Home 2013 June

Announcements: Workshop on Imputation in Macrocriminal Conduct ~ Book Series on International Investment Law

Published on June 29, 2013        Author: 

1. On 5th of July the Department for Foreign and International Criminal Law of the Gerog-August-University of Göttingen will hold a workshop on the imputation of macrocriminal conduct (empirical, theoretical and comparative aspects). The workshop will deal with the increasing practical importance of decentralized and supranational prosecutions of international crimes, which make a more principled system of imputation (attribution) of macrocriminal conduct more necessary than ever. While such a system may borrow its main elements and structures from domestic criminal law it must develop into an autonomous sui generis system duly taking  into account the particularities of macrocriminal as compared to ordinary criminal conduct. But what are these “particularities” from an empirical and theoretical perspective? And how do they play out in imputation as generally understood in criminal law theory? And how do they influence fundamental questions of imputation such as problems of causation, the forms of participation and subjective imputation? These are but a few, perhaps the “big” questions of a theory of imputation in international criminal law (ICL) which still needs to be developed. Further information is available at the website of the department:

2. Martinus Nijhoff announces the launch of a new book series on International Investment Law. The Series covers international investment law in a relatively broad sense, including the following areas: interaction between domestic law and international investment law, public and private law approaches to international investment law, standards of treatment, international investment arbitration, responsibility and accountability of multinational companies, regionalism in international investment law, and foreign investment and sustainable development. The series editors are : Eric De Brabandere (Leiden University), Tarcisio Gazzini (VU University Amsterdam), Stephan Schill (Max Planck Institute) and Attila Tanzi (University of Bologna).Proposals may be submitted to Senior Acquisitions Editor Marie Sheldon at Sheldon {at} brill(.)com.


Filed under: Announcements and Events
Comments Off on Announcements: Workshop on Imputation in Macrocriminal Conduct ~ Book Series on International Investment Law

UK House of Lords Debate on Drones and Autonomous Weapons

Published on June 26, 2013        Author: 

There was a debate yesterday in the United Kingdom’s second legislative chamber – the House of Lords – on the UK’s use of drones (see here for debate and here for previous EJIL:Talk! post on UK’s use of drones). Not much was said with respect to drones themselves (i.e. remotely piloted aircraft) which was particularly new or noteworthy. The UK government simply asserted that there is no need for any new codes of conduct and that “[the UK’s] system is operated by highly trained, skilled and qualified RAF pilots in accordance with the principles of international humanitarian law.” [column 726]. What was perhaps more interesting was what was not said. First, although the government was specifically asked whether the UK uses the ICRC’s definition of combatants and civilians, the government did not respond to this question (see my previous post on this issue). Second, there was an interesting exchange with regard to autonomous weapons and the possibility of UK use of such weapons where some important matters where also left unspecified. Read the rest of this entry…

Filed under: EJIL Analysis
Comments Off on UK House of Lords Debate on Drones and Autonomous Weapons

UK Supreme Court Decides Smith (No. 2) v. The Ministry of Defence

Published on June 24, 2013        Author: 

Last week the UK Supreme Court delivered its judgment in Smith (No. 2) v. The Ministy of Defence (judgment; BBC News report). This is a follow-up to the Smith (No. 1) case decided three years ago, with a different set of plaintiffs, but on the same issue – whether and how the European Convention on Human Rights applies extraterritorially to protect British troops abroad, specifically when British troops operate in areas not under UK control. In Smith No. 1, the Supreme Court, basing itself on Bankovic and the House of Lords Al-Skeini judgment, found that UK soldiers were not within UK jurisdiction for Article 1 ECHR purposes when they operated in areas outside UK control. A similar case, Pritchard, is currently pending before the European Court; for more background, see my case law update from last month. These cases are essentially Al-Skeini in reverse, since they concern the human rights of soldiers vis-a-vis their own government, rather than the rights of other persons that these soldiers affect through their own conduct.

The Smith No. 2 case concerned two sets of claims: one dealing with the alleged failure of UK authorities to properly equip their Challenger tanks with targeting equipment that would have allowed them to avoid a friendly fire incident, and the other dealing with various decisions of the UK authorities that allowed British soldiers in Iraq to use Snatch Land Rovers on patrol, these vehicles providing little or no protection from improvised explosive devices. The first set of claims was brought entirely under the common law, and I will not deal with it here; the second was partly based on the Article 2 ECHR substantive positive obligations of the UK to secure the right to life of its soldiers in the field.

In light of the European Court’s Al-Skeini judgment, the Supreme Court unanimously reversed its ruling in Smith No. 1, finding that the applicants were within the UK’s jurisdiction and that accordingly the ECHR applied, and by 4 votes to 3 allowed the claims to proceed to trial. The judgment is remarkable for a number of reasons.

Read the rest of this entry…


Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Published on June 22, 2013        Author: 

A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Read the rest of this entry…


Announcements and Events

Published on June 21, 2013        Author: 

Opportunities at the University of Copenhagen

The Faculty of Law at the University of Copenhagen is seeking applicants for a new professorship and a new fellowship.

Post-doctoral Fellowship: Europe and New Global Challenges (EuroChallenge) — This 3-year postdoctoral fellowship is hosted by the iCourts Centre of Excellence in the Faculty of Law. “EuroChallenge” is a major new interdisciplinary project, financed by the University´s 2016 strategic funding initiative. It addresses key questions about the place of Europe in the context of a rapidly and radically changing global order. The project is a collaborative venture, involving three faculties (Social Science, Law and Humanities). It is organized into three work packages. One postdoctoral fellow will be recruited to each of the work packages. The advertisement is here.

Professorship in International Law with Specific Focus on International Courts — The University of Copenhagen is seeking to hire a Professor in International Law, with a specific focus on international courts. The professor will be affiliated with iCourts – The Danish National Research Foundation’s Centre of Excellence for International Courts, which is a research center at the Faculty of Law. The advertisement is here.

Conference — Beyond Responsibility to Protect: Towards Responsible Use of International Law?

The McCoubrey Centre for International Law at the University of Hull (UK) is hosting a two-day conference on the 4th and 5th July 2013 on the subject of the responsibility to protect (R2P). With 40 papers from academics from around the world, together with a key note speech by Professor André Nollkaemper of the University of Amsterdam, who is also Director of the SHARES Research Project on Shared Responsibility in International Law, the conference seeks to make a significant contribution to the understanding of this important area of international law. Registration to attend the conference is now open. Attendance costs £10, and pre-registration is required. For further information or to register to attend please e-mail mcil {at} The full conference programme is available online here.

Filed under: Announcements and Events
Comments Off on Announcements and Events

A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…


Political Motivation and Piracy: What History Doesn’t Teach Us About Law

Published on June 17, 2013        Author: 

I’ve been meaning to write for some time on the debate caused earlier this year by the ninth circuit of the US Federal Court decision in Institute of Cetacean Research v Sea Shepherd. Somewhat controversially it held that political protesters, if they crossed the line into violent protest, could commit piracy. The point is controversial because piracy is defined under the Geneva Convention on the high seas and the UN Convention on Law of the Sea (UNCLOS) as being an act of violence committed on the high seas by a private vessel against another vessel “for private ends”, a requirement often taken to exclude “political ends”.

The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.

To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. Read the rest of this entry…

Filed under: EJIL Analysis, Piracy

Announcement: Positions at the Graduate Institute of International and Development Studies

Published on June 16, 2013        Author: 

The Graduate Institute of International and Development Studies invites applications for the following positions:

– Professor/Associate Professor in International Law

– Assistant Professor in International Law (with a specialisation in Environmental Law).

For the first position, candidates must have a strong grounding in general international law and a specialisation in international organisations law such as United Nations law. In both positions, the capacity to work with colleagues from other disciplines is an asset. Further information is available here


Filed under: EJIL Analysis
Comments Off on Announcement: Positions at the Graduate Institute of International and Development Studies

Call for Papers: Cassese Initiative Prize

Published on June 15, 2013        Author: 

200px-Antonio_Cassese_(born_1937)_-_Flickr_image_3943365916_by_Margaret_ZimmermanThe Antonio Cassese Initiative is very grateful to have received an una tantum donation from the ‘Stichting Praemium Erasmianum’.

This foundation aims to strengthen the position of the humanities, the social sciences and the arts. Every year the foundation awards the Erasmus Prize, intended for persons or institutions that have made an exceptional contribution to culture in Europe. In 2009, Antonio Cassese received the Erasmus Prize for his significant contribution to the development of a universal system of law and for motivating a great number of student and collaborators in his function as judge, scholar, teacher and critic. Therefore, to continue his legacy, the Initiative has decided to use the donation to motivate students and young professionals to take part in the development of international law by writing a paper on new perspectives in international criminal law.

Oxford University Press has kindly accepted to contribute to the Prize with a donation in books.

For more information about the Prize and the call for papers, please click here.

Filed under: EJIL Reports
Comments Off on Call for Papers: Cassese Initiative Prize

Danish Judge Blasts ICTY President [UPDATED]

Published on June 13, 2013        Author: 

A Danish news website has just published a leaked letter from the Danish judge sitting on the ICTY, Frederik Harhoff, blasting the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to me whether it was originally written in English (PDF) or Danish (PDF) (my guess is Danish due to some of the language used, which doesn’t really work in English) or how exactly it was leaked. Judge Harhoff severely criticizes the ICTY Appeals Chamber for the controversial acquittals in the Gotovina and Perisic cases, claiming that Judge Meron exerted enormous pressure on his colleagues in order to obtain the acquittals, and that he did the same with regard to the Trial Chamber judges in the Stanisic and Simatovic case. Harhoff claims that Meron did so in order to protect the military establishments of powerful states, specifically the US and Israel, from expansive forms of criminal liability previously developed by the ICTY.

Choice quotes from the news story below. Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.

Harhoff is a judge on the International Criminal Tribunal for the former Yugoslavia. His criticism amounts to a severe and dramatic accusation against the tribunal as a whole. He maintains that the American president of the tribunal has exercised ‘persistent’ and ‘intense’ pressure on his fellow judges to allow top-ranking officers to go free.

Harhoff’s five-page letter, the precise contents of which are confidential, was addressed to 56 people, including several lawyers. In the letter,Harhoff scrutinises and criticises a series of judgements acquitting Serbian and Croatian leaders.

“The most recent of these judgements have occasioned a deep professional and moral dilemma for me, one that I have never before experienced. The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason”, Harhoff writes in the letter. He makes it clear that the development “has awoken deep concerns both in myself and other colleagues in the corridors of this tribunal”.

“It would seem”, writes Judge Harhoff, “that the military establishment” in leading states such as Israel and the US “felt that the tribunal was getting too close to top-ranking military commands.”

He continues:

“Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?” Harhoff writes in the letter.

Judge Harhoff states in his letter that the public “will probably never” be told to what extent his suspicion that the American President of the tribunal has influenced the result of the case for political reasons is true:

“But the report of the American president of the tribunal’s persistent pressure on his colleagues in the Gotovina and Perisic cases does more than suggest that he was fairly intent on arriving at an acquittal and especially that he was lucky in being able to persuade the ageing Turkish judge to change his mind at the last minute.”

The “ageing Turkish judge”, Harhoff refers to is the 77-year-old Mehmet Güney, who voted in November to release the two Croatian generals Gotovina and Markac.

Harhoff says that the new precedent “will in future and in the majority of cases allow the top-ranking person to go free. This means that American (and Israeli) commanders in chief can breathe a sigh of relief…”. Harhoff adds “I am left with the distinctly unpleasant impression that the tribunal has shifted course as a result of the pressure from ‘the military establishment’ of certain powerful countries.”

UPDATE: Marlise Simons has an article in the New York Times on the Harhoff letter, in which she also reports on comments by unnamed ICTY senior officials, which to an extent corroborate Harhoff’s allegations:

A spokesman at the court declined to comment on the letter. Other judges and lawyers were willing to speak, provided that their names were not used.

By their accounts, a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the scheduled election for tribunal president this fall. Until now, Judge Meron had been expected to be re-elected.

“I’d say about half the judges are feeling very uncomfortable and prefer to turn to a different candidate,” said a senior court official. The official said he did not believe that American officials had pressured Judge Meron to rule a certain way in any case, “But I believe he wants to cooperate with his government,” the official said. “He’s putting on a lot of pressure and imposing internal deadlines that do not exist.”

Today, as the tribunal winds down it work, pressure over time is among the complaints heard from judges’ chambers. Several senior court officials, while declining to discuss individual cases, said judges had been perturbed by unacceptable pressures from Judge Meron to deliver judgments before they were ready.

After the only session to deliberate the acquittal that Judge Meron had drafted in the case of the two Croatian generals, one official said, the judge abruptly declined a request by two dissenting judges for further debate.

In his letter, Judge Harhoff also said that Judge Michele Picard of France was recently rushed unduly and given only four days to write her dissent against the majority decision to acquit two Serbian police chiefs, Jovica Stanisic and Frank Simatovic.

“She was very taken aback by the acquittal and deeply upset about the fast way it had to be handled,” said an official close to the case.