Home 2011 March (Page 2)

Questioning the Peremptory Status of the Prohibition of the Use of Force

Published on March 17, 2011        Author: 

Dr James A. Green is lecturer in law at the University of Reading School of Law.

The prohibition of the unilateral use of force, as set out most crucially in Article 2(4) of the UN Charter, is often seen as the archetypal example of a jus cogens norm. Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character, as does the International Law Commission and the International Court of Justice.  It is understandable that a plethora of commentators have perceived the prohibition as a peremptory norm: the use of military force usually involves the systematic killing of human beings, often on a vast scale.  An underlying rationale for the entire jus cogens concept is the desire to impose some kind of fundamental standard of common values upon state interaction and to strengthen the effectiveness of international law in certain areas of common concern.  On this basis, the prohibition of the use of force is exactly the sort of norm that should be peremptory. Coupled with the fact that jus cogens and the jus ad bellum share common natural law underpinnings, one might view them as a perfect conceptual fit.

In ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215-257, I challenge this widely held view: is the prohibition of the use of force in fact a jus cogens norm?  The desirability of peremptory norms, and, indeed, their very existence, has been questioned in the literature, but it was not my aim in the Article to debate the existence of jus cogens norms per se.  Without making a value judgment as to the desirability of peremptory norms, the view is taken that there is certainly enough evidence to suggest that states have accepted the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.

Based on this starting point, the Article does not argue that the prohibition is necessarily a norm that has failed to achieve peremptory status.  Rather, the intention is to demonstrate that there are significant difficulties with such a conclusion and that, as a result, the widespread uncritical acceptance of the prohibition as a jus cogens norm is concerning.  The aim is to test the prohibition against the criteria for the establishment of peremptory status—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

By way of background, then, the Article sets out in more detail the legal criteria for identifying a peremptory norm of international law, and goes on to consider the majority view—prevalent in the literature—that the prohibition of the use of force is such a norm.  A number of problems with the conclusion that the prohibition is jus cogens are then set out.  The question of whether the prohibition is suitable, or even capable, of being viewed as a jus cogens norm is examined through various points of focus.

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What Happens to the Gaddafis’ Fortune? Could Frozen Assets be used to Satisfy Claims for Reparation?

Published on March 11, 2011        Author: 

Dr Conor McCarthy is a visiting fellow, from April of this year, at the British Institute of International and Comparative Law. He is author of Reparations and Victim Support in the International Criminal Court, a monograph to be published by Cambridge University Press in early 2012.

The imposition of an assets freeze is now well established in the practice of the Security Council as part of the range of measures at its disposal to maintain or restore international peace and security. It was not surprising therefore that as part of the range of measures taken by the Security Council to address the current situation in Libya, an asset freeze was imposed on various individuals occupying senior positions in the Libyan government and in its security forces as well as on persons closely connected with the ruling regime. In line with previous resolutions in which an asset freeze has been imposed the range of assets frozen by Resolution 1970 (2011) is enormously broad. Paragraph 19 of the resolution requires member states of the United Nations to freeze “all financial assets and economic resources … owned or controlled, directly or indirectly…” by the individuals identified in Annex II of the resolution.

Given the seniority of the individuals in question and the power and influence which they appear to wield within Libya, many states have interpreted the scope of assets “owned or controlled” for the purposes of Resolution 1970 to include a vast swathe of the Libyan state’s assets held abroad. The UK government, for instance, is reported to have frozen around $2bn of assets held in the UK by the Libyan Investment Fund (see here and here). For its part, the United States has frozen around $30bn of assets, including those held by Libya’s sovereign wealth fund and the Central Bank of Libya. Assets owned or controlled by numerous other individuals and entities have also been frozen in the member states of the European Union pursuant to Council Regulation (EU) No 204/2011 adopted on 2 March 2011 (see here and here). Billions more are thought to have been frozen in other jurisdictions throughout the world.

With such an enormous body of wealth frozen in Europe, the United States and elsewhere, what is the position of individuals who have been injured in the violence, past and present, for which the Libyan state or individuals within its senior leadership are alleged to bear responsibility? Is it possible that any of the funds now frozen could be used to satisfy a claim for reparation in respect of such responsibility, assuming it could be established?

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Article 75 AP I and US Opinio Juris

Published on March 9, 2011        Author: 

Two days ago the US President issued a new executive order on the detention policy in Guantanamo (see this post by Bobby Chesney at Lawfare for a summary and analysis). The President also made several important statements; among these was the following:

Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.

Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

Over at Opinio Juris, Ken Anderson rightly points out that this is an expression of, well, opinio juris by the United States that the rule contained in Art. 75 AP I, even though not binding on the US as a matter of treaty obligation, was now binding on it and all other states as a matter of custom. Of course most scholars, the ICRC etc. have claimed that Art. 75 has a customary status, and the same conclusion was reached by a plurality (but not a majority) of four justices of the US Supreme Court in Hamdan. This affirmation by the executive is certainly a welcome development in US detention policy, but of course its practical effects (if any) yet remain to be seen.

Also at Lawfare, John Bellinger, who has long advocated that the US accept Art. 75 as reflective of customary law, has some additional comments which are well worth reading. The one that I found most interesting was the following:

It is also important to note that (contrary to the views of four present or past justices of the Supreme Court) the Administration has not concluded that Article 75 already constitutes “customary international law.” This would have required the Administration to determine that almost all the states in the world accept Article 75 as a legally binding obligation, which would have been difficult to do. Instead, the Administration has announced that it will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual detained in an international armed conflict, and expects all other nations to adhere to these principles as well.” In other words, the Administration is saying (appropriately, in my view) that it will lead by example by attempting to create customary international law through state practice.

There are I think several important points of principle raised by John’s comment, all about the nature of opinio juris, that pithy piece of legalese Latin. First, contrary to what John seems to argue, an official statement by a state that a rule is of a customary nature does not actually require that state to examine the practice of other states and establish its uniformity; its own belief (which may well be mistaken) is enough. Second, the US statement is indeed an example of opinio juris, not state practice – at least not unless practice can be purely verbal in nature, which is a contentious point; the real practice that needs to be established is the actual treatment of prisoners in state custody. This of course brings us to the issue as to what the exact ‘mix’ of opinio juris and actual practice needs to be in order to create a rule of custom.

The most interesting point, however, is that John interprets the statement not as being declaratory of existing custom, i.e. of a rule that was binding on the US even before the statement was made, but as constitutive of a new, future custom, that would bind the US from this point onwards. This is I think a perfectly valid interpretation, but is not the only possible one. Note of course that if Art 75 already was customary in nature, then the US statement would be neither here nor there, as the rule would already have been binding on the United States. If, on the other hand, Art. 75 was not customary at the time of the US statement, then the expression of US opinio juris might take it over the tipping point. The question, therefore, is whether Art. 75 reflected customary law in the morning of 7 March 2011, before the statement was made.

This raises the fundamental issue as to how the existence of rule formed through a heterogeneous, decentralized process like custom can be determined at any given time. Can this even be done? Can an official statement by a government be taken as a declaration of what the law is, or as what it should be, and how do we tell the difference?  I was immediately struck by a parallel between this statement and the famous Truman Proclamation, whereby the United States asserted the existence of a customary rule that recognizes the rights of states over their appurtenant continental shelf.

In that regard, in 1994 James Crawford and Thomas Viles wrote a superb piece called ‘International Law on a Given Day’, originally published in K Ginther & ors, Völkerrecht zwischen normativen Anspruch und politischer Realität. Festschrift für Karl Zemanek zum 65. Geburtstag (Duncker & Humblot, Berlin, 1994) 45-68 and later reprinted in a collection of Crawford’s essays. It is regrettably not available online, but I will now reproduce some of its extraordinarily insightful (and beautifully written) passages from its introduction:

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Keitner on Rights Beyond Borders

Published on March 8, 2011        Author: 

I’d like to draw our readers’ attention to an excellent recent article by Chimene Keitner, ‘Rights Beyond Borders,’ published in the Yale Journal of International Law, and dealing with the extraterritorial application of domestic guarantees of individual rights. It is a timely piece which engages in a comparative examination of relevant US, UK and Canadian case law; there are certainly lessons to be learned here with regard to the extraterritorial application of human rights treaties. A symposium/discussion of the article is available on Opinio Juris.

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Two New Decisions on Subject-Matter Immunity, Torture and Extrajudicial Killings

Published on March 7, 2011        Author: 

 Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)

 2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings.  Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy – previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials.  Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.

Kazemi v. Iran

 At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence.  He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…


In the Dock, in Paris – The Judgment

Published on March 4, 2011        Author: 

UPDATE: The full text of the Judgment is now available below; some minor technical issues were fixed.

UPDATE 2: An unofficial translation of the Judgment into English is now available here.

On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in the Criminal Libel Case brought against me based on a complaint by Dr Karine Calvo-Goller. It would appear that the Court ruled in our favor on all issues.

As will be recalled, the case was brought in my capacity as Editor in Chief of the European Journal of International Law and its associated Book Review website It was brought as a result of my refusal to remove a Review, written by the distinguished German academic Thomas Weigend, critical of a book written by Dr Karin Calvo-Goller. Dr Calvo-Goller claimed the Review was libelous and demanded its suppression. I offered her a right-of-reply which was declined. Since I did not consider the Review libelous its removal in my view would have seriously compromised academic freedom and the intellectual integrity of EJIL and book reviewing generally. For full details see here.

The Trial took place in Paris on January 20th, 2011 – see here.

Represented by Maitre Thierry Marembert and Cécile Labarbe of the Paris Law Firm Kiejman & Marembert, we made two principal arguments in defense: First, that the Court should not exercise jurisdiction — the case being too remote from France; and second, that it should rule that in the circumstances of the case, initiating a criminal complaint amounted to an abuse of process by the Complainant.

In its Judgment, the Court upheld both claims. On the jurisdictional issue, a highly technical part of the Judgment, it seems to have ruled that although available on the internet, the Complainant did not prove to its satisfaction that the Review was actually accessed in France during the period within which a criminal complaint had to be filed. The full Judgment in French and a translation will be posted on the EJIL blog – in the next few days. [UPDATE: The full text of the Judgment in French is now available here.]

In ruling on the issue of abuse of process by the Complainant, the Court was able to address the merits of the case. The following are excerpts from the Judgment in unofficial translation.

“….As regards the choice made by the Complainant to invoke French criminal proceedings, though [Karine Calvo-Goller] holds dual French and Israeli nationality, she resides and works in Israel, the book which is the subject of proceedings was written in English, as was the Book Review; [it was] published on an American website, linked to an American university at which Joseph Weiler works; [the Complainant] explained to the Court that she chose to use the French rather than the American or Israeli systems for financial reasons –the cost of proceedings would have been more expensive for her- as well as for reasons of expediency, being of the view that only French law offered her a chance of success;

… Karine Calvo-Goller thus acknowledges having engaged in what one can call “forum shopping”, that is to say a worldwide search, for the legal system which seems the most favorable to the person initiating legal proceedings, and which places her opponent, as much for legal reasons as for practical reasons — geographical or cultural remoteness — in the least favorable situation….[T]he artificial choice in this case, of the French legal system, coupled with the choice of pursuing a criminal procedure by means of a complaint to an Investigating Judge resulting in both opprobrium and significant costs to the accused, characterizes the abuse of these proceedings;

… Karine Calvo-Goller failed to comprehend [respect] the scope of French Press law stating that the Review which was made the subject of the proceedings could be held to be defamatory…. [I]n effect, the Review of her book does not contain words damaging her honor or her reputation, and only expresses, what is more, in moderate terms, a scientific opinion on [her book] without ever exceeding the limits of free criticism to which all authors of intellectual works expose themselves;

… The bad faith of the Complainant –a lawyer, moreover one familiar with French law given her indication that she pursued her law studies in France- is therefore undeniably established;

….It is therefore with just cause, that Joseph Weiler believes that the [Complainant] has abused her right to bring legal proceedings, on the one hand by initiating an action for defamation in relation to words that do not go beyond the limits of academic criticism, an essential element of academic freedom and freedom of expression and, on the other hand, by artificially bringing proceedings through the French criminal justice system.”

Considering the resulting harm suffered by the accused, he will be justly compensated by judgment against the Complainant requiring her to pay to him the sum of €8,000.” [about US$ 11,000]

I hope this brings this sad saga to an end though it should be noted that the Complainant has a right of appeal.

Be that as it may, I would like to thank my legal team, the Dean and faculty of NYU School of Law for moral and material support, and the many letters of encouragement by friends and strangers from around the world. Naturally, any damages will be donated to a charitable cause. As for the Judgment, I will follow the wisdom of the Sages, “Whoever Adds, Detracts.”


The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law

Published on March 3, 2011        Author: 

Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

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Filed under: EJIL Analysis, Government, Libya