Home Archive for category "State Responsibility" (Page 8)

Australian Government Settles Habib Claim arising out of Rendition and Torture and Orders Inquiry

Published on January 18, 2011        Author: 

Ben Batros is Legal Officer at the Open Society Justice Initiative and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice.

It was reported late last week that the Australian government has settled a claim brought against it by one of its citizens, Mahmoud Habib, arising out of his detention, rendition and torture by US and other foreign authorities (link).  The government will not disclose how much it paid Mr. Habib. Over a three-and-a-half year period, Mr. Habib had been detained by Pakistani authorities, then transferred by the US to Egypt, to a military base in Afghanistan, and finally on to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  Mr Habib alleges that he suffered a range of mistreatments amounting to torture and inhumane treatment.  Instead of suing the foreign agents directly responsible for the alleged abuses or pursuing a criminal prosecution, Mr. Habib brought a civil action against the Australian government for the acts of Australian officials who he claims knew of and aided in his mistreatment.  On 25 February 2010, the Full Court of the Australian Federal Court ruled that Mr. Habib’s claim could proceed, as it was not barred by the act of state doctrine (see our previous post and article on the case and that ruling)

The Australian’s government’s settlement of the case follows the British government’s decision to settle similar cases brought by 16 British citizens or residents claiming that MI5 and MI6 had colluded with the CIA in their rendition and detention at Guantanamo Bay (links here, here and here).  It’s tempting in a case like this to assume that the case was settled because the government recognised that the allegations were true, and because it did not want damaging facts to be proven in Court regarding the conduct of its officials.  And that may well be the case – before the ink was dry on the settlement deal, the Australian Prime Minister requested the  Inspector-General of Intelligence and Security to open an inquiry into the Habib case (link) in the light of witness statements that Australian authorities knew of Mr. Habib’s rendition to Egypt and were even present during interrogations there. This new evidence apparently precipitated the settlement deal (link). Read the rest of this entry…

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Habib v Commonwealth of Australia: A Twist on Actions Against State Officials for Torture

Published on March 4, 2010        Author: 

 Ben Batros is Appeals Counsel at the International Criminal Court and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb, is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice

Last week (on 25 February), the Australian Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] FCAFC 12).  In some respects, this case is part of several emerging trends relating to immunities and human rights. First, it concerns allegations of torture by foreign State officials, including in Guantanamo Bay (see previous EJIL:Talk! posts here and here)   and  Second, it involves an alleged victim claiming damages against a Government, which resonates with the practice in US courts under the Alien Torts Claims Act and the Torture Victim Protection Act (including the Samantar case being heard by the US Supreme Court this week – see post by Julian Ku over on Opinio Juris). Third, a Government has asked the court to throw out the case, arguing that the courts of one country cannot sit in judgment on the acts of the government of another – echoes of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi Arabia in the UK House of Lords, and the pending Germany v. Italy case at the ICJ.

But even though Mr Habib’s claim lies at the intersection of these trends, it does not follow the “typical” model of a civil claim against the agents directly responsible for the alleged abuses; nor does it pursue a criminal prosecution, where questions of immunity have recently formed a less imposing barrier.  Rather, Mr Habib’s lawyers appear to have considered the experience of similar claims abroad, and to have crafted a case which takes into account both the particular opportunities and obstacles presented by Australia’s legislative regime. As a result, the heart of dispute is the scope of the act of state doctrine, not the applicability of state immunity.

Mr. Habib, an Australian citizen, was detained by Pakistani authorities in early October 2001, and transferred to Egypt in November 2001, to Bagram airbase in Afghanistan in April or May 2002, and then to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  During these periods, Mr Habib alleged a range of mistreatments amounting to torture and inhumane treatment which Australian federal criminal law criminalises with extraterritorial (and in most cases universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision).  The Criminal Code also makes it an offence to aid, abet or counsel the commission of a crime.  Mr Habib’s allegations included that Australian police, intelligence and diplomatic officials had visited him during his detention (which was not disputed), been present during questioning, and may even have provided information used in the interrogation (paras. 17-18, 66-67), and the facts if proved might thus found criminal cases against both the foreign agents who conducted the interrogations and the Australian officials who assisted them.

To circumvent certain procedural requirements for prosecution of these particular crimes, Mr Habib’s lawyers brought a civil action.  However, with the exception of claims under the Alien Torts Claims Act in the US, civil claims for alleged torture at the hands of foreign state officials have previously been held to be barred by state immunity (notably in the UK in Jones v Saudi Arabia), as Mr Habib’s counsel expressly conceded.  So Mr Habib sued the Australian Government for the torts of misfeasance in public office and of intentional infliction of indirect harm by its officials when they aided and abetted his alleged torture. Read the rest of this entry…

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Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia

Published on December 8, 2009        Author: 

Dr Tarcisio Gazzini is Associate Professor at the VU University Amsterdam. He has previously taught at the Universities of Padova (Italy) and Glasgow (UK_. He is an alternate member of the ILA Committee on Non-State actors and a member of the editorial board of the Leiden Journal of International Law. His publications include The Changing Rules on the Use of Force in International Law, Manchester University Press (2005).   

The recently published Report of the EU’s Independent Fact-Finding mission on the conflict(s) in Georgia can be considered in many respects as a successful experiment and a significant contribution to the establishment of the causes of the conflict(s) and the violations of jus ad bellum and of jus in bello.

Although the report offers several elements for reflection to international lawyers, this short comment focuses on the legal status of South Ossetia and Abkhazia which is crucial for the purpose of attributing international responsibility for violations of international law committed by these entities and their forces; qualifying the armed conflicts between Georgia and these entities, and identifying the applicable law, including the rules governing the use of military force and humanitarian law.

Legal Status of South Ossetia and Abkhazia

The question is discussed essentially in the first two sections of Chapter 3. The report seems to accept the view – clearly predominant in State practice and literature – that recognition is not a constitutive element of statehood. (see for eg, the Arbitral Commission of the Peace Conference in Yugoslavia, Opinion No. 1, 31 ILM (1992) 1494, ‘the existence and disappearance of the state is a question of fact’.) As a result, statehood needs to be determined on the basis of factual elements or criteria, although these criteria, according to the report, have not authoritatively been defined yet.

The report continues by listing three ‘minimal pre-conditions’ for statehood: (1) defined territory; (2) permanent population and (3) effective government. It then refers to the respect of legal principles of international law, notably self-determination and the prohibition to use force, as ‘additional standards’ for the qualification of an entity as a State (pages 127-8). The reader may have the impression that an entity must satisfy cumulatively ‘minimal pre-conditions’ and ‘additional standards’ before claiming statehood.

The report introduces three categories of entities: (1) (full) states fulfilling the relevant criteria for statehood and universally recognised; (2) state-like entities fulfilling the relevant criteria, but which are not, or not universally, recognised; and (3) entities short of statehood not fulfilling the relevant criteria, or only some of them, or only in a weak form, but eventually recognised by one or more states (page 128). Read the rest of this entry…

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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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Old Law and New Trends – A Rejoinder to Professor Cryer and Hannah Tonkin

Published on January 24, 2009        Author: 

Both Professor Cryer’s post, as well as Hannah Tonkin’s reply to my article (introduced here) raise very interesting issues. I am thankful for their contributions to this discussion and happy to offer my reactions to some of the points they raise. Before reacting to their specific arguments, I believe a note of clarification is in order. As I argue in my article under the heading “Back to the Basics: Responsibility for the Armed Forces”, I do not believe positive obligations are truly our best hope for  plugging the responsibility gap. Rather, I argue that while these obligations are important, establishing state responsibility under the rule contained in Art. 3 Hague IV and Article 91 AP I is the more effective way to go.

Tadic redivivus – Are we using the wrong test?

In my opinion Tadic is not the law with respect to attribution for the purposes of state responsibility, and I do not have much hope this will change any time soon, if we take state practice and opinio iuris, as well as the ICJ’s specific rejection of the test in Bosnia Genocide into account. Of course there is always room for considerations de lege ferenda. I agree, if it were the law, attribution of PMSC conduct to the hiring state would be easier, given that the Tadic bar is lower. In turn, this would reduce the gap in state responsibility of the hiring state for acts of PMSC personnel, as compared to the responsibility that such state would incur for acts of its national soldiers. Read the rest of this entry…

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Response to Carsten Hoppe: Some other Possible State Responsibility Issues

Published on January 21, 2009        Author: 

Editors note: Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007). We are pleased to welcome him to EJIL:Talk!

I am very flattered to have been asked to comment on EJIL Talk. It is also very pleasant to be able to do so in relation to a piece that I genuinely like and, given the increasing privatised nature of many actions that were previously considered truly jure imperii, deals with a question of unquestionable importance.


I would primarily like to see what State responsibility can do here. I think Carsten Hoppe raises the right issues, the positive duties of States under human rights law and IHL are hugely important here, but I would like to play devil’s advocate and suggest some alternative views and other ways in which State responsibility might be invoked here. I raise the following not to criticise, but to suggest some additional lines of inquiry. They are, perhaps, somewhat speculative, but, the point of EJIL talk is to initiate debate, so in that spirit, let us enter the fray!


The first is on attributability insofar as it is covered by Article 8. There is, as we all know, a disjunction between the approach taken by the ICJ in Nicaragua and reaffirmed in Bosnian Genocide case, and that taken by the ICTY in Prosecutor v. Tadić as to the level of control that is required for liability to be incurred. The ICJ considers the test to be ‘effective control’, whilst the ICTY considered it to be ‘overall control’ Although the ICJ in Bosnian Genocide case said that maybe for international criminal law the test is different, the ICTY saw itself as applying the general rules on State responsibility. If the ICJ was wrong and the test for attributability in some contexts is ‘overall control’, then there must be some room for arguing that employing States have overall control over PMC’s. Not least, they would have the power to bring the contract to an end. This would ensure iability for the offence itself. I have to say that there is rather a lot to be said for the more functional approach taken by the ICTY (on control, and, for example, nationality) rather than the rather rigid approach that characterises the ICJ’s position on point. Read the rest of this entry…

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A Response to Carsten Hoppe: Minimising the regulatory gap – a flexible interpretation of Article 5 of the ILC Articles

Published on January 19, 2009        Author: 

Editors note: Hannah Tonkin is currently a Law Clerk to President Judge Kirsch in the Appeals Chamber of the International Criminal Court. She is also writing a DPhil at the University of Oxford on States’ International Obligations to Control Private Military and Security Companies.

Carsten Hoppe’s article highlights the regulatory “gap” arising from the application of the traditional rules of attribution to modern private military and security companies (PMSCs) hired by a state in armed conflict or occupation.  According to Hoppe, states that hire PMSC personnel “will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.”  Hoppe points to two main situations in which this accountability gap may arise:

  1. Where the private contractor is “empowered by the law of that state to exercise elements of the governmental authority” within Article 5 of the International Law Commission’s Articles on State Responsibility (ILC Articles), but is not in fact “acting in that capacity in the particular instance” when he/she engages in the relevant conduct; and
  2. Where the contractor does not fall within Article 5 and is not in fact acting under state orders, direction or control sufficient to satisfy Article 8 of the ILC Articles.

Hoppe argues that the second category is particularly pertinent to guarding and protective services, since these activities do not conclusively fall within Article 5.  Certainly, in many cases it will be impossible to establish the requisite degree of state control over these PMSC activities to satisfy Article 8 of the ILC Articles, especially if one applies the stringent threshold of “effective control” established by the ICJ in Nicaragua and reaffirmed in the Genocide case.

Yet before placing all reliance on the hiring state’s positive obligations, we should first consider whether the majority of guarding and protective services might in fact fall within Article 5.

There are three requirements for the attribution of PMSC conduct to the hiring state pursuant to Article 5.  First, the PMSC operation must constitute an exercise of governmental authority.  Second, the PMSC must be “empowered by the law of the state” to exercise that authority.  Third, the contractor must in fact be acting in the exercise of governmental authority, rather than in a purely private capacity, in the particular instance when he/she engages in the conduct.

There is no international consensus as to the precise scope of’ “governmental authority”.  The very concept requires value judgments, which themselves rest on political assumptions about the proper sphere of state activity.  Read the rest of this entry…

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The Buck Stops Here: State Responsibility and PMCs

Published on January 16, 2009        Author: 

Editors note: Carsten Hoppe is on the Project Management team of the Priv-War Project  and Executive Director of the European Society of International Law. He is currently writing a PhD, on the same topic as his article, at the European University Institute. He has a JD from the University of Michigan Law School and has previously clerked for Judge Bruno Simma at the International Court of Justice. His article “Passing the Buck: State Responsibility for Private Military Companies”, (2008 )19 EJIL 989 -1014 is available  here.

What makes the video below from the Iraq war more disturbing than the countless others we have seen?

First off, Elvis Presley. The scenes of bullets flying into civilian vehicles are cut to a trivializing soundtrack of “Mystery Train” by the King of Rock ’n Roll. But what may be even more disturbing is that the video does not show a single soldier. Rather, it is attributed to a UK Private Military Company under contract with the United States, an employee of which claims to have shot the video.  Granted, it will be very difficult to assess who is ultimately responsible for the shootings. But this problem is not the end, but rather the beginning of my inquiry. How can it be that private company employees get to drive around in a war zone with assault rifles and machine guns, clearing the road of suspected attackers in approaching vehicles? Is it true that states hiring these Private Military or Security firms [PMSCs / contractors] can outsource their international responsibility by way of a simple contract?

Of course, at present, states are free under international law to outsource functions in armed conflict, such as guarding and protection, interrogation, or even combat, which formerly were in the exclusive domain of soldiers. However, the article and my broader work on PMSCs for the Priv-War Project and my dissertation demonstrate that, while they may spend the money, they are not free to “pass the buck” with respect to responsibility. Thus the most important conclusion of my piece is that where contractors function as armed groups and are responsible to the party through their obligations under a contract, responsibility for all their acts, as first envisaged by states in 1907, will lie for the hiring state.

To get to this point, I first compare responsibility of a state for a classical soldier to all the options for attribution of private conduct. In this analysis, a responsibility gap becomes evident: unless a state outright incorporates the contracted personnel into its armed forces, or the contractors can be regarded as completely dependent on the state (a tough burden of proof to meet), the state will always face less responsibility for acts of those persons than for acts of soldiers, and its responsibility will be harder to prove.

In a further step, I show that positive obligations of the state under IHL narrow this gap to some degree. Read the rest of this entry…

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