Home Archive for category "International Law and Domestic Law" (Page 10)

The Conviction by an Italian Court of CIA Agents for Abduction – Some Issues Concerning Immunity

Published on November 7, 2009        Author: 

As Marko reported in an earlier post, an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition”  was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (for media report, see here, here, here and here). This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States. Why is it that in this case Italy was able to exercise criminal jurisdiction over US agents? Or has the Italian court acted contrary to international law in proceeding with the case and not according immunity to the US officials agents. There are at least three types of immunity at issue here. First of all, the case raises issue as to the scope of diplomatic immunity. Secondly, the case raises issues as to the scope of consular immunity and highlights how this type of immunity differs from diplomatic immunity. The third type of immunity at issue is the immunity ratione materiae which all those who act on behalf of a foreign government are entitled to. This doctrine provides immunity from foreign criminal jurisdiction to a person where the act they have performed is essentially the act of a foreign government. Here the immunity attaches to the act itself and not so much to the official with the effect that this immunity is also available to former officials.

Issues relating to the first two types of immunity arise because some of the American defendants were US diplomatic and consular agents in Italy. It has been reported that three Americans were acquitted on grounds of diplomatic immunity. Presumably, those granted diplomatic immunity by the Italian court were members of the diplomatic staff of the US mission to Italy, which simply means they are members of staff with diplomatic rank (Art. 1 (d) of the Vienna Convention on Diplomatic Relations 1961). It would not be unusual for intelligence agents to be granted such status and the head of the CIA in Italy was one of those granted immunity in the case. However, it is also reported that the Italian Court convicted at least one person (Sabrina de Sousa) who was a US consular officer at the time of the rendition. I do not know whether the US claimed diplomatic immunity in case of those for whom immunity was granted. However, the US government did not claim consular immunity in the case of Sabrina de Sousa who then sued the US State Department in an attempt to force the US government to make such a claim (see the report in the New York Times and here for her court claim).  Although this might appear to be contradictory, there are differences in the relevant provisions of the two Vienna Conventions on Diplomatic and Consular Immunity  which might justify the difference. Both conventions provide for immunity for diplomatic agents and consular officers. Art. 43(1) of the Consular Convention provides for immunity from the jurisdiction of the receiving State “in respect of acts performed in the exercise of consular functions.” Art. 39(2) of the Diplomatic Convention provides that former diplomatic agents will continue to be immune even after they leave office, “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” It is much easier to argue that acts (even acts which may be illegal) come within the exercise of a person’s function as a member of a mission than it is to argue that acts come within the exercise of consular functions. Art. 3 of the Diplomatic Convention provides a broad definition of the functions of a diplomatic mission. These functions include: representing the interests of the sending state within the receiving state and negotiating with the government of the receiving State. Since the purpose of immunity is preclude a court from making a determination whether an act is lawful or not, it cannot be a limitation to the immunity with respect to these functions to say that they cannot extend to unlawful conduct. However, Art. 5 of the Consular Convention provides a much more specific and narrow definition of consular functions. It is difficult to argue that arranging for the abduction of a person would be an exercise of consular functions. The question here is not that such acts are unlawful but rather that they just don’t fall within the ordinary understanding of the scope of consular functions as defined in Article 5. Read the rest of this entry…

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New UK Supreme Court Begins Work with Cases dealing with UN Sanctions Regime

Published on October 12, 2009        Author: 

As Marko reported in the summer, the House of Lords (or to be more precise, the Appellate Committee of the House of Lords) has been replaced as the final court of appeal for the different legal systems that form the UK by a Supreme Court. The new Supreme Court took over the functions of the Law Lords on 1 October 2009. The Appellate Committee of the House of Lords, consisting of fully qualified and professional judges appointed to the House of Lords (one of the two chambers of the British Parliament), had been the final court of appeal in the UK since 1876. Prior to that date, the House of Lords (the legislative body) had served as the final court of appeal and before 1399, both Houses of Parliament  (the Lords and the Commons) heard petitions for judgments of lower courts to be reversed.

When compared with other countries, the position of the House of Lords (in its judicial capacity) was anomalous in that it failed to represent the principle of separation of powers. Though the Law Lords (or Lords of Appeal in Ordinary as they were formally designated) were professional judges, usually appointed from the lower courts, they were members of the House of Lords in its legislative capacity and could sit and vote in the legislative chamber. In practice, they rarely did so but on occasion they did. The Lord Chancellor was until 2005 head of the House of Lords in both its legislative and judicial capacities and was also a member of the cabinet! The Law Lords heard appeals in committee rooms in Parliament and judgments were delivered in the chamber of the House of Lords.

The new Supreme Court is the final court of appeal for England & Wales, for Northern Ireland and for civil cases arising from Scotland. It is composed of 12 Justices of the Supreme Court (a new term). All the existing law lords were automatically appointed to the Supreme Court though they no longer have the right to sit and vote in the House of Lords. In a move with symbolic significance, the Supreme Court has moved out of the  House of Lords and occupies a separate building on the opposite side of Parliament Square in Westminster, London.

The Supreme Court held its first hearings on October 5 with appeals on cases of great significance for international law. Its first cases deal with the legality of the UK domestic orders which implement Security Council Resolution 1267 (for media reports see here; for details on the Supreme Court site, see here and here). Under that resolution UN Member States are obliged to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. The Supreme Court held hearings last Monday (Oct 5) on those cases which Antonios recently commented on here on EJIL:Talk!  These are the cases of Hay v HM Treasury ([2009] EWHC 1167 (Admin)) (where unusually the appeal has gone straight from the High Court to the Supreme Court) and A, K, M, Q & G v HM Treasury [2008] EWCA Civ 1187. In both cases, persons subjected to the Al-Qaida and Taliban (United Nations Measures) Order 2006 (’AQO’) which implemented SC Resolution 1267 argue that the Order impermissibly deprives them of fundamental rights (principally the right of access to a Court) without the explicit permission of Parliament. Judgment in these cases is expected next month and we will have comment on them here on EJIL:Talk! Read the rest of this entry…

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Stepping Up the (Dualist?) Resistance: The English High Court Quashes Domestic Measures Implementing UN Sanctions

Published on October 9, 2009        Author: 

Antonios Tzanakopoulos, D.Phil. cand. (Oxford), LL.M. (NYU) (Athens), is Lecturer in Public International Law at the University of Glasgow. A relevant paper presented at the University of Vienna in September 2009 can be found here in draft form.

I. Introduction: the 1267 Regime and Domestic Courts

For quite some time now there has been significant discontent about the fundamental rights implications of Security Council sanctions, in particular individual sanctions under the regime established by Resolution 1267 (1999) and subsequent Resolutions (see eg this blog here and here). The 1267 regime obligates UN Member States to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. But those identified by the Committee have no recourse against their designation, and no other remedy except the possibility to petition the Committee for delisting. Decisions on such petitions are taken in camera and no justification is required (see the Committee’s Guidelines).

Since Security Council decisions are not directly enforceable in most municipal legal orders, Member States of the UN have had to transpose the relevant measures imposed by the Council. This was done through the adoption of domestic implementing acts, usually of administrative character, in order to comply with their obligations under Article 25 of the UN Charter. The fact however that sanctions were imposed ‘on the ground’, as it were, by domestic administrative decisions, combined with the lack of any other recourse, has led affected individuals to attack the domestic implementing measures in the courts of various Member States (see here for the Monitoring Team reports, detailing challenges in the Annex).

II. Domestic Courts Have Teeth

The ECJ, in a decision controversial in its reasoning, if not in its outcome, was the first  court to finally annul such ‘domestic’ implementing measures (in this case adopted on the EC level) acceding to the claim of two listed persons, Kadi and the Al Barakaat Foundation. That decision would have effectively forced the 27 Member States of the Community in breach of their international obligations under the Resolutions and Article 25 of the Charter. The ECJ, however, suspended the effect of the annulment for three months, by which time the Community had adopted new implementing measures.

Still, the ECJ may just have provided the impetus that other domestic courts needed in order to embark upon their own ‘decentralized resistance’ against Security Council sanctions under the 1267 regime. The CFI annulled the domestic implementing measures with respect to Othman, another listed person, without even granting the grace period that the ECJ provided for in Kadi. But most importantly, a month after Othman, on 10 July 2009, the Queen’s Bench of the English High Court quashed the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) in Hay v HM Treasury ([2009] EWHC 1167 (Admin)). Read the rest of this entry…

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Testing the Limits of Diplomatic Protection: Khadr v The Prime Minister of Canada

Published on October 7, 2009        Author: 

Elizabeth Prochaska is a Barrister at Matrix Chambers, London. She has recently completed a period as Judicial Assistant to Baroness Hale and Lord Brown in the House of Lords.

Omar Khadr, a Canadian citizen captured by US forces in Afghanistan at the age of 15 and imprisoned in Guantanamo Bay for 7 years, recently succeeded in convincing the Canadian Court of Appeal to order the Canadian government to request his immediate repatriation by the US  (Khadr v. Prime Minister of Canada 2009 FCA 246). This is no small achievement. Until the Court of Appeal’s judgment, no court – international or municipal – had recognised an obligation on a government to exercise diplomatic protection to safeguard nationals from ill-treatment at the hands of a foreign state.

 The doctrine of diplomatic protection under which the state asserts its right to make claims on behalf of nationals injured abroad is a promising remedy for the human rights abuse of aliens. Governments can engage in all manner of conduct (some of it traditionally diplomatic, some of it outright hostile) under the guise of the doctrine. But as this brief summary of the current status of diplomatic protection shows it has yet to reach its full potential in either international or municipal human rights law.

 In its report on the subject in 2006, the International Law Commission (ILC) proposed a Convention on Diplomatic Protection which would attempt to resolve the dislocation between the traditional understanding of diplomatic protection as a discretionary right of the state and contemporary human rights vested in individuals. However, the ILC did not adopt the recommendation of its Rapporteur, John Dugard, that the Convention require states to guarantee an individual right to diplomatic protection. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that states should be encouraged to exercise diplomatic protection ‘especially when significant injury occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. Discussions in the Sixth Committee at the sixty-second session of the General Assembly 2007  raised the prospect of imposing a positive obligation on states to protect their nationals abroad, but diplomatic protection is not up for consideration by the Sixth Committee again until next year and it remains to be seen whether a Convention will ever be approved. For now at least, customary international law offers little comfort to those suffering human rights abuse abroad.

 In municipal law, the status of an individual right to protection, or a duty to protect, as the Canadian courts conceptualised it in Khadr, is equally uncertain. Read the rest of this entry…

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The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Published on September 23, 2009        Author: 

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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Comment on Benvenisti & Downs’, ‘National Courts, Domestic Democracy, and the Evolution of International Law’

Published on June 23, 2009        Author: 

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.

 In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.

The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.

Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.

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US Appeals Court holds that Former Foreign Officials Entitled to Immunity in Civil Suit alleging War Crimes

Published on May 3, 2009        Author: 

The Second Circuit of the US Court of Appeals has recently (April 16, 09) held  in Matar v. Dichter that the former head of the Israeli General Security Service is immune in a civil suit brought under the US Aliens Tort Claims Act (28 USC  § 1350) alleging war crimes and extrajudicial killing. The suit relates to Dichter’s participation in an attack on a suspected Hamas leader (Saleh Mustafah Shehadeh) in July 2002. Shehadeh’s apartment was bombed by an Israeli military jet in attack which destroyed the apartment building and surrounding buildings. Apart from Shehadeh, 14 other people were killed in the attack. This case is part of  a growing list of US cases addressing the legal basis of the immunity of foreign officials. There is a split among the Circuits of the Court of Appeals as to whether foriegn officials are to be considered as an “agency or instrumentality” and thus entitled to immunity under §1603 the US’s Foreign Sovereign Immunity Act (FSIA) (for recent analysis, see Bradley, Foreign Officials and Sovereign Immunity in US Courts, ASIL Insights, Mar, 2009). Dichter’s argument that he was immune under the FSIA was accepted by the first instance District Court (see here). In an earlier case, the Second Circuit Court of Appeals had held that:

“an individual official of a foreign state acting in his official capacity is the ‘agency or instrumentality’ of the state, and is thereby protected by the FSIA.”  In re Terrorist Attacks on 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008)

However, in Matar v. Dichter, the Second Circuit upheld Dichter’s immunity, but noted that the question presented in this case was whether formerforiegn officials are entitled to immunity under the FSIA. Taking a different approach, the Court stated:

We decline to decide this close question because, whether the FSIA applies to former officials or not, they continue to enjoy immunity under common law. (P. 10)

In upholding the immunity of former officials under the common law, the Second Circuit relied on the views of the US Executive Branch (see here and here) which has long argued that it is not the FSIA that provides immunity to foreign officials (serving or former) in US law but rather the common law and customary international law. Also, the US Executive’s Statement of Interest (see here) argued that, under customary international law, there is no exception to the immunity of foreign officials based on alleged violations of jus cogens norms. This view was accepted by the Second Circuit, correctly in my view. In a previous post, I have argued that there is no jus cogens exception to immunity.

Although, at first glance, these cases relate only to how international law of state immunity is translated to US law, they raise issues of more general interest to international lawyers. The first question raised by these US cases is whether the functional immunity of foreign officials (the immunity of foreign officials with respect to acts performed in the exercise of their official capacity) is the same as the immunity of foreign States. If the two are the same then there is good reason for holding that foreign officials are a manifestation of the State for the purpose of according immunity and there would be good reason to interpret the FSIA (and similar immunity legislation, eg in the UK and Australia) as extending to individual officials. However, this would be erroneous. Read the rest of this entry…

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US District Court Rules on Guantanamo Detention Standard

Published on April 25, 2009        Author: 

A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as ‘enemy combatants’), subsequent to the filing of the Obama administration’s brief that we have previously extensively discussed. Judge Walton’s opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I don’t think that his reasoning is free of all legal difficulties.

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Domestic Enforcement of Decisions of International Tribunals

Published on March 27, 2009        Author: 

I am at the American Society of International Law’s Annual Meeting and attended a panel on the domestic enforcement of decisions of international tribunals.  The panelists, which included distinguished presenters Professors Lori Fisler Damrosch of Columbia University and Andreas Paulus of Gottingen, spoke about the Medellin case of the US Supreme court, about the Kadi decision of the European Court of Justice and comparative perspectives from Canada and elsewhere. Listening to the presentations – which were very good – two questions occurred to me:

1) There must be more practice regarding the domestic implementation of decisions of the International Court of Justice and other international tribunals than is commonly assumed. In Medellin, Chief Justice Roberts stated that:

Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory nations.  . . . [N]either Medelln nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. … [T]he lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts.

It may well be that Chief Justice Roberts is right that no nation treats ICJ judgments as binding in domestic courts. But I wonder whether that is actually so. In particular, it seems to me that looking at the practice of those States that have been involved in territorial and boundary disputes before the ICJ (or international arbitration) would tell us much about whether States regard ICJ decisions as automatically binding in their domestic legal systems. Whenever the ICJ or a tribunal rules that a territory which was previously under the administration of one State actually belongs to another (eg Cameroon v. Nigeria or Temple of Preah Vihear), the decision will need to be implemented in domestic law. In general, there has been good compliance with ICJ decisions on territorial/boundary disputes. So, the question is how have these decisions been implemented?Have the losing States passed domestic legislation or have they  just taken the necessary steps for implementation without passing such legislation. In order to have full compliance, the courts of these states will need to consider that the territory in question is no longer within the jurisdiction of their State.

2) I wonder whether there are any international law impediments to the enforcement in national courts of monetary compensation awarded by international tribunals against a State. Read the rest of this entry…

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