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Home Archive for category "EJIL Analysis" (Page 165)

What’s in a Name: The GWOT, Redefinition Accomplished

Published on April 2, 2009        Author: 
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These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

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The Security Council and Human Rights: What is the role of Art. 103 of the Charter?

Published on March 30, 2009        Author: 
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At last week’s ASIL meeting there was a panel on whether the United Nations Security Council is bound by human rights law. The panelists (Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Linos-Alexander Sicilianos, University of Athens  & Gráinne de Búrca, Fordham University School of Law) discussed cases such as the Kadi decision of the European Court of Justice, Al Jedda (House of Lords), Sayadi (Human Rights Committee and Behrami (European Court of Human Rights). These cases have been the subject of posts on this blog (for Kadi, see here and here, for Sayadi, see here and for Behrami, see here). One of the things that strikes me about much of this discussion is the use made of Article 103 of the UN Charter. That article provides that:

In the event of 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.

Of the four decisions mentioned above, only the Al Jedda decision discusses and applies Art. 103. According to Lord Bingham,

The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1) [of the European Convention on Human Rights]. (para. 26)

The House of Lords held that the Security Council authorisation to detain the appellant did indeed bring Art. 103 into play (on the theory that Art. 103 also extends to authorisations) and that rights under the ECHR were qualified to the extent that they conflicted with that authorisation. Some have criticised the ECJ in Kadi  and the Human Rights Committee in Sayadi for not evening mentioning Art. 103 and for failing to take the Al Jedda approaching (for some more discussion of this issue see here and here).

However, the role of Art. 103 is often overplayed in these debates concerning the conflicts between Security Council obligations and human rights law.  There are 2 overlapping questions here: (i) Is the Security Council bound by human rights norms when it acts (eg in combatting terrorism, imposing sanctions or in authorising action in peacekeeping or peace enforment)?; (ii) are States bound to apply Security Council decisions that may conflict with the human rights obligations of those States?.  Art. 103 does not and cannot answer the first question. Art. 103 should not be regarded as the starting point in answering the second question. Furthermore one may not even reach Art. 103 in answering that latter question. Read the rest of this entry…

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Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

Published on March 24, 2009        Author: 
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The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.

 In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that

 Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

 The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal. Read the rest of this entry…

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Distinctions between the Legal Position of ICC Parties and Non-Parties Regarding Aggression

Published on March 21, 2009        Author: 
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The International Criminal Court (ICC) recently released the latest report of the Special Working Group (of the Assembly of States Parties) on the Crime of Aggression.  Art. 5 of the ICC Statute includes the crime of aggression as one of the crimes within the jurisdiction of the Court. However, the Court may only exercise jurisdiction over it once a provision has been adopted defining the crime and setting out the conditions under which the Court shall exercise over it. In anticipation of the ICC Review Conference to be held in 2010, the Special Working Group has been developing proposals on aggression.  The latest report reveals that the members of the Group are largely agreed on the definition of the crime of aggression which is based on General Assembly Resolution 3314 (1974) on the “Definition of Aggression.” According to the definition proposed by the Group:

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

“Act of aggression” is then said to mean:

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: . . .

However, deep divisions remain over the role of the Security Council when attempts are made to invoke the jurisdiction of the ICC over aggression. In particular there is no agreement on whether the approval of the Security Council is required for the Prosecutor to proceed with an investigation regarding aggression and on whether a determination of aggression by the General Assembly or the International Court of Justice should suffice for the Prosecutor to proceed.  Questions also remain as to how the amendments regarding aggression are to become operatonal and as to whether the Security Council may refer a situation concerning aggression to the ICC before the entry into force of the amendments but after the Review Conference adopts a definition. The latter issue raises questions about the interpretation of Art. 121(5) of the Statute and whether there is a difference between the position of State parties and non-parties under the Statute. Read the rest of this entry…

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The Obama Administration’s Total Misinterpretation of IHL Regarding the Authority to Detain Suspected Terrorists

Published on March 14, 2009        Author: 
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Yesterday the Obama administration filed a brief with the US District Court for the District of Columbia regarding its detention authority of persons previously classified by the Bush administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the legal basis of the detention of suspected terrorists.

The brief has already made headlines because the Obama administration decided to scrap the rightfully much maligned term ‘enemy combatant.’ The one other notable legal development is that the administration also rejected the Bush position that it had inherent constitutional authority to detain these persons, but based its authority solely in a statute, the 2001 Authorization for the Use of Military Force (AUMF).

The substantive standard for detention offered by the Obama administration, however, is almost identical to the one offered by the Bush administration:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

(Brief at 1)

As explained by Deborah, the only difference is that the Obama administration requires persons to have substantially supported Taliban or Al-Qaida, while for the Bush administration support alone sufficed. This change is obviously nothing more than cosmetic.

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Who is Obliged to Arrest Bashir?

Published on March 13, 2009        Author: 
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Last week, the International Criminal Court issued an arrest warrant for the Sudanese President, Omar Al Bashir. The Pre-Trial Chamber of the ICC directed the ICC Registry to transmit a request for arrest and surrender of Bashir to (i) all States Parties to the ICC Statute and (ii) all United Nations Security Council members that are not States Parties to the Statute. Does this mean that these States are under an obligation to arrest Bashir were him to travel to their territory? Are these States even permitted by international law to arrest Bashir? It remains to be seen whether Bashir would be bold enough to leave Sudan. For example would he attend the Heads of States meeting of the African Union or perhaps wish to attend the annual session of United Nations General Assembly in New York. Were Bashir to travel abroad, States, particularly non-parties to the ICC Statute (like Ethiopia and the United States) would be faced with these tricky questions

 The answer to these questions depend on the extent to which international law accords immunity to Heads of States and on the legal nature of Security Council referrals of situations to the ICC. Many have noted the significance of an international tribunal issuing an arrest warrant for a serving Head of State. Of course, this is not the first time that this has happened. The ICTY issued a warrant for Milosevic while he was head of the State of the Federal Republic of Yugoslavia and the Special Court for Sierra Leone indicted Charles Taylor while he was President of Liberia. Christine Chung notes in her post below that there has been no hand-wringing by other States about Bashir’s immunity and suggest that this is a matter of interest only to academics. States may not have commented on this issue but this is only because States have not as yet been faced with the question. States will only be faced with the question if Bashir travels abroad and they are called upon to arrest him. In that scenario, States will have to consider not only this particular case but also the precedents that they wish to set. They will also have to consider what obligations they may have under the ICC Statute, under other treaties (including the UN Charter) and under customary international law.

While, the ICC Pre-Trial Chamber implicitly answered one part of the immunity question in its decision, it has not disposed of the entire question. The Pre-Trial Chamber in para 41considered that

the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.

The PTC reached this decision based on four considerations the most important of which are that: (i) Art. 27 of the ICC provides that the Statute applies equally to all persons without distinction based on official capacity and that immunities which may attach to official capacity under national or international law shall not bar the Court from exercising jurisdiction; and (ii) the Security Council by referring the Darfur situation to the Court has accepted that the investigation and prosecution shall take place in accordance with the framework set out in the Statute.

Implied in the Court’s statement is the view, that the Security Council has implicitly adopted Art. 27 and thus implicitly sanctioned the exercise of jurisdiction by the Court over a serving head of State who would otherwise be immune from jurisdiction. I do not disagree with this. Any other view would leave Article 27 without effect.

However, the Court does not have power of arrests. Unless Bashir surrenders voluntarily, it will have to depend on a State to arrest Bashir. The question that then arises is whether Bashir is immune from arrest by national authorities. Read the rest of this entry…

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Attribution of Conduct to International Organizations in Peacekeeping Operations

Published on March 10, 2009        Author: 
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Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

  Read the rest of this entry…

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Justice for Bashir: What’s Different Today?

Published on March 5, 2009        Author: 
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Christine Chung is a Senior Fellow at the Schell Center for International Human Rights, Yale Law School where she teaches “The International Criminal Court: Prospects for Global Justice.” Ms. Chung was the first senior trial attorney appointed at the Office of the Prosecutor of the International Criminal Court and worked in The Hague from 2004 to 2007.

If you’re looking for the justification for the front-page media headlines about the ICC warrant naming Sudanese President Omar al-Bashir, there are two, to my mind. First, the world’s permanent international criminal court has charged a sitting head of State, and sister States aren’t close to hand-wringing over immunity. (My academic colleagues are a different matter – read, for example, Marko and Dapo). Yesterday’s decision might be the nail in the coffin of the era in which heads of State escaped being called to account for perpetrating atrocities.

Second, the decision of Pre-Trial Chamber I to decline to include the charge of genocide requested by Prosecutor Luis Moreno Ocampo (by a 2-1 vote) reinforced that pursuing a genocide charge is, for an international prosecutor, fraught with peril. The old legal issues of how to define an “ethnic” group and where to find the specific intent to destroy a group (in the usual case, where there is no direct evidence) were very much in evidence in the Chamber’s split opinions. On top of those, the Judges wrestled with questions about the degree to which the ICC should adopt or follow genocide jurisprudence from the ICJ and the ad hoc tribunals, the proper interpretation of the “reasonable grounds” standard applicable at the stage of evaluating a request for an ICC arrest warrant, and how to reconcile the Rome Statute provisions with the ICC Elements of Crimes. Bottom line: the need to settle the law of this new Court, if anything, further complicates the already extremely difficult business of proving genocide.

As fascinated as we lawyers are by judicial decision-making, though, it’s more important in Bashir’s case to identify what did not change yesterday. Read the rest of this entry…

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ICC Issues Arrest Warrant for Bashir, but Rejects the Genocide Charge

Published on March 4, 2009        Author: 
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(Updated)

Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

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Is Gaza Still Occupied by Israel?

Published on March 1, 2009        Author: 
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While the recent conflict between Israel and Hamas was still ongoing, I was wary of commenting on what is a very contentious legal issue – whether Gaza is still to be considered as occupied as a matter of international humanitarian law, even after Israel’s unilateral disengagement from Gaza in 2005. I was wary of doing so primarily because the issue is a complex one, because these complexities can often get lost in the passion of the moment, and, well, because at the time I hadn’t yet done my homework. Even now I’d just like to offer some tentative thoughts, and point the readers to excellent new scholarship on the issue. The first work I’d like to strongly recommend is Yuval Shany’s article on Gaza, commenting on the Israeli Supreme Court’s Bassiouni decision, which is available on SSRN (h/t International Law Reporter).  The second is Yoram Dinstein’s book The International Law of Belligerent Occupation, which has just been published by CUP, and which promises to be one of the definitive works on the whole subject.

If you have been following the debates on Gaza closely, you will know that there are two reflexive answers to the question whether Gaza is occupied, on both ends of the spectrum. The first one is that of course Gaza still continues to be occupied by Israel. Israel controls all of the border crossings, the air, the sea, its soldiers can enter Gaza at will, so on and so forth. The second is that of course Israel no longer occupies Gaza. It has no actual, effective control of the place, which is the factual predicate for any occupation. It does not have troops on the ground and it is not running an administration of the territory. It is Hamas that has such control. Gaza is not under Israeli occupation, but under a siege and a blockade, and rightly so.

Now, before I get into the specific arguments on either side, it is important to explain why the issue matters, and why many in the human rights community in particular tend to (again, somewhat reflexively) adopt the first position. The answer is simple. Under IHL, a belligerent occupant has positive obligations to ensure the well-being of the civilian population, including the provision of food and other supplies. In a state of siege without occupation, however, the party to the conflict only has negative obligations not to interfere with relief consignments etc., and even these can be subject to military necessity. It does not have to provide food and supplies to the civilian population of its adversary (cf. Arts. 69 & 70 of Additional Protocol I). Indeed, to impose such a requirement would be manifestly absurd. The problem is of course precisely that the civilian population of Gaza is heavily dependent on Israel and need Israel not just to let humanitarian aid through, but also to provide electricity and other supplies of its own.

This is why the gentler souls among us international lawyers need to argue that Israel is the belligerent occupier of Gaza. It is the only legally certain way of assigning some positive obligations on Israel to provide for the civilians of Gaza – something that by the way I agree with entirely as a matter of policy. But the certainty is unfortunately only deceptive. Let me now turn to the specific argument and counterarguments.

Read the rest of this entry…

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Filed under: EJIL Analysis, Israel, Occupation