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“Specific Direction” is Unprecedented: Results from Two Empirical Studies

Published on September 4, 2013        Author: 

Dr James G. Stewart is an Assistant Professor at the University of British Columbia Law School. He has degrees in law from Victoria University of Wellington, the Université de Gèneve and Columbia Law School, in New York. He has previously worked for judges of the ICTY Appeals Chamber, the Office of the Prosecutors at the ICTR in Arusha and later at the ICTY in The Hague.

Over the past months, I have written a range of blogs explaining my normative disagreement with the controversial new standard of aiding and abetting announced by the ICTY in the Perišić Appeals Judgment, which purports to add “specific direction” to the actus reus of aiding and abetting.

In this final blog on the issue, I deal with the question of whether “specific direction” has any foundation in customary international law, but a complete list of my criticisms of this standard from a conceptual perspective, together with a short summary of each, is available online here. Instead of revisiting these conceptual criticisms, I here summarize two multi-year empirical studies into (a) all aiding and abetting incidents in the history of international criminal law; and (b) academic scholarship on complicity at national, international and theoretical levels.

I start by setting out the findings of the first study of aiding and abetting incidents in the case law of international criminal courts and tribunals, before I conclude by addressing the academic literature. In both of these areas, I have presented the material very succinctly for ease of digestion and debate. I have also included links to both datasets. As I hope will become quickly apparent, “specific direction” has no basis in customary international law or scholarly thought.

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Foreign State Officials Do Not Enjoy Immunity Ratione Materiae from Extradition Proceedings: The Not So Curious Case of Khurts Bat – A reply to Dr. Roger O’Keefe

Published on September 4, 2013        Author: 

ThiagoThiago Braz Jardim Oliveira is a teaching assistant at the Faculty of Law of the University of Geneva and a PhD candidate at the Graduate Institute of International and Development Studies.

On November 15th of last year, Dr. Roger O’Keefe (Cambridge University) gave a very interesting talk at Oxford University titled “Immunities and Extradition: The Curious Case of Khurts Bat”. I was not there, but benefitted from Oxford University’s excellent podcast system (podcast of talk available here). As Dr. O’Keefe explained, the talk developed views he had already expressed in a case note he had written for the British Yearbook of International Law. The case in question was Khurts Bat v Investigating Judge of the German Federal Court, [2011] EWHC 2029 (Admin). The case involved a request by Germany for the extradition, from the UK, of Mr Khurts Bat, head of the Office of National Security of Mongolia. He was sought on account of crimes he supposedly committed in Germany, particularly the kidnapping, imprisonment and questioning of a Mongolian national. In the extradition proceedings before the English court, Mongolia attempted to prevent the extradition of her official by invoking two types of immunity, both of which failed. First, Mongolia relied on personal/ status immunity or immunity ratione personae on the basis that defendant was said to be a member of a Special Mission sent by Mongolia to the UK and also by virtue of Mr. Bat’s position as “a very senior governmental officer.” Secondly Mongolia relied on subject-matter immunity or immunity ratione materiae, arguing that the acts in respect of which Khurts Bat was accused in Germany were committed on behalf of Mongolia.

It had been asserted before the English court that “[Mr. Khurts Bat was] entitled to immunity from criminal prosecution in Germany ratione materiae” (ibid., para. 63). Dr. O’Keefe considered this argument to be “wholly illogical”. For him, to focus on whether the defendant was immune, as a matter of international law, from the courts of the requesting State (Germany), as opposed to from the jurisdiction of the English courts was plainly wrong. The point was crucial because the court eventually held that, under international law, there was no immunity ratione materiae from the jurisdiction of a State with respect to acts done in that State. Since the acts were done in Germany and the English court considered immunity from German jurisdiction, it was held that Mr Khurts Bat did not benefit from immunity ratione materiae. As I explain below, I think the English court was right to treat the question as one relating to immunity from German jurisdiction and not from English jurisdiction. Read the rest of this entry…

 
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Why Should States Be Viewed as “Trustees of Humanity” and What Could Be the Implications?

Published on September 3, 2013        Author: 

Eyal BenvenistiEyal Benvenisti, LL.B (Jerusalem) 1984, LLM (Yale) 1988, JSD (Yale) 1990, is Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law.

To whom are sovereigns accountable? In 1609 King James I offered Parliament his answer. Starting from the premise that the “[e]state of the monarchy is the supremest thing upon earth,” he equated kings to gods, because “they exercise a manner or resemblance of divine power upon earth.” Kings have absolute power and authority, “and yet accountable to none but God only.” A year later, Sir Edward Coke, then the Chief Justice of the Court of Common Pleas, handed down two judgments that contested King James’s vision. In Coke’s view, “the King cannot change any part of the common law … without Parliament” (Case of Proclamations), and even Parliament is not supreme but “controlled” by the common law (Dr. Bonham’s Case). This debate about the internal accountability of governments has drawn the attention of political philosophers and marked the evolution of domestic constitutional and administrative law ever since.

But to whom is the sovereign state as a whole accountable? Can we be satisfied with Coke’s focus on only the domestic aspect of officeholders’ accountability? Shouldn’t famine in food-importing countries count as a relevant consideration when a government considers limiting the export of grains to those countries? Shouldn’t the Indian Parliament or court take into account the adverse effects of IP regulation on foreigners whose lives depend on generic drugs made in India? It is, perhaps, the intensity of that internal debate about the limits of sovereign authority which has eclipsed an even older discourse concerning the external accountability of sovereigns. The idea that the state itself is inherently limited by obligations owed to other states and to humanity at large has a longer pedigree than the King James-Coke exchange, dating back to Stoic thinkers. As the modern concept of sovereignty began to take shape, this view of the state’s external accountability was revived by Grotius, and later by Wolff and Vattel. Despite their efforts, however, and perhaps because national governments were busy solidifying their internal authority and shielding it from the Church and other external contenders, the notion of external limitations on state sovereignty failed to gain traction.

In an era marked by extensive economic integration, diminishing resources and shrinking space, when sovereigns routinely regulate resources that are linked in many ways with resources that belong to others, even Coke’s promise of internal accountability of sovereigns leaves much to be desired. Read the rest of this entry…

 

Why is David Cameron in this blog’s attic, naughtily rattling my cage?

Published on September 2, 2013        Author: 

You might remember me.  I am the editor who doesn’t write much, and I have been less engaged here than I would have liked for the past few months as I am in the process of moving to Manchester.  I did prepare an entry on the legal nonsense currently being spewed, principally by the UK, on forcible intervention in Syria, but Dapo posted first (here and here and here) and, to be honest, he did so extremely well.  I can add little to what he has said.

On the other hand, as someone said in the comments to one of Dapo’s posts, at least international law is being discussed in the UK parliament.  It is a pity that the government has been doing this so blatantly badly.  Former Australian foreign minister Gareth Evans, who was central in formulating the responsibility to protect doctrine, has apparently accused the UK government of “making things up as it goes along”.   On a brighter note, the House of Commons rejected the government’s motion that would have opened the door to possible UK intervention in Syria, by 285 votes to 272, with 91 members of parliament absent.  Read the rest of this entry…

 
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Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

Published on September 1, 2013        Author: 

Dr Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The anticipated use of military force against Syria in reaction to the use of chemical weapons does not meet the permitted exceptions to the prohibition on the use of force under the United Nations Charter. Security Council authorisation has not been forthcoming, while self-defence is obviously not applicable. Although British MPs have blocked a United Kingdom military intervention, the United Kingdom government had relied up on humanitarian intervention as the legal basis to justify the use of force. The doctrine is controversial and as Dapo Akande has shown, it at best has weak legal standing in international law. But the type of limited military intervention envisaged bears all the hallmarks of a reprisal, rather than humanitarian intervention, and this concept is equally problematic in modern international law.

 Reprisals are a traditional means of law-enforcement, involving the unilateral use of force in response to breaches of international law. The Institut de Droit International defined reprisals involving the use of armed force in a resolution passed in 1934:

Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.

 The purpose of military intervention against Syria seems to be both punitive and deterrent; to punish Syria using chemical weapons in breach of international law and to deter any further use.  Such military action would be prima facie unlawful, in that it fails to meet the terms of the United Nations Charter. But might it be lawful as an armed reprisal?

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Announcements and Events: Singapore Investment Arbitration Conference and Forum

Published on September 1, 2013        Author: 

The Center for International Law at the National University of Singapore announces its 4th Annual Singapore Investment Arbitration Conference, Investment Treaty Arbitration in Asia: What Lies Ahead, to be held 3 December 2013. Details and registration here. A special combined registration is available for those wishing to attend both the conference and the Singapore International Arbitration Forum, organized by Maxwell Chambers, to be held on 2 December 2013.

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