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Home Archive for category "Universal Jurisdiction" (Page 2)

From Targeted Sanctions to Targeted Settlements: International Law-Making Through Effective Means

Published on July 22, 2014        Author: 

2014.08.06.Marijanew pictureMarija Đorđeska, LL.M., is a Thomas Buergenthal Scholar and an S.J.D. Candidate at the George Washington University Law School, in Washington D.C.

The U.S. Office of Foreign Assets Control of the Department of Treasury (OFAC) has again shocked the international financial community with a recent settlement with BNP Paribas, France’s largest financial institution. BNP Paribas was accused of violating U.S. sanctions against Iran, Sudan, Burma and Cuba from 2005 to 2012. For $8.9 billion in compensation – the priciest settlement to date – OFAC pardoned BNP Paribas and its subsidiaries from their civil liability under U.S. law. (Settlement Agreement [30], see also Enforcement Information for June 30, 2014).

OFAC is aggressively and effectively applying U.S. sanctions law to foreign institutions incorporated and doing business abroad, without taking into consideration foreign domestic legal regimes or international standards. French President François Hollande expressed his disapproval of the penalty imposed on BNP Paribas. The settlement should also cause concern among European and international lawyers, as BNP Paribas is the ninth European financial institution to be sanctioned since 2006 for processing funds for entities subject to U.S. sanctions. By threatening to cut off foreign financial institutions from the U.S. market, OFAC precludes these financial institutions from publicly and transparently arguing their case in legal proceedings (Settlement Agreement [31]). OFAC is establishing a precedent of a new, efficient, and not yet legal method for asserting U.S. laws abroad, bypassing the traditional territoriality principle of jurisdiction.

In the documents that are publicly available, OFAC does not mention any legal grounds on which it claims jurisdiction, leaving it unclear on what basis the U.S. can sanction transactions initiated abroad by foreign entities or the clearing of US dollars outside the U.S. (Factual Statement [34]) or regulate foreign exchange transactions (Settlement Agreement [12, 13]). Because the settlement negotiations were not made public, and BNP Paribas also waived its right to “any possible legal objection,” (Settlement Agreement [31]) the substantive public debate on the issue is necessarily limited.

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After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Published on October 24, 2012        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

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Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Published on September 19, 2012        Author: 

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

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The African Union, the ICC and Universal Jurisdiction: Some Recent Developments

Published on August 29, 2012        Author: 

Over the last few years, the African Union (AU) Assembly, (composed of Heads of States and Governments), has concerned itself with a number of issues relating to international criminal law (see previous posts by me here, here, and here; and by Max Du Plessis and Chris Gevers here and here). Last month, the AU Assembly held its 19th Summit and continued the trend of making decisions with regard to international criminal justice (see here for the full text of the Assembly decisions). Earlier this week, Max Du Plessis wrote about the decision of the AU Assembly at this summit to postpone consideration of a draft protocol that would amend the Statute of the African Court of Human Rights and Justice to give it jurisdiction to try international crimes. As has now become usual, the AU Assembly, at this latest summit, also adopted decisions on the International Criminal Court and on the Abuse of the Principle of Universal Jurisdiction. Both of these decisions contain new developments from previous decisions which are analysed below. There is a call for African States to conclude bilateral immunity agreements and the AU has adopted a Model Law on Universal Jurisdiction.

The Impact of the ICC on the Venue of the Summit

The question of where the AU summit would be held was dominated by the fallout of the strained relationship between the AU and the International Criminal Court. The venue of the Summit was changed from Malawi to Addis Ababa, the seat of the AU, just one month before the meeting as the AU refused Malawi’s request for Sudanese President Omar Al Bashir not to be invited to the meeting. Malawi, a party to the Statute of the International Criminal Court, stated that it had an obligation to arrest Bashir, who is wanted by the ICC, were he to visit Malawi. Read the rest of this entry…

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Committing Piracy on Dry Land: Liability for Facilitating Piracy

Published on July 26, 2012        Author: 

An important case before US Courts at present is US v Ali, where the defendant is accused of, among other offences, aiding and abetting piracy by acting as an interpreter. (See the ruling on a preliminary motion here.) The case clearly has implications for other facilitators of piracy, such as financiers and the bosses of pirate gangs.

However, it now appears the presiding judge, US District Judge Ellen Huvelle, has described the aiding and abetting piracy charge as an “outrage” given that US prosecutors can only place the defendant as present on a hijacked vessel – while it was still on the high seas – for less than 30 minutes. (See reports here and here.) The defendant did, however, allegedly spend 69 days on the vessel after its capture in his role as translator and intermediary for ransom negotiations (presumably while it was detained closer to shore).

The case may raise a number of features some would find objectionable (including the fact that US authorities lured the defendant to a “conference” on Somalia in order to arrest him), but this aiding and abetting charge should not be one of them.

At international law, piracy can be committed on dry land.

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Kiobel: The US steals the headlines in first round of supplemental briefs on universal civil jurisdiction under the Alien Tort Statute

Published on June 26, 2012        Author: 

In an earlier post, I considered the US Supreme Court’s re-argument order in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The order concerned whether US federal courts may rely on the Alien Tort Statute (“ATS”) to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?

Earlier this month, the petitioners, a group of 12 Nigerian victims of crimes against humanity, filed their supplemental opening brief on this issue. Nine amicus briefs in support of the petitioners and four amicus briefs in support of neither party were also filed with the US Supreme Court.

In this post, I discuss the amicus brief filed by the US government. The US brief raises a number of interesting issues, in particular the extent to which theUS government has changed its position in respect of the permissibility and limits of universal civil jurisdiction under the ATS, particularly in comparison with US briefs submitted in earlier ATS cases, as well as the failure of the State Department to sign the brief. After considering these issues, I offer a critique of the US brief, focusing in particular on the failure of theUS to substantiate its assertion that universal civil jurisdiction does not violate international law. I conclude by analysing the submissions put forward in other supplemental briefs in support of this assertion.

The US Supplemental Brief – A Change of Position?

The headline development from this round of filings is undoubtedly the new position set out by the US government in its supplemental brief. Contrary to its earlier support of the petitioners, the US now argues that the Supreme Court should not allow the human rights claims in Kiobel to proceed. Read the rest of this entry…

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The Application of Universal Jurisdiction in South African Law

Published on April 24, 2012        Author: 

Christopher Gevers is a Lecturer in the School of Law, University of KwaZulu-Natal, South Africa. He is author of the War and Law Blog.

One of the contentious issues that arises in debates about universal jurisdiction is whether international law allows for what has been called “universal jurisdiction in absentia”. The question is whether a State may initiate criminal proceedings, for international crimes, against persons who are not present within the territory of the prosecuting State? Usually, the initiation of the proceedings is followed by the issuance of an international arrest warrant or a request for extradition. In 2002, the judges of the International Court of Justice split on the question of universal jurisdiction in absentia in the Arrest Warrant Case. [See Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, (2004) 2 Journal of International Criminal Justice 735]. In March, precisely ten years after the Arrest Warrant case, a South African Court heard a landmark case on the domestic prosecution of international crimes which raises the issue of whether domestic proceedings may be initiated under the principle of universal jurisdiction with regard to persons outside South Africa. The case was brought to court by the Southern Africa Litigation Centre (SALC) following unsuccessful attempts to persuade the South Africa’s National Prosecuting Authority (NPA) to investigate and prosecute, in South Africa, 17 Zimbabwean suspects for torture as a crime against humanity. The torture was allegedly committed in connection with a raid on opposition headquarters in Zimbabwe in March 2007.

Background

In June 2009, over a year after receiving a complaint from the SALC, the South African Police Service (SAPS) and South Africa’s National Prosecuting Authority (NPA) decided not to investigate the matter. The reasons given for the decision, included issues regarding the sufficiency of the evidence, ostensible problems in obtaining further evidence from Zimbabwe, concerns over whether South Africa’s authorities had jurisdiction in respect of the investigation, and the fear of undermining Zimbabwe’s sovereingty.

In December 2009, SALC launched a legal challenge asking the Court to set aside the decision not to open an investigation and to order that the matter be remitted to the authorities for them to reconsider the decision. Read the rest of this entry…

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Briefly Noted: New Report on Somali Piracy

Published on January 12, 2012        Author: 

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

  • the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
  • indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
  • the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
  • the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
  • the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
  • the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
  • the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
  • also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
  • finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

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Kenya Invades Somalia Invoking the Right of Self-Defence

Published on October 18, 2011        Author: 

Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.

At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.

At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.

Some Problems with the Kenyan Invocation of the Right to Self-Defence

According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.

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Prosecuting pirates in national courts: US v Said and piracy under US law

Published on August 23, 2010        Author: 

On August 17, a US District Court handed down a fascinating piece of statutory interpretation that apparently means that unless a Somali pirate succeeds in stealing something, he cannot be charged with piracy under US law.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.” Read the rest of this entry…

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