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Home International Organisations Archive for category "Security Council" (Page 11)

ICC Reports Kenya and Chad to the UN Security Council over Bashir’s Visits

Published on August 28, 2010        Author: 

Sudanese President Omar Bashir visited Kenya yesterday to take part in the celebration of the new Kenyan Constitution. As readers will know, the International Criminal Court (ICC) has issued two arrest warrants for President Bashir in connnection with charges of war crimes, crimes against humanity and genocide. President Bashir’s visit to Kenya is his second visit to an ICC State party. Last month Bashir visited Chad which is also a party to the ICC Statute. Both Kenya and Chad invited Bashir and both refused to comply with the ICC arrest warrants which request State parties to arrest and surrender Bashir. ICC Pre Trial Chamber I, which issued the arrest warrants, issued decisions (see here and here)  yesterday informing the United Nations Security Council and the ICC Assembly of State Parties of the visits by Bashir “in order for them to take any measure they may deem appropriate”. In the ICC decision regarding Kenya, the Chamber stated that:

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate – with the word “clear” being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post). Read the rest of this entry…

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UK’s Iraq Inquiry Invites Submissions on Legal Arguments Used by UK to Justify the War

Published on June 7, 2010        Author: 

As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:

The legal basis for the military intervention in Iraq has been the subject of much comment.  The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser.  Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/.  In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.

The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC.  In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.

The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

  • the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
  • the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
  • whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
  • the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
  • the correct approach to the interpretation of Security Council Resolutions;
  • Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Read the rest of this entry…

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The UK Supreme Court Quashes Domestic Measures Implementing UN Sanctions

Published on February 23, 2010        Author: 

Last year, I posted on this blog analyses of domestic cases touching upon UN sanctions, in particular with respect to the 1267 sanctions regime (concerning Al Qaeda and Taliban individuals). My comments on the Abdelrazik case (in the Canadian Federal Courts) can be found here (and in expanded version in the Journal of International Criminal Justice here) and on the Hay case (in the English courts) here. The current post, briefly, draws the attention of our readers to the recent decision of the UK Supreme Court in A, K, M, Q & G v HM Treasury and in Hay v HM Treasury. A more extensive consideration of the Supreme Court’s decision will follow—watch this space.

I. Partial Confirmation of Hay

In its decision, HM Treasury v Mohammed Jabar Ahmed and ors (FC); HM Treasury v Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2, the UK Supreme Court largely confirms the High Court’s approach in Hay, and quashes in part the UK’s ‘Al Qaida Order’ (‘AQO’) because it removes the right of access to an effective remedy (see paras 81-82). The AQO is the implementing measure adopted by the UK Executive to give effect to 1267 sanctions. It is subject to the UN Act 1946, which the Court found not to allow the Executive to remove individual rights. The Court also reverses the decision of the Court of Appeal in A, K, M, Q & G, quashing in part the ‘Terrorism Order’, adopted to implement the 1373 regime. The Law Lords clearly distinguished between the two sanctions regimes, one imposing ‘strict’ obligations, and the other allowing for a margin of appreciation (see paras 64, 148, 196 seq and cf the CFI in OMPI at paras 100-102). What is particularly important in the Supreme Court’s decision is that most of the Law Lords fully accept that the domestic implementing measure of the 1267 regime, the AQO, is strictly conditioned by the relevant Security Council Resolutions. The Court clearly finds that subjecting implementation measures to parliamentary scrutiny could lead to the UK breaching its international obligations under the Charter if the implementing measure was defeated in Parliament (paras 47-49). Lord Brown, dissenting, implies that the Court, in quashing the AQO, would force the UK to flagrantly violate the UN Charter (para 204).

Read the rest of this entry…

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Denmark Invites Sudanese President Bashir to Climate Change Conference

Published on November 19, 2009        Author: 

As readers will probably know, there will be a United Nations Conference on Climate Change to be held in Copenhagen, Denmark in December (see conference website here). Participation in the conference is open to parties to the United Nations Framework Convention on Climate Change as well as Observer States, organizations within the United Nations System and observer organizations admitted by the Conference of the Parties. A Danish newspaper has recently reported (see here) that Sudanese President Bashir has been invited to attend the conference:

[Danish Prime Minister] Lars Løkke Rasmussen has invited world leaders to [the] climate meeting, including one subject to an ICC arrest warrant.  . . . World leaders from 191 countries received the official invitation from Prime Minister Lars Løkke Rasmussen yesterday to attend the UN Climate Change Conference in Copenhagen (COP15) this December.

. . . one of those invited is Sudanese president Omar al-Bashir, who is currently subject to an arrest warrant issued by the International Criminal Court for crimes against humanity.

Thomas Winkler, head of the Foreign Ministry’s legal department, said that as the climate conference is a UN event, Denmark is obliged to invite all heads of government without exception.

‘But at the same time we would point out that Denmark is also obliged to comply with the Security Council’s resolution regarding Darfur,’ Winkler said to Berlingske.dk.

The security council resolution states that Sudan, like all countries, must cooperate with the International Criminal Court, and Denmark would be obliged to honour the ICC arrest warrant should al-Bashir arrive in the country.

The issue of President Bashir’s immunity has been discussed extensively on this blog (see here, herehere, here, and here). I have argued on the blog and in the Journal of International Criminal Justice that the effect of the Security Council referral of the Darfur situation to the ICC is that Sudan is to be treated as if it were a party to the ICC Statute and is thus bound by Article 27 of the ICC Statute which removes immunity.

However, I am not sure that the Danish Legal Adviser is right that Denmark would be bound to honour the ICC Arrest Warrant. The reason for this is Article IV, Section II of the Convention on the Privileges and Immunities of the United Nations (1946), which provides:

“SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention  . . .”

It seems to me that there is good argument to be made that this obligation prevails over any other inconsistent obligation as a result of Article 103 of the UN Charter. Although the UN Immunities Convention is a treaty, it is a treaty that elaborates on Article 105 of the UN Charter. That article provides that:

“(2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

(3) The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”

In short, the obligation to accord immunity is a Charter obligation. As such it would prevail over any inconsistent obligations. Even if the Security Council were to explicitly provide that Bashir should be arrested at the conference, that would be contrary to the Charter.

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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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Three Cheers for the Application of International Law by Domestic Courts! Or should that be two? A response to Benvenisti & Downs.

Published on July 13, 2009        Author: 

Last month, Professors Eyal Benvenisti and George Downs posted a summary of their latest EJIL article – “National Courts, Domestic Democracy and the Evolution of International Law”  – which set out the issues discussed in that article (available here) in the context of the authors’ scholarship in this area. The article impressively surveys trends regarding the extent to which domestic courts will defer to the executive branch in the area of foreign affairs. It also considers what the authors see as growing inter-judicial cooperation which enhances the increasing boldness of courts not only with regard to their executives but also in reviewing the policies of international organizations. The article argues that unlike the position nearly two decades ago, domestic courts are increasingly abandoning their traditional deference to the executive when dealing with questions of foreign affairs. The evidence for this assertion is not set out in this article but is considered elsewhere by Professor Benvenisti. The comments by Alison MacDonald here on this blog support this assertion, at least as far as English courts are concerned. Benvenisti and Downs find the reasons for this change of judicial attitude in changes in assumptions which had previously underpinned the idea that foreign policy ought to be the preserve of the executive. The assumptions which are now being undermined are said to be that: (i) the boundary between domestic and foreign affairs was well defined with both being distinct; (ii) the executive was best placed to protect the domestic interest in international affairs and (iii) international interaction should be as free of legal restraints as possible. The changes in these assumptions seem to be persuasive in explaining a change on the part of domestic courts with regard to judicial intervention in foreign affairs. Even if the change of assumptions did not precede a change in attitude, increased judicial intervention would not be consistent with these assumptions. Benvenisti &Downs’ (B&D) arguments regarding the changes in the relationship between national courts and domestic executives and the use of international law by national courts to restrain their executives are plausible but are not always compelling, nor do they always follow logically from the evidence.

Judicial Oversight of Foreign Policy and Judicial Embrace of International Law do not always go together

One of the themes which underlines the article seems to be an assumption that a move away from deference to the executive in foreign affairs will usually be a move towards engagement with international law and vice versa. This point can be seen in the opening sentence of the abstract of the article: “National courts are gradually  abandoning their traditional policy of deference to their executive branches in the field of foreign policy and beginning more aggressively to engage in the interpretation of international law.” However, the two do not necessarily go together and have not always gone together in domestic judicial practice. Read the rest of this entry…

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Is Sudanese President Bashir Immune from Arrest?

Published on July 11, 2009        Author: 

In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here).  The  abstract of my article is as follows:

This article considers whether states are obliged or permittedto arrest Sudanese President Omar al Bashir pursuant to a warrantof arrest issued by the International Criminal Court (ICC).The article considers the extent to which the ICC Statute removesimmunities which would ordinarily be available to state officials.It is argued that the removal of the immunity by Article 27of the ICC Statute applies also at the national level, whennational authorities act in support of the ICC. The articleexamines the application of Article 98 of the ICC Statute andconsiders the legal nature of Security Council referrals tothe ICC. It is argued that the effect of the Security Councilreferral is that Sudan is to be regarded as bound by the ICCStatute and thus by Article 27. Given that the Statute operatesin this case not as a treaty but by virtue of being a SecurityCouncil resolution, the removal of immunity operates even withregard to non-parties. However, since any (implicit) removalof immunity by the Security Council would conflict with customaryinternational law and treaty rules according immunity to a servinghead of state, the article considers the application of Article103 of the United Nations (UN) Charter in this case.

In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member,  Professor Gaeta (Universities of Florence and Geneva) which takes a different view. Read the rest of this entry…

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A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi

Published on July 7, 2009        Author: 

Devika Hovell is a DPhil Candidate in international law at the University of Oxford, and Associate Fellow  at Chatham House. She worked formerly as Director of the International Law Project and Lecturer in International Law at the University of New South Wales. Her doctoral thesis applies a procedural fairness framework to Security Council  decision-making on sanctions.

Recent developments following the decision of the European Court of Justice in Kadi indicate that the decision may require a more holistic response to due process by the Security Council than has been contemplated to date. The 11 June 2009 decision of the Court of First Instance in Othman v Council of the European Union, the European Commission’s proposal on 22 April 2009 to enact a regulation enabling it to second-guess Security Council sanctions listings and Mr Kadi’s initiation of new proceedings in the Court of First Instance on 26 February 2009 all provide potential new challenges to the ability of EU member states to comply with the Security Council sanctions regime. The leak sprung in the sanctions regime with the ECJ’s decision in Kadi threatens to assume a more sieve-like quality as more and more designations risk being overridden at the regional or domestic level on due process grounds. As the repercussions of the Kadi decision become increasingly pervasive, there is a sense that even the tectonic Permanent Five may be starting to shift on the issue.

Read the rest of this entry…

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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.

Read the rest of this entry…

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