Prosecution of Senior Rwandan Government Official in France: More on Immunity

Published on December 24, 2008        Author: 

French authorities have announced this week (see here) that a senior Rwandan official, Rose Kabuye, who is curently detained in France, will be allowed to travel to Rwanda for the Christmas holidays. Rose Kabuye was at the time of her arrest the Chief of Protocol to current Rwandan President Paul Kagame. She is accused (see here), under French Anti-Terrorism laws, of complicity to murder in connection with the killing in 1994 of then Rwandan President Juvenal Habyarimana. It was, of course, that murder which led to the Rwanda Genocide.  She was arrested in November at Frankfurt Airport (Germany) under an arrest warrant issued by French officials. She was subsequently transferred to France. Her arrest has worsened the already bad relations between Rwanda and France. They have also led to a diplomatic row between Rwanda and Germany and Rwanda has expelled the German Ambassador in the country.

Rose Kabuye’s arrest, detention and prosecution raises questions regarding the immunity of foreign officials from criminal prosecution in foreign domestic courts. The particular question at issue in the Kabuye case is: which State officials are entitled to personal immunity? Was it lawful for France to issue an arrest warrant for a senior Rwandan official and was it lawful for German authorities to execute that warrant? Or was (is) Rose Kabuye within that category of officials who are entitled to personal immunity from the jurisdiction of foreign States for so long as they serve in their official position?  Read the rest of this entry…

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Immunity and International Criminal Tribunals

Published on December 20, 2008        Author: 

Earlier this week, the Trial Chamber at International Criminal Tribunal for the Former Yugoslavia (ICTY) hearing the case against Radovan Karadzic issued a decision in which it stated that “According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals [para. 17 of the decision]”. The statement was made in the context of a ruling granting, in part, a request by Karadzic for the disclosure of certain documents by the Prosecutor.  Karadzic alleged that, at a meeting in Belgrade in July 1996, he reached an “immunity agreement” with US diplomat Richard Holbrooke in which he was promised that he would not face prosecution at the Tribunal if he withdrew from public life. He sought any documents in the possession of the Prosecutor concerning the alleged agreement and the meeting at which it was reached. He argued that the Holbrooke offer was attributable to the Tribunal because it was made in consultation with other members of the UN Security Council or believed to be so. The Trial Chamber ruled that the documents sought were not relevant to the preparation of Karadzic’s defence other than being of potential relevance to in the determination of any eventual sentence. It considered “it well establihed  that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law [para. 25].”

Although Karadzic and the Trial Chamber discussed the alleged agreement in terms of immunity, the suggestion being that it related somehow to immunities conferred by international law, it may have been more accurate to refer to it as an amnesty agreement. Afterall, the suggestion in the alleged agreement was not that Karadzic was entitled to immunities which international law ordinarily accords but rather that the tribunal would refrain from prosecuting him.

The Trial Chamber’s view that international law immunities do not apply to prosecution for international crimes before international criminal tribunals is erroneous. Read the rest of this entry…

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60 Years of the Genocide Convention

Published on December 15, 2008        Author: 

Many thanks to Dapo for inviting me to blog here at EJIL: Talk! – hopefully the blog will turn out to be as successful in the blawgosphere as the EJIL is in print. In the next couple of weeks I intend to write on various topics, first about certain issues regarding the the Genocide Convention, which has had its sixtieth anniversary last week, on December 9th.

On any account, the Convention is an extraordinary treaty, a historic pronouncement by states that the practice of exterminating human groups merely on account of their nation, race, religion or ethnicity, is something that can never condoned or resorted to. At the same time, the Convention is in many ways a deeply disappointing instrument.

One, rather obvious item of disappointment would be its record of compliance. How many genocides, exactly, has the Convention on the Prevention and Punishment of the Crime of Genocide actually prevented or punished? In the face of, say, Darfur, it is hard to escape the impression that the Convention has hardly been a success. Some authors have even conducted empirical studies suggesting that the Convention has contributed little or nothing to the actual compliance with the norms that it enshrines (see here, at 1981-1982).

For what it’s worth, I believe that this initial reflex of disappointment should be resisted. Before we ask ourselves whether the Convention does what it was supposed to do, we need to look at what it actually says. And it says very, very little. The definition of the crime of genocide requires the specific intent to (physically or biologically) destroy a national, ethnic, racial, or religious group, this enumeration of protected groups being exhaustive. The narrowness of this definition is such that it excludes the vast majority of acts that most lawyers, and by far the majority of the general public, think of as genocide.

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Filed under: EJIL Analysis, Genocide

EJIL:Talk! welcomes Guest Blogger Marko Milanovic!

Published on December 15, 2008        Author: 

We are pleased to welcome on EJIL:Talk! Marko Milanovic who will be a guest blogger over the coming weeks. Marko obtained his first degree in law from the University of Belgrade, Faculty of Law and his LLM from the University of Michigan. Marko is a prolific young international law scholar and has published two articles in the European Journal of International Law on State Responsibility for Genocide (see here and here). He has also published in the Leiden Journal of International Law, the Human Rights Law Review, the International and Comparative Law Quarterly and the International Review of the Red Cross. He is currently working on a PhD thesis at  the University of Cambridge which will be on the extraterritorial application of human rights treaties. Previously, he served as a Law Clerk to Judge Thomas Buerganthal at the International Court of Justice. He is an Associate at the Belgrade Centre for Human Rights where he has been involved in litigation before the European Court of Human Rights and the Constitutional Court of Serbia.

Some of you might have read some of Marko’s posts over on Opinio Juris where he and I have in the past engaged in vigorous discussion on many issues, before meeting in person at an EJIL Symposium held in Florence in 2007.

We look forward to his contribution to the blog.

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Welcome to EJIL:Talk!

Published on December 12, 2008        Author: 

Some readers might wonder why the European Journal of International Law has decided to launch a blog. An explanation of this would help in identifying the goals of the blog and in setting out what we seek to achieve. This explanation can be viewed by clicking on More about EJIL:Talk! (to the right) but I thought it best to put it in a prominent place on the main page.

EJIL already has a homepage, the autonomous website of the European Journal of International Law. Our website was a pioneer long before publishers such as our current publisher, OUP, moved into digital journal publishing, and it is distinct from all other mainline journals of which we are aware. Not only is a sizeable portion of current content made free to the reader, but all content becomes free one year after publication – the scholarly world’s Napster! I say all this to indicate that we are not parvenus to the notion of digital internet publishing

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g.  the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for aggressively bringing in younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to, and interest in, history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate…). If our new blog EJIL:Talk! is successful, it will continue to reflect those EJIL sensibilities on the internet but enable us to effect a certain mutation in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Our plan is to allow the members of our Scientific Advisory Board to host the blog on a rotating basis, with Dapo Akande  serving as our inaugural guest editor.

Please help make EJIL:Talk! a successful blog and, indirectly, EJIL an even more successful Journal.

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The Application of Human Rights Treaties in Wartime

Published on December 12, 2008        Author: 

This year the EJIL has been marking the 60th anniversary of the Universal Declaration of Human Rights by publishing a series of articles on international human rights law. The international human rights movement was birthed in response to the atrocities during the second World War. It is therefore appropriate to examine the extent to which international human rights law, and international human rights treaties in particular, apply in time of armed conflict.

There are a number of key, overlapping, questions which need to be answered in considering the application of international human rights treaties in time of armed conflict.

  • What are the advantages of relying on human rights treaties in the context of armed conflicts?
  • Do human rights treaty obligations continue to apply in time of armed conflict?
  • To what extent do human rights treaties apply extraterritorially?
  • If human rights treaties apply, what is their relationship with international humanitarian law?

I discuss the first two questions below and will discuss the last two in a further post

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Letters to the Editor: Respond to EJIL Editorials (Vol. 19:4)

Published on December 9, 2008        Author: 

Editorial: Marking the Anniversary of the Universal Declaration; The Irish No and the Lisbon Treaty

Marking the Anniversary of the Universal Declaration

The interest of EJIL in, and its commitment to, the study, research and reflection on the place of fundamental human rights in the international legal system is an ontological facet of EJIL‘s identity. This is not surprising given the biography and/or bibliography of its founding editors as well as, of course, that of my long-serving predecessor as Editor-in-Chief, Philip Alston. It is, thus, equally unsurprising that there has hardly been a year in which at least one or two pieces on human rights have not appeared in our pages. This engagement is carried through by the new members of our Editorial Board and Scientific Advisory Board.

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Human Rights, International Economic Law and ‘Constitutional Justice’: a Reply by Robert Howse to Ernst-Ulrich Petersmann’s Article in EJIL Vol 19:4

Published on December 9, 2008        Author: 

In issue 4 of our year marking the anniversary of the UDHR, we published an article by Ernst-Ulrich Petersmann on “Human Rights, International Economic Law and ‘Constitutional Justice“. We continue the discussion by publishing a reply and a rejoinder to this piece. We invite our readers to comment.

Herein find a reply by Robert Howse to Ernst-Ulrich Petersmann:

Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics.1 New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying international law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.2

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  1. Teitel, ‘Humanity’s Law’, 35 Cornell Int’l LJ (2002) 355. []
  2. Ibid. []
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Human Rights, International Economic Law and ‘Constitutional Justice’: A Rejoinder by Ernst-Ulrich Petersmann

Published on December 9, 2008        Author: 

In this post Ernst-Ulrich Petersmann issues a rejoinder to Robert Howse’s comments [above] on Prof. Petersmann’s article.

All academics learn from discussion and criticism of their published views. Hence, I congratulated the EJIL editors, Alston in 2002 and Weiler in 2008, when they invited a response to my articles in EJIL. Following the insulting EJIL comments by Alston in 2002, this is the second time in my 37 years of academic teaching that a ‘commentator’ has imputed to me intoxicating views which I never expressed. Six years after the confabulations by Alston and Howse,1 Howse remains committed to misrepresenting rather than discussing my legal arguments. Clarifying, in fewer than 2,500 words, the reasons for this ‘Alice in Wonderland non-discussion’ would have been more enlightening if my Australian and Canadian commentators had respected correct academic citation before publicly putting forth their aggressive legal phantasms. Here I want to suggest ways in which such an exchange may be more constructive.

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  1. Petersmann, ‘Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston’, 13 EJIL (2002) 845. []