at the working group level, subject to the discussion concerning the correct amendment procedure, but division remains as to whether or not to delete article 124 from the Statute, with the coordinators of the Working Group on Other Amendments suggesting that further informal discussions are needed before action is taken. Several questions of treaty law have also attracted interest, with the Japanese delegation reminding delegates that the Review Conference is concerned with the negotiation of amendments to an existing treaty that has its own specific requirements and not the negotiation of policy issues upon a blank canvas. The role of non-states-parties and their potential influence on the future interpretation of these amendments, if adopted, also continues to be of interest. Read the rest of this entry…

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UK’s Iraq Inquiry Invites Submissions on Legal Arguments Used by UK to Justify the War

Published on June 7, 2010        Author: 

As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:

The legal basis for the military intervention in Iraq has been the subject of much comment.  The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser.  Transcripts of such evidence can be found at:  In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.

The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC.  In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.

The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

  • the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
  • the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
  • whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
  • the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
  • the correct approach to the interpretation of Security Council Resolutions;
  • Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Read the rest of this entry…

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More on Drones, Self-Defense, and the Alston Report on Targeted Killings

Published on June 5, 2010        Author: 

First off, some personal news – I am very happy to report that I will be taking up a lectureship at the University of Nottingham School of Law starting this September. It’s a truly excellent school, with some wonderful colleagues, and I do look forward to working there. Now, on to business:

The whole Gaza flotilla affair has occupied so much public attention and legal commentary that there has been little response so far to the publication of Prof. Philip Alston’s report to the Human Rights Council on targeted killings. The report is on any view a valuable contribution to the debate. Over at Opinio Juris, Ken Anderson has published a short ‘not-yet-response’ to the report, and I’d like to add a few thoughts of my own, mostly with regard to the relevance of self-defense.

The independent self-defense justification for targeted killings

As readers are aware, Ken has in the past argued for self-defense as an independent justification for (some) targeted killings. He has done so (and I am in full agreement with him on that point) because the justification offered by the Bush administration at the time, that it is engaged in some amorphous, global armed conflict with Al Qaeda and that it can kill combatants in that conflict, cannot justify the whole of the US targeted killings policy even if stretched to its utmost limit. In other words, even if we accept that there is such a thing as a global non-international armed conflict, the US has killed people, and thinks it needs to kill people, who have no connection whatsoever to that conflict. And there, says Ken, self-defense comes in.

Today, of course, Ken is not alone in so arguing – recently, at the last ASIL meeting, the legal adviser of the State Department, Prof. Harold Koh, has offered the same justification.

In a prior post, I argued that it is doubtful that self-defense can do all that Ken wants it to do. In particular, I argued that if the person being targeted has rights under human rights law, self-defense cannot preclude the wrongfulness of the killing. Rather, the killing would have to be justified within the human rights framework. If, on the other hand, human rights treaties did not apply, then there would be little need for self-defense.

Ken has responded to my critique by saying the following:

Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR.  I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded.  If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko.  Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists.  I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that.  It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated.  But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.

Now I’d like to offer a rejoinder – in part because of a real disagreement between us, and in part to clarify what I think is, or may be, a misunderstanding, either linguistic or semantic, or perhaps legal and conceptual.

(Warning! long post — but hopefully not a boring one!)

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The End of Stocktaking and on to the Main Event

Published on June 3, 2010        Author: 

We continue with our coverage of the Review Conference for the International Criminal Court, (see here, here and here), taking place at a resort on the shores of Lake Victoria, outside Kampala, Uganda (and well-insulated from the hustle and bustle of everyday life). Readers may be interested in comments on the stocktaking exercise that has occupied the formal agenda of the conference for the past two days. Of course, the real action is taking place informally, as the stocktaking exercise has allowed state delegations to engage in behind-the-scenes bilateral consultations and small group discussions to determine possible areas of agreement for the crime of aggression deliberations (which is clearly the main event at this conference) and to get a sense of each others’ bottom lines and end result objectives. As indicated in the conference Journal, state representatives have also been meeting, one after another, with Jordan’s Prince Zeid, the Chair of the Working Group on the Crime of Aggression, who will likely have inquired as to their current and possible positions in advance of Friday’s scheduled discussions. Read the rest of this entry…

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