Home 2011 May (Page 2)

The ICC Prosecutor Requests an Arrest Warrant for Gaddafi: Immunity Issues and Questions about the Start of the Libyan Armed Conflict

Published on May 23, 2011        Author: 

Last Monday, the ICC Prosecutor requested that an International Criminal Court (ICC) Pre-Trial Chamber issue warrants for the arrest of Libyan leader Muammar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al‐Senussi who is head of military intelligence in Libya (and Gaddafi’ brother in law). All three are accused by the Prosecutor of commiting crimes against humanity in Libya. Libya is not a party to the ICC statute  and the situation in Libya was referred to the ICC by the United Nations Security Council in Resolution 1970 .

There are a few interesting thing to note about the request. First of all, there are, of course, similarities with the Bashir arrest warrant. But there are also differences. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. As we have noted on this blog in many previous posts (search for ‘Bashir’ on the right), the fact that a head of State is indicted raises issues of the immunity. The issue is not straight forward but I have argued that the effect of the Security Council referral is that Sudan (now read Libya) is to be treated as bound by the Rome Statute with the effect that Article 27 which removes international law immunities for parties has the same effect for that State. However, I have also criticised the Judges of the ICC for not addressing the immunity question. In the Gaddafi case, at least at this stage, the international law immunity issue does not yet arise, or at least does not arise in the same way. Read the rest of this entry…


Book Discussion: Disobeying the Security Council

Published on May 21, 2011        Author: 

I am happy to announce that this week we will be hosting a discussion on Antonios Tzanakopoulos’ new book with OUP, Disobeying the Security Council: Countermeasures against Wrongful Sanctions. Antonios is lecturer in international law at the University of Glasgow School of Law, and is of course well-known to the readers of this blog as author of many insightful posts. He will start the discussion on Monday by outlining the main arguments of his book. Comments by Erika de Wet, professor of international law at the universities of Pretoria and Amsterdam, Matthew Happold, professor of international law at the University of Luxembourg, and myself will follow over the course of the week, while Antonios will then have an opportunity to respond.

I hope the readers will enjoy the discussion, and they are invited to join in if they wish to do so; comments will of course be open on all posts.


Is IMF Managing Director (DSK) Entitled to Immunity from Prosecution?

Published on May 18, 2011        Author: 

I intended to write a post explaining why International Monetary Fund (IMF) Managing Director, Dominique Strauss-Kahn (DSK), does not have immunity under the applicable treaties dealing with the immunity of the IMF and its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although Article VI, Section 22 of the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies provides that “the executive head of each specialized agency . . . the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”, and even though diplomatic envoys have absolute immunity from criminal jurisdiction of foreign States, the United States is not a party to that treaty. This means that the only relevant treaty is the IMF Articles of Agreement which provides in Article IX, Section 8(i) that IMF Staff, “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” Thus, as Chimene puts, DSK does not have status immunity (or diplomatic immunity) but only official act (or functional) immunity. The latter immunity only covers acts carried out in official capacity and it is difficult to see how the alleged acts could have been carried out in an official capacity. So, the matter as regards the relevant treaties (and the relevant US federal statute –  The International Organization Immunities Act, 1945 22 USC § 288d(b)) appears to be quite straight forward. However, I wonder if that is the end of the matter. Could it be claimed that DSK has diplomatic immunity under customary international law which the US is bound to respect? If he were the head of a foreign State then customary international law would obviously be relevant. But do international organizations and their employees have immunity under customary international law? Are US courts bound to respect such immunity? There is actually a plausible case that the broader immunities in the Convention on Specialised Agencies represent customary international law but I don’t think this is at all certain and suspect that the courts will not accept that view. Nonetheless, I set out the argument below. Read the rest of this entry…


Waiting for Godot: An Analysis of the ICJ Kosovo Advisory Opinion

Published on May 13, 2011        Author: 

Dov Jacobs and Yannick Radi are both postdoctoral researchers at the Amsterdam Center of International Law, University of Amsterdam

[the post has been revised since it first went up]

In an article just published by the Leiden Journal of International Law, entitled Waiting For Godot: An Analysis of the Advisory Opinion on Kosovo, we revisit the advisory opinion issued by the ICJ on 22 July 2010. Two years after the United Nations General Assembly (UNGA) submitted a request in relation to the February 2008 Declaration of independence of Kosovo, the Court issued found that the declaration was not in violation of international law.

This opinion gave rise to a number of commentaries which discussed various aspects of the case. Here on EJIL Talk!, See the extensive preview of the legal issues of the case before the issuance of the opinion by Marko Milanovic and the subsequent analysis by Dapo Akande. Elsewhere, you can refer to the initial analysis by Dov Jacobs over at Spreading the Jam (here and here) and the comprehensive online symposium on The Hague Justice Portal. These commentaries usually isolate a topic related to the opinion (exercise of discretion, self-determination, the application of international law to individuals…) and deconstruct the reasoning of the Court in relation to it.

In our article, we try to explain more generally, the feeling that something is missing in the decision irrespective of the specific flaws in the legal reasoning of the Court, which gives the impression that we are waiting for something that will never come, in essence waiting for Godot.

In a nutshell, we argue that the main problem with the opinion is that the ICJ accepted to respond to a question that did not concern its core ratione personae jurisdiction which is primarily States and the UN. By considering the conduct of non-State entities, the ICJ let itself be dragged in a sort of twilight zone of international law where its conclusions could in fact not make sense.

The article therefore highlights the inconsistencies in the Court’s logic and how they relate to this ratione personae issue, and, ultimately suggests that the ICJ should have looked beyond the conduct of the authors of the declaration, to the responsibility of the UN, as the administrator of the territory, and the responsibility of Kosovo, which we argue, was implicitly recognized by the Court as an autonomous State.

As an illustration of our reasoning, here are two points of interest in our article.

Read the rest of this entry…


Call of Papers: The Eichmann Trial at 50

Published on May 10, 2011        Author: 

Kevin Heller sends on this very interesting call for papers – it’s bound to be an excellent symposium.



A two-day international symposium to discuss one of the most important trials of the 20th Century

Melbourne Law School

14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson


Deadline for Abstracts: 15 June 2011

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem.  The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world.  Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death.  Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

2011 marks the 50th anniversary of the Eichmann trial.  The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other.  The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial.  The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

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 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.”  The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish.  Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

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 15 June 2011 to Kevin Jon Heller, c/o Cathy Hutton, the APCML Administrator (c.hutton {at}  Doctoral students are welcome to submit abstracts.  Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin at kheller {at}

Filed under: Conference, EJIL Reports

When to Kill and When to Capture?

Published on May 6, 2011        Author: 

My previous post on the Osama bin Laden killing and a number of posts at Opinio Juris have attracted a very productive discussion in the comments, which I would recommend to all readers who haven’t seen it already. The key issue that has emerged in this discussion is whether the legality of OBL’s killing depends on whether the US forces could have captured him through non-lethal means rather than killed him; if they could have, then according to some commentators they should have, and if they didn’t the killing was unlawful. Other commentators dispute this argument quite strongly. I offered some tentative thoughts on this in my earlier post, which I’ll develop here further, particularly as more pertinent facts have emerged since.

Let me first outline my view on the applicable law. To simplify matters, let us accept arguendo that I am right that human rights law, namely the ICCPR, applied extraterritorially to the killing of bin Laden, i.e. that the US had the obligation to respect OBL’s rights under the treaty and not deprive him of life arbitrarily, per Art. 6 ICCPR. Let us also accept that I am wrong in saying that IHL was probably inapplicable to his killing, and postulate further not only that IHL applied, but that OBL was a lawful target in some armed conflict of whatever nature (e.g. as a member of an organized group, or as a civilian directly participating in hostilities). Or, if you will, let us just postulate that OBL was killed in Abbottsville, Ohio rather than in Abbottabad, Pakistan. By so doing, we would be dealing with a military strike by a state within its territory in the course of an armed conflict, international or non-international, and would thus be avoiding the issues of self-defense/jus ad bellum and the extraterritorial application of human rights treaties which are not pertinent for the following analysis. The central issue that I will be dealing with will be the relationship between IHL and IHRL.  (My more exhaustive examination of this topic can be found in this article, which I will drawing upon for the purposes of this post).

First, what do the two bodies of law say about intentional deprivations of life? The situation is, in my view, relatively clear under both regimes. Under IHL, the lawfulness of attacking a target depends on its status (which we’ve postulated for the purposes of this post). A combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated. Contrary to some recent suggestions by Nils Melzer, both in the course of his academic work and in the ICRC DPH guidance, IHL does not impose a necessity requirement for attacking a target possessing such a status. In other words, there is under IHL no obligation to first employ non-lethal means against a lawful target, or to capture or detain before trying to kill. Shooting first is perfectly proper. Thus, again postulating some relevant type of status for OBL, under IHL he could have been shot and killed at any time. The fact that he himself was not carrying a weapon is immaterial; he would still have been a lawful target due to his status, just like Ghaddafi is a perfectly lawful target despite not carrying any arms under those flowing robes of his. The only way in which OBL could immunize himself from targeting would be if he clearly announced his intention to surrender or was incapacitated, i.e. rendered hors de combat.

IHRL, on the other hand, does not vary its protections on the basis of an individual’s status, and is of course far more life-protective than IHL. Deliberate use of lethal force is lawful only if absolutely necessary; non-lethal means must be exhausted first. A person may be targeted only if he poses danger to the lives of others; the danger should generally be immediate, but that requirement might perhaps be loosened if the level of danger is higher. But even the most dangerous individual must be captured, rather than killed, so long as it is practically feasible to do so, bearing in mind all of the circumstances. Thus, if it was in fact perfectly possible for the Navy SEALS to kill OBL’s armed cronies and then to capture OBL himself, then OBL should not have been killed; his death would have been an arbitrary deprivation of life within the meaning of Art. 6 ICCPR. This is obviously a highly fact-dependent assessment, and we still don’t know all the facts – and we may never do. In making this assessment, it would be necessary to weigh the risk to the lives of others, including the US soldiers, in attempting to capture OBL alive, as well as the risk that he might escape if non-lethal means were used. In any case, however, OBL couldn’t have been lawfully killed simply because it was (vastly) easier than detaining him and putting him on trial. Similarly, so long as capture was practically feasible, the fact that OBL did not take active steps to surrender (rendering himself hors de combat in terms of IHL) doesn’t mean that he could have been targeted, as he was unarmed and posed no immediate danger to anyone.

Read the rest of this entry…


Was the Killing of Osama bin Laden Lawful?

Published on May 2, 2011        Author: 

Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.

As for the jus ad bellum, it is unclear at this time whether the Pakistani government – parts of whose security apparatus undoubtedly harboured and protected OBL – consented to the use of force by the US on Pakistani soil. The Pakistani government has not yet publicly expressed its views on the matter; all things considered, however, it seems such consent was given. If it was not, then the US would have to argue self-defense in killing OBL, which is of course a complex question. At any rate, it is for Pakistan to raise a jus ad bellum issue, and it does not seem at all politically likely that they will now say, oh yes, we’ve been hiding OBL for years now, but the US had no right to violate our sovereignty.

As for IHL, the jus in bello, it either does not apply at all  as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.

As for IHRL, as readers are aware the US argues that the ICCPR does not apply extraterritorially, e.g. to a targeted killing in Pakistan. That position is in my view incorrect. No matter how despicable, OBL was a human being with human rights, and he was protected by the ICCPR – but his human rights were still not violated. IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.