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Home Articles posted by Marko Milanovic (Page 37)

European Court decides A and others v. United Kingdom

Published on February 19, 2009        Author: 

Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71, decided by the House of Lords several years ago. The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
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The Tricky Question of State Succession to International Responsibility

Published on February 16, 2009        Author: 

Consider the following scenario: state A commits an internationally wrongful act (say genocide) against state B, incurring responsibility for doing so and giving state B an entitlement to reparation. Before state B actually manages to obtain reparation from state A, state A dissolves into two new states, X and Y. What happens to A’s responsibility towards B? Does it devolve to X and Y, and how? Alternatively, what happens if A does not dissolve and manages to continue its international personality, but two of its smaller territorial units, X and Y, successfully secede from it, and become states in their own right? What then?

Both of these factual scenarios involve state succession, defined as change or transfer of sovereignty over a territory. The first scenario is one of dissolution. State A and its international personality have ceased to exist, and two new states have emerged. The second scenario is one of succession alongside continuation. State A is territorially diminished, but its identity and international personality remain the same. Again, however, two new successor states have emerged on the territory of their predecessor. The dissolution of Czechoslovakia and the Socialist Federal Republic of Yugoslavia are examples of the former scenario, while the best example of continuation and separation is the Soviet Union, which continued its existence as the Russian Federation, along a number of new successor states. (Note that a continuator state is often misleadingly termed as the successor state, even though there may be a number of actual successor states alongside the continuator.)

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Judge Owada Elected as New ICJ President

Published on February 12, 2009        Author: 

Last week, the judges of the International Court of Justice elected Judge Hisashi Owada as the Court’s new President, and Judge Peter Tomka as its new Vice-President, each for a term of three years. The ICJ press release is here. Three new judges have also now assumed their seats on the bench, namely judges Greenwood, Cancado Trinidade and Yusuf, while three judges have departed the Court, namely former President Higgins, and judges Ranjeva and Parra Aranguren.

 
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ICTY Trial Chamber Suspends Seselj Trial

Published on February 11, 2009        Author: 

The most poorly run trial ever before the ICTY – the high profile proceedings against the ultra-nationalist Serbian leader Vojislav Seselj – has entered into what I can only call its metastasis. AP reports that today the Trial Chamber, by 2 votes to 1 (presiding Judge Antonetti dissenting), decided to adjourn the trial indefinitely, for fears that the integrity of the proceedings has been compromised. The most serious allegations involve witness intimidation by Seselj’s associates – indeed, Seselj himself has recently been charged with contempt of Tribunal for disclosed the identity of a witness in the most recent, 1000 page instalment in his endless, Mein Kampf-like book series that he (supposedly) writes while in detention.

The trial itself has truly devolved into a travesty, with the presiding judge in particular showing an incredible lack of ability to manage the self-representing Seselj. In short, Seselj was basically allowed to run his own trial. That Seselj himself is probably one of the most obnoxious and irritating human beings in all of creation is really not an excuse for the amount of incompetence that has been displayed at the ICTY (see generally A. Zahar, ‘Legal Aid, Self-Representation and the Crisis at The Hague Tribunal’, (2008) 19 Criminal Law Forum 241; G. Sluiter, ‘Compromising the Authority of International Criminal Justice–How Vojislav Šešelj Runs His Trial’, (2007) 5 Journal of International Criminal Justice 529)

There is for now no indication how the trial might find its way out of limbo. I won’t even try to explain what kind of impact these developments can have on the already abysmally poor public perception of the ICTY in the Balkans, Serbia in particular. (Not to mention the fact that poor Serbia (i.e. me; self-pity is the best kind of pity) is going to have to suffer through Seselj’s return to the country, probably sooner rather than later, and through his boasting that he actually managed to defeat the Tribunal.)  What is fairly certain is that no-one working in the ICTY – least of all the judges – will actually bear any consequences for this fiasco.

 
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A Lucky Child, by Thomas Buergenthal

Published on February 1, 2009        Author: 

I wanted to bring to our readers’ attention a wonderful new book that is not about international law, but is about a great international lawyer. Judge Thomas Buergenthal’s memoir, A Lucky Child, has just been published in the United Kingdom and the United States. It had previously been published in Germany, where it has been a bestseller, and in several other European languages.

In the book, Buergenthal tells the story of his survival as a young boy of the horrors of Holocaust. In that, of course, his story is one shared by so many millions – from the flight of his family from Slovakia to Poland, to their life in the ghetto of Kielce, up to their transport to Auschwitz. What is unique about his story is not just his telling of it, which is formidable, and of course that he lived to tell it, but the very number of occasions where the young boy’s survival was determined not only by his wits and the people who were there to help him, but by sheer luck.

Photo Credit: US Holocaust Museum

Photo Credit: US Holocaust Museum

It is hard to describe a person who found himself in Auschwitz as ‘lucky’, but Buergenthal himself has no better word for it. From the fact that there were none of the infamous selections on the day he arrived in Auschwitz, to his survival of the death march when the camp was being evacuated, to an almost fantastic episode when the 11-year old was adopted as a mascot by the advancing Polish soldiers who took him with them to the Battle of Berlin (giving him his first taste of vodka in the process), up to him being discovered by his mother in a Polish orphanage after the war — there can be no doubt that otherwise fickle Fortune was constantly at his side. Though the narrative is often depressing and will bring you to tears, it is a message of hope that will stay with you once you put the book down.

One can only be grateful that such a man now sits in the Peace Palace in The Hague. Buy the book and read it, and be wiser for it. (Amazon UK, Amazon US).

Filed under: EJIL, EJIL Reports
 

Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

Published on January 29, 2009        Author: 

In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

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A Comment on Simon Chesterman on the Privatization of Intelligence

Published on January 25, 2009        Author: 

Prof. Chesterman’s article does an excellent job in exposing and explaining the phenomenon of the privatization of intelligence in recent years, particularly in the United States. To someone who, like myself, has followed the PMSCs debate only on the margins, the information that 70% of the US intelligence budget is spent on private contractors came as somewhat of a shock.  Chesterman explains very well the accountability and oversight gaps caused by the outsourcing of both intelligence collection and intelligence analysis. Especially troubling, of course, are situations where individuals’ life and liberty are put at the disposal of private contractors, as for example during interrogations or renditions.

Chesterman also explains well the specific problems that the outsourcing of intelligence, as opposed to PMSCs generally, poses for accountability. These are its inherent secrecy, the (perverse) incentives caused by the insertion of a profit motive into intelligence activites, and the difficulty of establishing which intelligence functions qualify as ‘inherently governmental’, and thus not outsourcable. (Not to mention the sheer callousness of some people working in the field, who can come up with a slogan as frivolous as is ‘We Can’t Spy… If We Can’t Buy’, in a Powerpoint presentation no less, that is featured in the title of the article.)

The article of course focuses on the United States, which both wields an enormous intelligence apparatus and where the privatization of intelligence is most pervasive. A question that I would have liked answered is to what extent is the phenomenon of privatization of intelligence (still) confined to the United States, and explained by its own idiosyncrasies. Do we have, for example, have any comparable data on the United Kingdom?

This brings me to my only really substantive comment – at the time being at least, what does international law, as opposed to domestic US law for example, have to say on the privatization of intelligence? I understand that Chesterman did not want to rehearse arguments on, say, state responsibility and PMSCs – in that regard, Chesterman’s and Carsten Hoppe‘s articles complement each other nicely. I would still have liked to see some discussion on what, if anything, international law has to contribute to managing the problems posed by the privatization of intelligence, particularly those of its aspects which do not necessarily apply to PMSCs generally.

Filed under: EJIL, EJIL: Debate!
 
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The OLC Memoranda on Iraq: Revisiting the Case for War

Published on January 10, 2009        Author: 

Yesterday, the Office of the Legal Counsel of the US Department of Justice released some of its secret memoranda to President Bush, several of which are of interest for international lawyers. Two of them deal with questions of IHL, that is the applicability of the Third Geneva Convention to the Taliban, and of the Fourth Geneva Convention to the occupation of Iraq. Three memos, on the other hand, provide the OLC’s advice to the President on the legality of the use of force against Iraq, both under US constitutional law and under international law.I’d like to say a few words about these three memos (authored by the same indomitable Bybee/Yoo team of torture memo fame), both on the quality of their substantive analysis and on the boundaries of the proper role of government legal advisers.

I’d also like to compare these memos of US legal advisers with those of their British counterparts, particularly the opinion of the then Attorney General, Lord Goldsmith.

The most important of the three opinions was signed by Jay Bybee on 23 October 2002 (Iraq Opinion). In its third part (at 17 ff), it gives two possible justifications for the US use of force against Iraq: (implied or implicit) UN Security Council authorization and (anticipatory or pre-emptive) self-defense. The second opinion, signed by John Yoo on 8 November 2002, deals with the impact of UNSC Resolution 1441 on the implied authorization argument made in the previous Iraq Opinion (1441 Opinion). The third opinion was also signed by Yoo, on 7 December 2002, and it addresses the issue whether false declarations on WMD by Iraq would constitute a further material breach of Resolution 1441 (Material Breach Opinion).

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Filed under: EJIL Analysis, Iraq, Use of Force
 

A Follow-Up on Israel and Gaza

Published on January 3, 2009        Author: 

I just wanted to add a few thoughts after Dapo’s excellent post on the Gaza conflict, of which there seems to be no end in sight.

First, a word of warning. As Dapo pointed out, talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases. Without knowing exactly how many of those killed in Gaza were actively participating in hostilities and/or were members of Hamas, it is far, far too early to speak of Israeli massacres or war crimes in Gaza. Take as an example the statement by Richard Falk, the recently appointed UN Special Rapporteur on human rights in the occupied territories, who condemned the Israeli air strikes as massive violations of international humanitarian law, war crimes and crimes against humanity on the very day that they began. How exactly does he know enough of the facts to actually be able to pass a reasoned judgment, when even today these facts are far from clear? Such statements only serve to reinforce the criticisms regarding Prof. Falk‘s bias against Israel that were made when he was appointed.

Far be it for me to minimize the humanitarian plight of the people of Gaza. But for a legal analysis of the issue to have any use at all, it must involve a measure of distance and objectivity.

In that regard the first legal issue I’d like to raise is that of proportionality, a word thrown around so much these days when talking about the Gaza conflict. It is truly astonishing to me how people who so casually label Israel’s action as disproportionate fail to distinguish between the various types of proportionality found in international law.

The first type of proportionality is the law on the use of force or jus ad bellum proportionality, as one of the conditions for the lawfulness of self-defense, together with the existence of an armed attack and the necessity to repel it. It is easy to instinctively qualify Israel’s action as an exercise of self-defense, lawful or unlawful — see, for example, this post by Ole Pedersen — which should then be assessed in the terms of the jus ad bellum.

But for the life of me, I just can’t see a jus ad bellum issue in regard of Israel’s actions in Gaza. This is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine. In other words, no state claims sovereignty or title over Gaza, and the sovereignty of no state was infringed by Israel’s use of force. Article 2(4) does not apply, and consequently Article 51 and the self-defense notion of proportionality do not apply either, unless one is willing to argue that Palestine (Gaza included) already is a state in international law – a position that is in my view untenable.

(By way of authority, let me cite the ICJ’s Wall advisory opinion, at the much criticized para. 139. The Court has received much flak over the years for what appears to be its off-hand approach to armed attacks by non-state actors, to which Article 51 in the Court’s view supposedly does not apply. But the better reading of this decision is the one I have given above — Israel could not justify its building of the wall in the occupied Palestinian territories by resorting to Article 51, because Article 2(4) did not apply in the first place. A converse situation would be Israel’s response against Hezbollah, which required it to invade Lebanon, thereby triggering Article 2(4)).

That brings me to the second, IHL or jus in bello concept of proportionality, as enshrined in Art. 51(5)(b) of AP I. This concept of proportionality differs from the jus ad bellum one precisely in that is unconcerned with the overall goals, legitimacy or legality of the use of force. It is irrelevant, from the standpoint of IHL, that on balance ten or a hundred Palestinians are killed for every Israeli killed. It is likewise irrelevant whether the use of force is likely to achive its stated objective of putting an end to the rocket attacks by Hamas. That is not part of the IHL equation, since the point of IHL is precisely for it to apply in all conflicts, just or unjust, legitimate or illegitimate, equally to all sides.

What IHL tries to weigh – with great difficulty in some cases – is whether the expected civilian casualties are excessive in relation to the concrete and direct military advantage anticipated. The military advantage is just that, a military one. Does the attack hurt Hamas or not, and how much – not whether hurting Hamas in the first place is a good idea. It likewise must be emphasized that IHL proportionality is assessed in relation to every given attack, not in relation to the overall picture of the conflict. Without having a good idea about the facts on the ground, just knowing that on the whole many more Palestinians are killed than Israelis cannot suffice for making a judgment on proportionality.

The third type of proportionality is one under human rights law. Was it, for example, really necessary to kill a certain person, if he could have been captured instead? This type of proportionality was relied on, for instance, by the Israeli Supreme Court in the Targeted Killings case, to limit the use of targeted killings to measures of last resort. But it is also questionable if, and to what extent, this principle applies to the Gaza conflict, both because of the question whether Israel actually exercises effective overall control over Gaza, thus incurring extraterritorial human rights obligations, and because of the application of IHL as lex specialis.

Finally, I’d just like to add a few words to Dapo’s analysis of the question of how we are to legally characterize the Gaza conflict in the sense of IHL. Unlike Dapo, I don’t think that the characterization of the conflict depends on whether Gaza is still considered to be occupied by Israel or not. It is one thing to say that an international armed conflict is necessary for a belligerent occupation to arise in the first place. It is quite another to say that any conflict in an occupied territory, no matter how distant in time from the setup of the occupation, should qualify as international. It is precisely because no sovereign continues to claim Gaza that I would say that the conflict is probably non-international (FYI, for my criticism of the Israli Supreme Court’s qualification of the conflict in the Targeted Killings case, see this article in the International Review of the Red Cross).

But, as Dapo pointed out, the qualification of the conflict is not that important for the IHL proportionality assessment. What is important are the facts, and it is the facts that we are most sorely lacking.

 

Territorial Scope of Application of the Genocide Convention

Published on December 29, 2008        Author: 

In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.

To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:

(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;

(2) The (positive) obligation to prevent genocide;

(3) The (negative) obligation not to commit genocide through their own organs or agents.

This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?

According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.

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Filed under: EJIL Analysis, Genocide
 
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