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On AG Bot’s Opinion in Kadi (IV)

Published on May 31, 2013        Author: 
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Dr. Asier Garrido Muñoz is Assistant Professor of Public International Law (University of Salamanca). He has recently published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant lo Blanch, Valencia, 2013 here).

After Nada v. Switzerland (ECtHR) and Parliament v. Council, AG Bot has added new grounds to the debate on anti-terror lists with his opinion delivered on 19 March 2013 in the Kadi (IV) case (available here). The case has its origin in an appeal filed by the Commission, the Council and the United Kingdom against the judgment of the General Court (GC) delivered in Kadi (III). Mr Kadi and the preceding judicial decisions need no presentation here. As a consequence, this post will omit all details on Kadi (III) and the background to that decision.

The Commission (C-584/10 P), the Council (C-593/10 P) and the United Kingdom (C-595/10 P) basically supported their application on three main grounds. Firstly, the GC had erred in law in Kadi (III) by refusing to grand judicial immunity to the Regulation including Mr Kadi’s name in the 1267 list. Secondly, the standard of judicial review applied by the GC in order to supervise the inclusion of Mr Kadi in the list had been excessively demanding. Finally, the arguments of the GC concerning the violation of his rights of defense and the right to a fair trial were wrong. It must be noted that Mr Kadi was withdrawn from the UNSC 1267 list on 5 October 2012, that is, some months after the oral phase of the procedure before the ECJ had taken place. This incident provoked some surprise amongst the parties to the case but should not preclude a final ruling on a previous GC judgment.

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Second Annual Junior Faculty Forum for International Law

Published on May 29, 2013        Author: 
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Today and tomorrow, the Annual Junior Faculty Forum for International Law hosts its second event at the University of Nottingham. The Forum is convened by Professors Dino Kritsiotis (Nottingham), Anne Orford (Melbourne) and JHH Weiler (NYU) and its program is here.

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Obama’s Counter-Terrorism Speech: A Turning Point or More of the Same?

Published on May 27, 2013        Author: 
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Gleider I Hernández is Lecturer in Law, University of Durham. The author is grateful to Dr Philippa Webb, Professor Michael Schmitt and Thomas Liefländer for their exchanges of views on this topic.

The 2012 revelation that United States President Barack Obama was immersed in the authorisation and execution of targeted drone strikes by the CIA against suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia was, to put it mildly, important. Shielded from open scrutiny from Congress or the judiciary, and operating on the margins of the public eye, the ‘kill list’ of candidates has resulted in an astonishing number of drone strikes, with the Bureau of Investigative Journalism estimating between 240 and 347 people have been killed in Yemen since 2002, with a further 2541 to 3533 killed by some 278 CIA drone strikes in Pakistan.

As such, three developments in the last fortnight go some way to lifting the veil of secrecy that had heretofore surrounded the US’ weaponised drones program (on which I was asked to comment on the BBC World Service last Friday, linked here):

  1. The 22 May letter from Attorney-General Holder disclosing certain information about the US citizens who have been killed by US counter-terrorism operations outside areas of active hostilities.
  2. President Obama’s 23 May speech at the National Defence University, which has been described as the most important speech on counter-terrorism policy since 2001.
  3. The simultaneous release of a Fact Sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’ (and referred to by Obama as the “Presidential Policy Guidance” (PPG)). This document sets out a number of principles with respect to the United States’ conduct of counterterrorism operations.

Ben Emmerson QC, UN Special Rapporteur on Human Rights and Counterterrorism, has suggested Obama’s speech ‘affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay’ (for the full press release, see here.)

Although there is much truth to Emmerson’s cautious endorsement of the principles contained in Obama’s speech, there are important policy considerations that have been made public and deserve further scrutiny. Moreover, when taken together, Obama’s speech and the Presidential Policy Guidance represent a claim to the normalisation or even a ‘banalisation’ of the practice of targeting terror suspects at large.

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Call for Papers: “Human Rights and the Dark Side of Globalisation: Transnational law enforcement and migration control”

Published on May 25, 2013        Author: 
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Danish Institute for International Studies, 9-10 December 2013.

Globalisation and the promotion of human rights are often assumed to walk hand in hand as increased interdependence favours rights-based governance and global communication means that human rights abuses are reported in real time. Yet, there is a flip side to this relationship. States, and especially more resourceful States, are themselves making increasing use of the possibilities afforded by processes linked to globalisation. Hitherto public exercises of authority like policing, detention and other law enforcement activities are today increasingly exercised extraterritorially, delegated to non-state actors or outsourced to foreign governments. This workshop examines the continued viability of international human rights law in the face of e.g. offshore detention schemes, private military contractors and the exercise of migration control abroad.

Confirmed keynote speakers include: André Nollkaemper, Mark Gibney, Francois Crepeau, Gregor Noll, Elspeth Guild and Marko Milanovic. Details here.

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Call for Papers: Natural Resource Grabbing

Published on May 25, 2013        Author: 
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Call for papers: “Natural resources grabbing: erosion or legitimate exercise of State sovereignty?” 4th and 5th October 2013, University of Cagliari (Sardinia, Italy);  deadline for submissions of abstracts: 15 June 2013. The growing demand for natural resources has triggered a “race” to their exploitation and possession, especially in developing countries. This research project aims at addressing, from an international law perspective, this very complex challenge for the international community. Details here.

 

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The Restoration of a Classic Text: Andrew Clapham’s New Edition of Brierly

Published on May 23, 2013        Author: 
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Professor Guy Goodwin-Gill is Senior Research Fellow, at All Souls College, Oxford and practises as a barrister from Blackstone Chambers, London.

The seventh edition of Brierly’s Law of Nations: An Introduction to the Role of International Law in International RelationsBrierly, (and here on google books) now edited by Professor Andrew Clapham, was published by Oxford University Press last year. It is now fifty years since Sir Humphrey Waldock’s sixth edition of Brierly was published, but it has been well worth the wait. In my view, no one who reads Andrew Clapham’s new edition can fail to embrace the law of nations, to go on to study it in yet greater detail, and to be excited and enthused by the prospects ever and always being thrown up by the quest for order over chaos. What is more, Brierly will still just about fit in your pocket.

I first came to Brierly, in the sixth edition edited by Humphrey Waldock, in 1967. It was among the first readings set by my Oxford college tutor, Ian Brownlie, whose first edition of Principles of International Law had just appeared the year before. Together, these two works must certainly take a lot of the credit for setting me off on the road to international law.

Like many classic texts, Brierly has lasting appeal; it is highly readable, almost conversational, essentially an essay in nine parts, a curriculum of essentials, of bases. But it is certainly not conservative or hidebound by tradition, or old-fashioned, or the product of blinkered vision or boxed-in thinking. Brierly himself saw his book as an ‘introduction’, something to supplement the text books – rather a subversive thought, if you think about it.

For Brierly, perhaps surprisingly, is often radical, if carefully so. We see this in his approach to international law, already in 1928, as also comprising individuals among its subjects, as encompassing a sense of community, drawing on ‘a sense of solidarity across traditional borders’ (Clapham, Preface, xvi).

A great strength of the present edition, additional to its remarkable modernising, is the way in which Andrew Clapham has managed to put yet more Brierly into Brierly. He carefully and astutely draws on Brierly’s other writings to explain, to elaborate, and sometimes even to rescue ideas which Brierly often set out before their time. And how sharp were his perceptions! Consider his views on Vattel’s acceptance of the state of nature as an analogy appropriate to describe relations between States: ‘Thus the doctrine of the equality of states, a misleading deduction from unsound premises, was introduced into the theory of international law’ (36; also 146f). And later, ‘By cutting the frail moorings which bound international law to any sound principle of obligation, [Vattel] did it an injury which has not yet been repaired’ (39). Read the rest of this entry…

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Update on the Extraterritorial Application of Human Rights Treaties

Published on May 21, 2013        Author: 
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I’m happy to announce that my book Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy is now available in paperback (and for cheap… and even on Kindle – OUP seems to be branching out). I’ve decided to keep a sort of running update on new cases and developments here on the blog. Since the book has been published the European Court in particular has decided a number of relevant cases, chief among them of course Al-Skeini (judgment; my EJIL article), but also Catan and others (judgment; my blog post).

In this (longish!) post I’ll discuss two inadmissibility decisions, Djokaba Lambi Longa v. The Netherlands, App. No. 33917/12, 9 October 2012, dealing with the applicability of the ECHR to the ICC detention unit in The Hague, and Chagos Islanders v. UK, App. No. 35622/04, 11 December 2012, dealing with the applicability of the ECHR to the British Indian Ocean Territory, part of which is the Diego Garcia naval base. Neither is about the extraterritorial applicability of the ECHR as such, but both turn on the interpretation of the jurisdiction clause in Article 1 ECHR. I will then very briefly discuss two cases pending before the UK Supreme Court and the European Court on the applicability of the ECHR to British military personnel stationed overseas but outside areas under the UK’s effective control.

In Djokaba, the applicant, a Congolese national charged with several offences in the Congo, was transferred to the custody of the International Criminal Court in The Hague as a witness against Thomas Lubanga. He gave evidence before the ICC, but after doing so lodged an application for asylum with the Dutch authorities and also requested the ICC not to transfer him back to Congolese custody, where he feared reprisals. Thereafter followed a diplomatic ping-pong between the ICC and the Dutch authorities which is too tedious to get into here – suffice it to say that the applicant remained in ICC detention. In Strasbourg he claimed that the Netherlands has violated Article 5 ECHR on various counts because of his continued detention and the lack of review thereof.

But any examination of the merits was subject to the threshold question of Article 1 ECHR jurisdiction. In the applicant’s view, as he was located on Dutch territory he was necessarily within the Dutch jurisdiction. In the view of the Dutch government, however, the applicant was in the custody of the ICC, and hence outside the Dutch Article 1 jurisdiction.

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Prosecution of Former Nazi Camp Guards: About Restoring Society’s Trust in Law and Participation in a Criminal Enterprise

Published on May 20, 2013        Author: 
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The recent debate in Germany about the prosecution of former Nazi concentration camp guards – all about 90 years old – and the detention of one on 6 May near Stuttgart reminds us of the controversy about the trial against John Demjanjuk in the district court (Landgericht) of Munich in 2011. The controversy is by no means limited to Germany but takes place in all countries (for example Cambodia) where old men and sometimes women are held accountable for long passed crimes (for example the crimes of the Khmer Rouge). What these trials have in common is the old age of the accused, who may not survive to the end of their trials. Indeed, Demjanjuk died before the appeal against his conviction was decided. More recently, former Khmer Rouge senior official  Ien Sary died on 14 March 2013, during his trial by the Extraordinary Chambers in the Courts of Cambodia . Typical of these trials are also the enormous difficulties in finding appropriate evidence such a long time after the facts. Moreover, given that camp guards normally just follow orders of mid- or top-level responsible they are only small cogs in the machinery of destruction set up by the criminal system and their individual criminal responsibility is difficult to establish. We will return to this problem at the end of this essay.

On a more fundamental level, one is always confronted with the question of the justification or rationale of such trials in terms of the purposes of punishment. Offender-related rationales, especially re-socialization or rehabilitation, are hardly plausible in the context of system criminality, especially when the perpetrators are facing death anyway. The likelihood of convicted system criminals re-offending in a new system is next to zero. System criminals do not need to be re-socialized through punishment since they have not been deviant in the societies in which they lived in . Indeed, they carried out the atrocities demanded by the former criminal system, for example keep running a concentration camp. If this (their) system is replaced by a new one they usually quickly adapt to this one too and turn into the normal citizens they have always been, except for the period of the criminal system. These citizens are good neighbours who do not come into conflict with the law. Their conflict concerns their conduct in the former criminal system. Thus, they are investigated for past instead of present conduct. In sum, former system criminals neither have to be reintegrated into the new society nor is it necessary that this society must be protected against them, especially if they are harmless old men today.

What about retribution (just deserts) then? Does it justify prosecuting these people? Read the rest of this entry…

 

Call for Papers: Wisconsin International Law Journal Annual Symposium, April 4-5, 2014

Published on May 16, 2013        Author: 
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Internationally acclaimed women scholars and advanced PhD candidates are invited to the second conference on the Creation of International Law, to be hosted by the University of Wisconsin on April 4-5, 2014 as part of its Wisconsin International Law Journal annual symposium. The intention is to continue and expand the network of women scholars and practitioners that was launched in 2009 in Norway to support their engagement in public international law.  The theme of the second conference is: Exploring the International Law Components of Peace. The pursuit of peace remains a global challenge and there is a need for reflection as to how the current international public law institutional and normative structure functions and what are the gaps? Call for papers and more details here.

Filed under: EJIL Reports
 

Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC

Published on May 15, 2013        Author: 
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Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];

Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia – is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie– is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.

Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions  (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here,  and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.

The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.

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Filed under: EJIL Analysis