THE CORE

We've moved

2008-01-25T01:31:00.000+01:00

I am happy to report that our blogging hiatus is finally over.

However, we won't be updating this site anymore - Tobias, Nicki and I are now part of the new team of the Invisible College.

We hope to see you there.

The ICJ Tackles the Bosnian Genocide: Part 1a: Some More Thoughts on Jurisdiction

2007-06-23T18:44:00.000+02:00

Yes, I know I have already written a fair bit about the jurisdiction-related aspects of the Genocide case, but recent research, and a few ideas resulting from that, leads me to add a few short comments on the notion of res judicata applied by the Court (the judgment is now here, the Court’s website having been much improved since my original post).

It will be recalled that the Court treated the 1996 judgment as deciding not only that the Court had jurisdiction under Article 36 of the Statute, but also that the parties had a right of access to the Court under Article 35 of the Statute.
This may seem unremarkable – or at any rate, not nearly as remarkable as some other aspects of the 2007 decision on jurisdiction. After all, the parties’ right of access to the Court is of the first importance: where there is no access, there can be no jurisdiction stricto sensu. The latter question would not even arise. It is therefore hardly beyond the bounds of reason to say that a finding of jurisdiction in the sense of Article 36 implicitly makes a finding on access within the meaning of Article 35 (and Article 34(1), as well).

The truly exceptional holding in the jurisdiction part of the merits judgment is that the doctrine of res judicata can apply even to such an implicit finding, as opposed to one that the Court has clearly expressed and for which it has given reasons.
It is this part of the judgment on jurisdiction that has come in for very serious criticism, not least from the dissenters within the Court itself (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma, passim). Also, one of my lecturers at the University of Edinburgh has commented on the whole merits judgment only by saying that on the issue of res judicata, ‘the Court has got it badly wrong.’
For what it’s worth, I have already argued that the Court’s conception of res judicata may not be as wrong as it might seem. I acknowledge, however, that this conception is a novel one, and rather goes against one of the central tenets of the doctrine, as it had been understood until now, namely the element by which res judicata effect would attach only to the actual content of a judgment (see the Joint Dissenting Opinion, supra, paras. 3-4, and also the Opinion of Advocate-General Léger in Köbler v. Republic of Austria (ECJ), para. 101).

I now derive some support for my – still somewhat cautious – propositions from the common law, which suggests that the finality of a judgment may not actually be limited to what the judgment clearly says. This in turn would suggest that the dissenters in the ICJ were wrong to paint their supposed limitation of res judicata effect as a general principle, and conversely, that the majority of the Court did not so much extend the concept of res judicata, but only applied a broader notion that had existed previously.

In English law, the leading case on the finality of judgments is Henderson v. Henderson (1843) 3 Hare 100, in which Sir James Wigram V-C said at pp. 114-115 (the case is not online, but the quote appears at para. 55 of Aldi Stores Ltd. v. WSP Group Plc and Others [2007] EWHC 55 (TCC):

‘In trying this question, I believe that I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ (My emphasis)

A much later court said this about the case: ‘The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well-known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first instance but failed to raise.’ (Barrow v. Bankside Agency Ltd. [1996] 1 WLR 257, 260 [CA, per Sir Thomas Bingham MR])
The rule is therefore ‘not concerned with cases where a court has decided the matter; but rather cases where the court has not decided the matter, but where in a (usually late) succeeding action someone wants to bring a claim which should have been brought, if at all, in earlier concluded proceedings.’ (Manson v. Vooght [1999] BPIR 376, 387 [CA, per May LJ])

The same principles are recognised in the legal orders of the Republic of Ireland (Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345; Carroll v. Ryan [2003] IESC 1, [2003] 1 IR 309; A (A) v. The Medical Council [2003] IESC 70, [2003] 4 IR 302, 315-317; Law Society of Ireland v. Malocco [2005] IESC 5; Mitchell v. Ireland [2007] IESC 11) and of Scotland (British Airways Plc v. Employment Appeal Tribunal [2001] IRLR 157, paras. 4-8; Clarke v. Fennoscandia Ltd. 2005 SCLR 322, para. 40).

To be sure, the rule in Henderson v. Henderson is now accepted as relating not to res judicata in the strict sense of the word, but to express a separate rule of abuse of process: a party to case A would, in seeking in a case B to relitigate case A or to litigate anew arguments which he could have brought forward in case A, abuse the process of the court in case B, and case B would therefore be dismissed. (See Johnson v. Gore Wood [2002] 2 AC 1, 31 [HL, per Lord Bingham of Cornhill]; Barrow, supra, ibid.; Manson, supra, ibid.; Bradford and Bingley Building Society v. Seddon [1999] 1 WLR 1482, 1490 [CA, per Auld LJ])
However, nothing turns on the description of the rule as either an ‘extended application of the res judicata doctrine’ (C (A Minor) v. Hackney London Borough Council [1996] 1 WLR 789, 796 [CA, per Simon Brown LJ]) or as something else; indeed, the Supreme Court of Ireland, in A (A), supra, at p. 315, describes the discussion on this as merely a matter of ‘taxonomy’. As for the material content of the rule, the House of Lords has explained as follows:
‘But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from [res judicata], has much in common with [it]. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Johnson v. Gore Wood, supra, ibid.)
In speaking of the ‘finality in litigation’, the House cannot have meant the finality of actual judicial findings, because in Henderson v. Henderson cases, there are no such findings. It must therefore refer to the finality of the earlier case in the sense that the first hearing on a general question (e.g. liability, or jurisdiction) should also be the only, and hence the last, or final, one.

It may be argued that the same reasoning is appropriate in the procedural law of the ICJ. Certainly, it is an abuse of (the Latin) language to describe a matter that has not been adjudicated upon as a res judicata (an adjudicated matter). But the rule in Henderson v. Henderson, whatever its present description at common law, is also based on the fundamental interest of the law in the finality of judgments, and it should be recalled that it is this finality that Article 60 of the ICJ’s Statute enshrines, not the doctrine of res judicata in those terms (which are only in this context more specific than the ‘finality’ formulation).
This is not to say that the ICJ has adopted the rule of Henderson v. Henderson in the Genocide case; there is no indication that the ICJ has left the domain of the doctrine of res judicata and entered the field of some form of ‘abuse of process’ jurisdiction (for which there are only a few hints in ICJ case-law). Instead, the Court has failed to make any argument at all as to why the doctrine of res judicata should now extend to implicit holdings; the reasoning that the Court did deploy was exclusively directed at the anterior question whether there had been any implicit holding on the issue of access in the 1996 judgment.
Of course, that question would not strictly have arisen on the Henderson v. Henderson approach, which expressly applies to questions that were not decided. Nonetheless, Henderson v. Henderson requires an exercise not dissimilar to that conducted by the Court, to find whether the issue sought to be presented was one that, while not addressed squarely in the earlier case, ‘properly belonged to the subject of litigation’ of that case (to borrow a phrase from Henderson v. Henderson). For instance, in the Genocide case, the issue of access would not have ‘properly belonged to the subject of litigation’ if the jurisdiction stage had not encompassed also the issue under Article 35 of the Statute.
What I do seek to argue first and foremost is that the rule in Henderson v. Henderson shows that the reasons behind the doctrine of res judicata are capable of supporting an application of res judicata concepts outside the confines of the express holding of the earlier judgment. This being so, and the fact being recognised in several common law jurisdictions, it may be permissible to extend the concept of res judicata itself, as it applies in international procedural law. Indeed, the suggestion that the doctrine of res judicata generally and in every legal order applies only to actually decided matters appears to be correct, as regards the common law, only as a matter of legal language; after all, the rule in Henderson v. Henderson practically extends the concept of res judicata, while using another name for it (that of ‘abuse of process’).

The application of such an extended concept of res judicata (under whatever name) may, however, be somewhat more difficult than that of the bare concept of res judicata as applicable to matters that have actually been argued and decided.
This is because the approach exemplified by Henderson v. Henderson does not merely prevent the re-litigation of issues that have been presented and decided before. It prevents the first litigation of issues that only could have been presented earlier, and have never been decided. (Johnson v. Gore Wood, supra, at p. 59 [per Lord Millett]) An overly zealous application of the rule is therefore liable to exclude a ‘genuine subject of litigation.’ (ibid., quoting Brisbane City Council v. Attorney-General for Queensland [1979] AC 411, 425 [PC, per Lord Wilberforce])
That is why the test of the rule in Henderson v. Henderson in English law, is not merely whether the issue presented could have been argued in the earlier case (i.e. whether it ‘properly belonged to the subject of litigation’ of that case), but whether it ‘could and should’ have been (Divine-Bortey v. Brent London Borough Council [1998] ICR 886, 888 [CA, per Simon Brown LJ]; Manson, supra, at 388; my emphasis). There are many judicial illustrations of this, but there are no hard and fast rules. The judge faced with the second case is to form a ‘broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.’ (Johnson v. Gore Wood, supra, at 31) This may, but need not mean that ‘[t]he bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (…) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’ (Ibid.)
This ‘should’ part of the test would not be easy to apply in the Genocide case. The Federal Republic of Yugoslavia (as the respondent was then called) chose in 1996 not to plead the issue of its own access to the Court because its political position, expressed in many fora, was that it remained a member of the United Nations as the continuation of the old Yugoslavia (the SFRY). Requesting the Court to dismiss the case under Article 35 of the Statute would have been to abandon that argument. Based on what we know today, it would have been possible to present the point as a mere question, for resolution by the Court proprio motu, and without taking a firm position on it. But this power in and duty on the Court to examine proprio motu the issue of the parties’ access to the Court was only stated on 15 December 2004, in the Legality of Use of Force cases (see the case against Belgium here, at para. 36). That being so, it is difficult to argue that, in this instance, the sovereign interest of Yugoslavia in maintaining its position on its own identity should take a back seat to the Court’s interest in being able to decide all issues relevant to the jurisdiction stage in one go (i.e. in 1996).
But it is by no means certain that an acceptance of the extension of res judicata effect exemplified by the rule in Henderson v. Henderson would have to include the precise test developed at common law. Indeed, this would almost certainly be going too far, as it cannot seriously be argued that the Court should defer to the authority of English (and Irish and Scottish) judges. A cautious application of the doctrine is possible even without the specific limitations of the formula ‘could and should’. In particular, the interest in the finality of the first judgment, in which the new issue was first relevant, would seem to support the extension of res judicata effect even without any additional elements.
Applied to the Genocide case, this extension would mean that Yugoslavia should have argued the issue of access already in 1996, and having failed to do so must face the consequence of the argument being unavailable to it later. The lesson then is to deploy at the jurisdiction stage everything that has a bearing on jurisdiction.

I, for one, can see no objection to such a course of action. I find it at the very least arguable that the Court’s extension of the concept of res judicata is neither unprincipled, nor even without precedent. It is almost certainly incorrect that res judicata was, before the Court’s judgment was delivered, universally understood as available only in respect of express holdings; the citations I have given to the common law are intended to show that at least one of the main legal systems of the world goes considerably further in maintaining the finality of the judgments of its courts. I find nothing wrong with the ICJ taking a similar line.

Going on hiatus

2007-04-21T20:43:00.000+02:00

As our loyal readers will have noticed, during the last weeks/months, we haven't had the time to blog as often as we would have liked to. It's not that there aren't interesting things to blog about, it's simply that we all don't have the time/energy, what with dissertations to write etc.
As we don't really see that changing for a couple of months at least, we decided to make it an "official" blog hiatus. We might come back for a post or two to finish those "Part 1 of X"-series, but in general, don't expect much news on this blog for the next months. (Unlike, you know, those wild last few months...)

The ICJ Tackles the Bosnian Genocide: Part 1: Jurisdiction

2007-02-27T00:54:00.000+01:00

As the international legal blogosphere has noted elsewhere, the International Court of Justice has today delivered its long-awaited judgment in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro). I now propose to join the ranks of bloggers expressing their opinions on the case. I realise that the case is somewhat beyond the specialisation of this blog, but given the importance of the case, I feel it right to deviate. Readers are, of course, free to disagree…
While the actual subject-matter of the proceedings, and the merits of today’s judgment, deal with questions close to my fellow blogger Björn’s heart, i.e. genocide and thus international criminal law, I will compound my deviation from the general subject-matter of this site by going into the procedural issues dealt with by the Court. This will form Part 1 of my comments on the case, to be followed by Part 2 on the merits.

As I have sought to explain in a lengthy earlier post (without much in the way of prophecy, as it turns out), the Court faced a few problems relating to its jurisdiction to decide the case. These resulted from the difficult position of the former Yugoslavia vis-à-vis the United Nations from 1992 until 2000, and more particularly from the Court’s own prior pronouncements on the question of whether the State had been a member of the UN or not.
Thus, the Court had decided in 1996 that it had jurisdiction to hear the case decided today (Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections), but later, in 2003 and 2004, discovered a very serious issue calling into question its competence to go ahead with the case.
This was because the Federal Republic of Yugoslavia had by then abandoned its claim of identity in international law with the old Socialist Federal Republic of Yugoslavia, and had therefore accepted that it had not been a member of the United Nations between 1992 and its admission to the Organization in 2000. If that were indeed the case, Yugoslavia would not have had a right of access to the Court under Article 35 (1) of the Statute of the Court, and would therefore not have been capable of being a respondent party in a case before the ICJ.
This point was impressed upon the Court in a 2001 request for a revision of the 1996 judgment, which had found in favour of the Court’s jurisdiction without going into the questions under Article 35 of the Statute, i.e. the matter of the respondent’s access to the Court. The request was, in 2003, rejected largely on the grounds of the specific requirements of the revision procedure under Article 61 of the Statute, but the Court also made reference to the ‘sui generis position’ Yugoslavia had enjoyed vis-à-vis the UN (Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia-Herzegovina), paras. 50, 71). What this meant was never entirely clear, but it was widely understood as implying that Yugoslavia had in the relevant period enjoyed some rights of membership in the UN, but not others. Indeed, the ICTY expressly said as much in The Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola Sainović (Case No. IT-99-37-PT, Decision on Motion Challenging Jurisdiction, paras. 37-44), citing the ICJ revision judgment in support of this position.
Whatever this ‘sui generis position’ meant, the notion was not to be around for very long. In a separate set of proceedings instituted by Yugoslavia against all the member States of NATO relating to the Kosovo air campaign, the Court firmly stated in December 2004 that Yugoslavia had not been a member of the United Nations, that it had therefore not enjoyed a right of access to the Court, and that the Court was therefore not competent to deal with the case (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, para. 91).
The Court was, of course, much criticised for thus departing from its own, very recent precedent, as established in the 2003 revision judgment (see ibid., Joint Declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Buergenthal and Elaraby, esp. paras. 3, 12).

There was, now, recent ICJ authority saying in the clearest possible terms that Yugoslavia had not been capable of being a party to a case before the Court, when the Genocide case, decided today, was introduced (that being the relevant point in time). This would be expected to give Serbia and Montenegro (as it was by then called) high hopes that the case against them would be dismissed in line with the Court’s 2004 opinion. But the Court today did nothing of the kind.

Instead, the Court today returned to its 1996 judgment, in which it had found that it had jurisdiction. That judgment never went into the question relevant today, namely that of the respondent State’s access to the Court under Article 35 of the Statute, but this did not trouble today’s Court. It held that the 1996 judgment was dispositive of the jurisdiction issue as a whole, and that it had to be interpreted as encompassing not only the matter of jurisdiction under Article 36 of the Statute (which requires the agreement of the parties to bring the case before the Court, in this case established generally in Article IX of the 1948 Genocide Convention), but also the logically anterior question of whether both parties were indeed capable of being parties to the case under Article 35 (and, presumably, Article 34 (1), as well, although this did not present any problems). In other words, the judgment finding for the Court’s jurisdiction would be understood to say not only what it clearly did say, but also to establish what it logically had to say.
This having been established, the 1996 judgment was res judicata as between the parties, which meant that the Court could not go back and re-enter questions it had finally determined at the earlier stage. The power in and obligation on the Court to satisfy itself, if need be proprio motu, of its own jurisdiction, and particularly of the competency of the case under Articles 34 and 35 of the Statute, did not trump res judicata, as no precedent showed this power and obligation to exist in cases where the constraints of res judicata applied.

This presents a novel reading of the doctrine of res judicata, which would previously have been understood as referring only to what has really been decided and reasoned by the earlier Court, and to nothing more (see the Joint Dissenting Opinion of Judges Ranjeva, Shi and Koroma appended to today’s judgment, paras. 3-4). Also, the dissenting judges argue that the broader reading of res judicata adopted by the Court could not be reconciled with Article 56 of the Statute, which requires the Court to give reasons for its decisions: if that is so, surely the Court cannot be accepted as having decided an issue without having given even the slightest reasoning to support its supposed holding (ibid., para. 3)?
To be sure, the duty to give reasons for a decision is an indispensable part of all judicial work (see Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports (1954), pp. 47, 52; L.F. Damrosch, in: A. Zimmermann, C. Tomuschat, K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (2006), Art. 56 MN 19-22). But the argument derived from this may still not be as compelling as it would appear: the force of res judicata is a corollary of the finality of the Court’s judgments (Article 60, cl. 1 of the Statute); indeed, it may be no more than another word for it. Such finality exists in the interests of ‘the stability of legal relations’ (today’s judgment, para. 116; in other words, legal certainty), and thus in the interests of all the parties (ibid.), and ultimately the rule of law itself (see ibid., para. 116 in fine, and Hornsby v. Greece (ECtHR), para. 40). It is difficult to see how any of these interests could be diminished if the Court has failed to give reasons for its resolution to the case before it (the relevant aspect of the rule of law is that of legal certainty, not of the material correctness of the decision).
In particular, it is not the Court’s authority that is protected by the preclusive effect of res judicata. If that were the case, the doctrine would apply even to later cases between other parties, and to later cases where there is no complete ‘identity of cause [and] of subject-matter’ with the previous case (see on these requirements of res judicata the Joint Dissenting Opinion, supra, para. 4); it would operate a lot like a doctrine of stare decisis. This it does not do (see ibid.). It is therefore also no argument against the majority view of res judicata that the Court’s authority is not involved if it has never pronounced on a given aspect of a case.

There might be a problem in the Court’s approach in that it ascribed finality to a holding in an earlier decision on which the parties had not at that time presented any argument. But this only really goes to the procedure in the previous case, not to the question of whether the case can be regarded later as having finally determined any issue. After all, even the most explicit holdings can, in certain circumstances, go beyond or otherwise stray from the arguments of the parties (although the doctrine of ne ultra petita, albeit limited by the possibilities of Court action proprio motu, will prevent the Court from going beyond the parties’ claims), and conversely, an issue argued at some length by the parties might appear in the judgment only as a logically implicit holding, like the one found by the Court today.
Also, the preclusive effect of the doctrine of res judicata will obviously not prevent the parties from arguing their case on the previously decided points; the Court is always very slow indeed to interfere with a State’s choice of arguments. While this does not really give the parties ‘their day in court’ if the Court cannot reply to such arguments, full argument may lead the Court to decide that the matter was not, after all, decided in the earlier case.

While neither the argument based on the absence of reasons from the earlier case, nor the one on the absence of argument by the parties provide conclusive general reasons against the judgment of the Court, both do indicate that the course chosen is far from desirable.
But in the circumstances, the solution adopted may have been the most elegant way out of a dilemma: the Court otherwise had a choice on whether it would continue to hold that Yugoslavia had not been a member of the UN, or revert to its previous holding that only some rights of membership were available to that State.
In the former case, it would have again contradicted its 2003 revision judgment, and greatly alienated not only the applicant, but also many other States interested in hearing the Court’s judgment on the merits. The result might even have been comparable to the disaster that struck the Court after its infamous 1966 South West Africa Cases, when States more or less ignored the Court, and starved it of cases. (Perhaps ironically, the Court would appear to have nailed the final nail in the coffin of South West Africa, 1966: if its present view of res judicata had been taken in 1966, the 1962 judgment would almost certainly have prevailed over the 1966 Court’s own opinion).
In the latter case, the Court would again have departed from its own precedent, and, it might be added, for no good substantive reasons. This volte-face might also have served to alienate States, as they could no longer be confident that the Court would faithfully apply its own case-law. Legal certainty is important to litigants, and the absence of legal certainty may wreck a court.
Instead of taking either of these routes, the Court said that while the substantive law is as stated in the 2004 Legality of Use of Force cases (i.e. Yugoslavia was not, at the relevant time, a member of the UN), the Court was bound by the earlier res judicata, and could not give effect to the actual state of the law.
The expansive view of res judicata necessary for this way out of the problem may be open to some doubt, but it does take some more doing to criticise it than to attack either of the other options. Also, the view actually taken may not become relevant again, and thus probably does not carry any risk that States will be seriously unhappy about it (except Serbia).

Finally, a few quick words on whether res judicata, if it does apply, can be overcome by the duty on the Court to satisfy itself of its own jurisdiction. First, it is demonstrated by the Court that there is no precedent demanding a positive answer to the question. This is unsurprising, as the case will hardly ever arise.
Secondly, the Court has also said (at para. 138) that there is no risk that it could ever give judgment on the merits without having jurisdiction, after having erroneously having found that it is competent in a previous judgment on preliminary objections. This is because the question of the Court’s jurisdiction is for it alone to finally decide (Article 36 (6) of the Statute). Therefore, if the Court has found that it has jurisdiction, and is substantively wrong in this, Article 36 (6) of the Statute has the effect of turning the Court’s positive decision on jurisdiction into a title of compulsory jurisdiction; the judgment alone gives the Court jurisdiction. It follows that, ‘as a matter of law’ (ibid.; emphasis in the original), the Court can transform a case without jurisdiction into one without any such problems. Accordingly, if Article 36 (6) of the Statute applies also to decisions on Article 35 (and who else could be entitled to make that decision?), the Court’s decision on access will create a right of access, if it finds one that does not really exist. Therefore, there can be no question of the Court having to go into the matter of the right of access again after that decision, simply because there is no absence of access to rectify, and the Court could only ever come up with a positive answer.

To sum up, I agree with the Court that it was entitled to exercise its jurisdiction, though not without some misgivings. Such misgivings as there are, however, are due not so much to errors on the part of the Court, but to the inconvenient circumstances in which it now found itself. Its solution seems to have been the best possible.

More ICC News: Indictments in Darfur situation to be announced on Tuesday

2007-02-23T15:23:00.000+01:00

As already noted by Julian Ku over at Opinio Juris, the ICC Prosecutor has announced that he "will submit evidence, in connection with named individuals, of war crimes and crimes against humanity in Darfur," and that this evidence will be "file[d] with the ICC judges".
I guess that means that the first applications for warrants of arrest will be submitted on Tuesday.

The big question, of course, is whom the OTP will choose to focus on, especially whether it will also seek warrants against Sudanese government officials and thus risk the non-cooperation of that government. I find this hard to predict - so far, the OTP has in all instances only prosecuted one party to the conflict (i.e. the UPC in the DR Congo and the Lord's Resistance Army in Uganda), but then again, those were state, not Security Council, referrals...

We'll see. In the meantime, the discussion, typcial of international criminal law issues, of "rule of law" vs. "Realpolitik" (or "justice" vs. "peace", or however one wants to frame this discussion) seems to be already beginning at Opinio Juris.

Developments at the ICC - Principal Defence Counsel Hired; New Defense Counsel for Lubanga?

2007-02-23T14:22:00.000+01:00

More on the Confirmation Decision in the Lubanga case soon. In the meantime, there have been some new developments at the ICC concerning the Defence:

First of all, it seems that Thomas Lubanga Dyilo is trying to find a new Defense Counsel as his current counsel Jean Flamme is suffering from health problems: These had already been referred to when the Defence had requested extensions of time limits in the context of appealing the Confirmation Decision of 29 January (see, e.g., para. 2 of this Appeals Chamber document).
In an Appeals Chamber decision of today, we learn that the Defence has submitted a "Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense." The precise content of this document is still confidential, but I guess the title pretty much says it all. The Appeals Chamber has extended the time limits for certain Defence actions until 23 March 2007, so it seems likely that a new Counsel will be chosen by that date at the latest.

In other Defence-related news, the ICC has finally succeeded in hiring a Principal Counsel for the Office of Public Counsel for the Defence, Xavier-Jean Keita of the French bar. Surprisingly little information is available on the web about this new head of the Defence at the ICC (actually, none at all on the ICC website). I find this interesting, especially when compared to the quite abundant information on, e.g., the Chief Prosecutor and his Deputies (see, e.g., this Press Release on the ceremony surrounding the swearing in of Luis Moreno Ocampo) - so much for making the Defence an equal partner and "Fourth Pillar" (next to Judiciary, OTP and Registry) at the ICC, I guess.

Anyway, one of Keita's first acts in office was a response to a decision of the Pre-Trial Chamber "inviting" his office to undertake specicic work for the Lubanga Defence (namely redactions in the application for leave to appeal the Confirmation Decision) in the absence of Counsel Jean Flamme. In his response, Maitre Keita notes not only that his office is not technically able to follow this invitation (not having been granted access to all necessary documents, see para. 22), but also that its mission is to assist Defence Counsel before the Court in general, not to undertake specific work related to a single case, especially where the Defence team in question has not requested the Office to do so (see especially para. 19).

It'll be interesting to see how the relationship of the OPCD to both Defence Counsel and the Chambers of the Court develops further.

Another warm welcome to the International Law blogosphere...

2007-02-15T12:28:00.000+01:00

... to "1948 - An International Blog at the University of Leiden" by Richard Norman and Otto Spijkers. Norman has a background in Conflict Studie, Spijkers is an International Law Ph.D. Candidate at Leiden; accordingly their blog covers not only international law, but also other related topics.
The blog certainly looks spiffy, and in the two weeks that it has been up, the two have already written interesting posts on such diverse topics as "Calvin and Hobbes and International Law" and the ideology of the North Korean regime.

Time for us to update our blogroll...

Thoughts on the Lubanga Confirmation Decision - Part 1 of ?

2007-02-08T18:42:00.000+01:00

Having finally read the Confirmation Decision (which, so far, is available only in French here), here are some initial thoughts:

Some smart Ph.D. student or scholarly inclined Defence Lawyer will have to write a book about disclosure, especially about restrictions to disclosure, at international criminal tribunals.
The disclosure process makes up the bulk of the paper produced in the pre-confirmation procedure, what with all those requests for authorisation of redactions, disclosure notes and inspection reports, etc. I would venture the guess that the whole disclosure process is responsible for a large part of the eight month delay between the first appearance of Thomas Lubanga and the beginning of the Confirmation Hearing - and this in a trial concerning charges which are rather uncomplicated both legally and as regards the evidence required to prove them.
What's more, it also seems to be one of the most legally complicated and divisive issues, with up to now three judgments of the Appeals Chamber reversing Pre-Trial Chamber decisions (one on appeal by the Prosecution - see here; two on appeal by the Defence - see here and here).
And it again features prominently in the Confirmation Decision, where the Pre-Trial Chamber has to deal with the fallout from the last two of these Appeals Chamber judgments, which only arrived after the end of the Confirmation Hearing. Quite frankly, I have all but given up on trying to follow proceedings on these questions in depth, but I do sympathize with the Defence's worries, as detailed e.g. by Melinda Taylor from the Office of Public Counsel for the Defence during the First Day of the Confirmation Hearing (starting on page 171, time-stamp 17:41:00)

Coming to the more substantive issues dealt with by the Chamber, the first refers to the chapeau of Art. 8 Rome Statute, i.e. the existence of an armed conflict in Ituri province at the time of the alleged crimes. The Chamber finds that from July 2002 to June 2003, the Ituri conflict was of an international character due to occupation by Ugandan armed forces. The Chamber also finds that there was some evidence of involvement of Rwandan troops in the conflict, but that there was not enough evidence for it to decide whether this involvement could be characterized as "direct or indirect intervention". Two remarks on these findings:

First of all, they might be taken as indicative of the ICC's behavior towards findings by other international courts, especially on questions of general international law. In this regard, as far as the legal standard for, e.g., armed occupation is concerned, the Chamber relies on a mix of ICJ and ICTY jdugments. As for the factual pronouncements, there are some obvious parallels between the Chamber's decision and earlier ICJ judgments in parallel cases: In proceedings brought by the DR Congo against Uganda, the ICJ had found that Uganda had violated internationa law by, among others, occupying parts of the DR Congo's territory. In parallel proceedings against Rwanda, however, the ICJ found that it lacked jurisdiction to deal with the issue.

Secondly, the Chamber's characterization of the conflict conflicts (bad pun actually not intended) with that of the Office of the Prosecutor, which had characterized the conflict as non-international for all of the material time. The OTP had, in fact, charged Lubanga only with the war crime of recruitment of child soldiers in non-international armed conflict (Art. 8 (2) (e) (vii) Rome Statute) and not alternatively or additionally with the similar crime in international armed conflict (Art. 8 (2) (b) (xxvi) Rome Statute). In such situations, i.e. where the Chamber's legal characterization of acts charged differs from that of the OTP, Art. 61 (7) (c) (ii) Rome Statute foresees that the Chamber adjourns the hearing and requests the Prosecutor to consider amending the charges in this regard. The Chamber, however, chose to instead confirm the charges while substituting (Art. 8 (2) (b) (xxvi) for Art. 8 (2) (e) (vii) (or, in other words, amending them itself), pointing to the substantial similarity between the two crimes. I guess that from the perspective of judicial economy (and thus from a speedy trial perspective), that makes sense. At the same time, it could also be seen as a further stage in the struggle between the PTCs and the OTP about who has control over pre-trial proceedings (I am working on an article on this question, and I also hope to post some more about it in the near future) - in fact, the OTP has asked for leave to appeal the Confirmation Decision, under Art. 82 (1) (d) Rome Statute, for precisely the reason that the Chamber substituted the charges.

Speaking of appeals: Not only the OTP has appealed the decision, but so has the Defence.
First of all, Defence Counsel has brought an appeal an appeal under Art. 82 (1) (b) of the Statute, which grants a right to appeal against "a decision granting or denying release of the person investigated or prosecuted." While it is true that the Confirmation Decision effectively leads to Lubanga's further detention, I am not sure that this means that it is covered by Art. 82 (1) (b), and apparently neither is the Appeals Chamber, which instructed parties to focus on this very question first (see the Defence Submission on the question here).
Second, as becomes clear from this decision of the PTC Single Judge, the Defence has also asked for leave to appeal the Confirmation Decision under Art. 82 (1) (d). We'll have to wait and see how things develop, but my guess would be that none of these appeals will reach the "merits" phase.

This much for now - stay tuned for future posts on the substantive findings on Arts. 8 and 27 Rome Statute and for a first attempt at characterizing the Pre-Trial proceedings as a whole.

Non-Justiciability and the Right of Access to a Court: Some Closing Remarks

2007-02-06T00:34:00.000+01:00

Over the last few months, I have grappled with some American rules of justiciability, and considered whether these are in violation of human rights law, specifically the International Covenant on Civil and Political Rights (ICCPR). Now seems to be the time to draw some conclusions, and add some final remarks.

I have argued in the first post on this subject that Article 14(1)(2) ICCPR, on its face a right to a fair trial, includes an obligation of granting litigants access to a court’s process if the litigation relates to their ‘rights and obligations’. On this basis, I argued that, if a case on its individual facts raises a litigant’s civil ‘rights and obligations’, dismissal of that case on the grounds of non-justiciability is an infringement of the right of access to a court, and as such requires justification (which is essentially a proportionality test, with a consequent prohibition on wholesale negations of the right). It is, in particular, of no immediate relevance that political cases might be said in US constitutional law not to present a ‘case or controversy’ (see Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)), and that political cases are therefore outside the ‘institutional competence’ of the courts (Bancoult v. McNamara, D.C. Cir. 2006, at p. 16 of the PDF file). The right of access to a court does not depend on the domestic view of the separation of powers, but itself requires that the courts be, as a general matter, competent to deal with all cases raising legal ‘rights and obligations’, as defined autonomously under the Covenant, not under the domestic constitution. Where the courts are not so competent, and a case raising such ‘rights and obligations’ is dismissed, the permissibility of the dismissal will therefore be unaffected by the existence of constitutional limits to the courts’ competence, but depend only on whether such limits can be defended as proportionate for the achievement of a legitimate aim (see my post on the political question doctrine).
I have further argued that the political question doctrine presents very grave problems in this respect, and that it may, in its broad form, well be said to violate international law. The state secrets doctrine, while still problematic, may be defended if it is applied with due regard to a fair balance between the protection of genuine state secrets and the right of access to a court. Similarly, the act of state doctrine seems to leave the courts sufficient leeway to warrant dismissal only in cases where it truly appears meritorious.

So, I have concluded that the American rules on justiciability are somewhat problematic. To be sure, the American courts will not care very much, as they accept the Senate’s interpretative declaration appended to the ICCPR that the Covenant is not self-executing (see Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)). However, this clearly does not affect the question of whether the US is in violation of international law if a case is dismissed in violation of the Covenant. The problem I have sought to set out still exists at the international level, regardless of its (lack of) adoption in domestic law.
Assuming I am right in all this, is there a way out of the problem?

Yes, there is. As I pointed out in my post on the act of state doctrine, the right of access to a court can only rule out procedural limitations on what the courts can be called upon to do. If the limitation on the ability of a court to accede to a request follows from the substantive law pleaded by the plaintiffs before it, then the plaintiffs just do not have the right they seek to have judicially protected, and no ‘rights and obligations’ are at issue. The right of access therefore does not apply (see Powell and Rayner v. United Kingdom (ECtHR), at para. 36; Z and Others v. United Kingdom (ECtHR), at paras. 87, 100).
The answer to any problem that justiciability issues might create under the right of access is therefore quite straightforward: the state can simply remove the procedural limitations, and replace them with changes to the substantive law. States might, for instance, accept that highly political questions will be litigated, but at the same time make sure that, in substantive law, the government retains considerable freedom in dealing with such questions. This is, in fact, the general approach taken by German law.
Of course, this approach might raise its own problems under the substantive human rights of the Covenant. For example, if one person makes defamatory statements about another, and the injured person has no substantive right of redress against the defamer, the state may by not providing that right have violated a positive obligation of protection under Article 17 ICCPR (the right to respect for one’s private life, as in Art. 8 ECHR) (see Fayed v. United Kingdom (ECtHR), at paras. 66-67). But where serious issues of policy are concerned, and the government may not wish to be ‘disturbed’ by the law and by the courts, the stringency of human rights law is likely also to be somewhat reduced. Thus, it may be recognized that the state enjoys a broad margin of appreciation e.g. in matters of national security (see Leander v. Sweden (ECtHR), at para. 59; Smith and Grady v. United Kingdom (ECtHR), at paras. 77, 89), or it may be accepted that the state is under no positive obligations in this respect to begin with (see e.g. Jordan v. United Kingdom (ECtHR), at para. 128, and the other European cases reviewed in R (Gentle) v. The Prime Minister [2006] EWCA Civ 1690, at paras. 52-55).

So, the state can turn procedural bars into substantive ones, and be free from the constraints imposed by the right of access to a court (although another human right, like for instance Art. 17 ICCPR, might impose much the same constraints; see Fayed, supra, at para. 67). This means that ‘[i]t may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy’ (ibid.; emphasis added).
If that is so, it may reasonably be asked if the right of access to a court makes any sense. After all, its limitation to procedural issues means that it governs not so much what states can do, but how they must go about doing it. It might be argued that, if such a technical right is not ‘theoretical and illusory’, in exactly the way human rights should not be (see e.g. Airey v. Ireland (ECtHR), at para. 24), nothing is.

But this is to sell short the merits of the right of access to a court. It may be dependent on the content of the substantive law, i.e. the civil ‘rights and obligations’ of a person, at any one time, but it is capable on that basis of strengthening the effectiveness of such law. The right ensures that the courts will be ready to apply and defend the law (or, if they are not, that any grounds for not hearing or deciding a case are reasonable). It therefore protects the role of the courts as the defenders of the rule of law, and requires the courts to faithfully execute this role. The right of access to a court therefore reinforces the rule of law itself, as indeed it was intended to do (see Golder v. United Kingdom, at para. 34); this function is, in addition, strengthened and put into actual practice by the further obligation deriving from this right to ensure that any judgment given as a result of a person’s access to the court’s remedial processes is then complied with and executed (see Hornsby v. Greece, at para. 40).
The fact that the right is dependent on the (arguable) existence of ‘rights and obligations’ under substantive law would seem to entail that the courts are allowed to blindly apply that law without concerning themselves with objections as to its material content. This means that the concept of the rule of law employed is a somewhat technical one, requiring the courts (and other organs of the State) to always apply the law as they find it, but experience (inter alia, that of the Strasbourg Court itself) shows that even this somewhat less than ambitious guarantee is not self-evidently observed, and has been violated. It is therefore right that a guarantee should exist against refusals by the courts to uphold the rule of law.

This is not necessarily to say that overly cautious doctrines on justiciability represent a monstrous abdication by the courts of their function as the ultimate guarantors of the rule of law, but it can be argued that the judges should and must be wary of any step in that direction, on the basis of current international human rights law, as supported by reasons of high principle.

Blog Recommendation: Trials and Denials in Cambodia

2007-02-05T15:24:00.000+01:00

We interrupt our regularly scheduled program to recommend another blog on international criminal law: Trials and Denials in Cambodia, by a Cambodian blogger describing her/himself as a "Thinker", covers the goings-on surrounding the Extraordinary Chambers in the Courts of Cambodia and offers some interesting insights.
Among those: One of the main problems facing the Court's staff at the moment is food.

ICC: Decision on Confirmation of Charges in the Lubanga Case on Monday

2007-01-29T16:08:00.000+01:00

Just a quick heads up to those interested in developments at the International Criminal Court: On Monday 29 January, Pre-Trial Chamber I will deliver its decision on the confirmation of charges in the case against Thomas Lubanga Dyilo, former President of the Union des Patriotes Congolais (see the Court's Press Release here).
If all or some of the charges - enlisting and conspricting children under the age of fifteen and using them to participate actively in hostilities - are confirmed, the first trial at the ICC can be expected to begin this year.
Watch this blog for a first look at the decision early next week - hopefully I'll also find the time to sum up some of the more important decisions in the Pre-Trial Phase.

UPDATE: Charges have been confirmed, a press release summarizing the decision is available here. More after the written decision has been made available online, which apparently may take a couple of days.

English Court Refuses Challenge to Legality of Iraq War

2007-01-16T21:52:00.000+01:00

As I mentioned in an earlier post, the English Court of Appeal (the second highest court in England and Wales, after the House of Lords), has agreed to hear a case effectively challenging the legality (in public international law) of the last Iraq war. The hearing has been held in November, and judgment was delivered on 12 December 2006 (I apologise for reporting this only now; other duties intervened). The case is R (Gentle & Ors) v. The Prime Minister [2006] EWCA Civ 1690.

The applicants in the case were all relatives of British soldiers killed in Iraq, and requested an investigation into their sons’ deaths. This is, as such, nothing extraordinary, and certainly nothing the government would be worried about. In fact, there was no question that an ordinary coroner’s inquest would be held, to find out ‘by what means and in what circumstances’ (see R (Middleton) v. West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para. 35) the soldiers had lost their lives.
But the applicants’ request was rather broader than that, and much more worrisome for the government. They requested that the purview of the inquest be extended to cover also ‘the question whether the government took reasonable steps to be satisfied that the invasion of Iraq was lawful under the principles of public international law’ (para. 3 of Gentle).
The applicants’ argument was basically in two parts:
- There was a procedural obligation under Article 2 ECHR to investigate the circumstances of any death occurring in circumstances where the substantive provisions of Article 2 on the State’s negative and positive obligations with respect to the life of persons under its jurisdiction may have been violated. This much was not contentious, and is quite clearly correct (see again Middleton, supra, para. 3, citing a wealth of European jurisprudence).
- One of these positive obligations with respect to a person’s life was that the State could not send its soldiers into battle unless it had ascertained previously that the battle was in accordance with international law.

This second submission was, of course, contested by the government’s side, and was rejected by the Court of Appeal (it was also, incidentally, very much doubted by yours truly, if partly on other grounds).

The Court began by saying that any claim for judicial review challenging the lawfulness of going to war would ordinarily be bound to fail, as it would take the courts into a ‘forbidden area’, that of the most highly political, and least (domestically) legally controllable, decisions under the Royal prerogative. However, the Court also recognised that the rules of justiciability could not prevent the courts from giving effect to a Convention right.
The question was therefore only whether there was an obligation under Article 2 ECHR not to wage war unless one is sure that the war will be in accordance with international law. The Court accepted, however, that the obvious non-justiciability of the question, as apparently more or less recognised by all member States of the Council of Europe, did present an argument against the existence of the Convention obligation.

The Court held that there was no such obligation. The obligation to make sure that a war was lawful could not be divorced from the much broader question whether it was politically and militarily desirable, but the applicants had clearly disavowed any support for such a broad rule. The question, and with it the question of the legality of a war, was one of policy and within the sole discretion of the State. This was supported by European and domestic authority (with which I will burden this post), whereas the applicants’ position was not.

The Court did not address the further question whether the deaths had occurred ‘within the jurisdiction’ (Article 1 ECHR) of the UK, except in noting very briefly that there was ‘much to be said for the conclusion that the principles in Soering [i.e. the prohibition of sending someone to a place where he or she would run a real risk of subjection to treatment (grossly) contrary to Convention standards] should apply to article 2 as they do to article 3’ (para. 82 of Gentle).

The judgment in Gentle is far from adventurous, but its outcome is clearly correct. It is only a little curious that the Court does not begin to go into the fairly fundamental question why the legality of the Iraq war should have anything to do with the positive obligation of protection that a State owes all persons under its jurisdiction, including its soldiers. As I mentioned in my earlier post, there is no requirement in Article 2 ECHR that any killing be lawful; much less is there a requirement that every State action exposing individuals to a real risk of being killed be lawful. The question here is whether there exists such a real risk, not whether the law (any law) allows the State to take such a risk.
The Court is therefore quite right to say that any obligation of ascertaining the legality of a war would be bound up with the further question of the military advisability of going to war, but this is not due only to the specific circumstances of the government’s examination of the law in this case. Rather, if the Soering-type obligation under Article 2 ECHR did apply, it would surely prevent the deployment of soldiers also where a lawful military campaign created a ‘real risk’ (a relatively high standard) of being killed for the soldiers.
It may appear, as a practical matter, that this consequence will never be drawn judicially. But it may also be mistaken in principle, simply on the grounds that the standard of the ‘real risk’ is too high to ever be achieved in the context of military operations. After all, the standard would have to be met for every soldier individually, so as to prevent his or her deployment. The circumstances of military action will hardly ever be so grim as to force the conclusion that either every soldier, or every one of a given group of soldiers, or one specific soldier, will run a real risk of not returning.
And even if circumstances should be so grim, the State could always enter a derogation under Article 15 ECHR. To be sure, this is limited for Article 2 to a derogation for killings allowed under humanitarian international law (Article 15(2) ECHR; see my earlier post), but the latter body of law does not prevent the killing of soldiers fighting in an armed conflict.
Of course, all this is before we even come to the argument that a soldier necessarily consents to being put in situations of extreme danger, and that he or she therefore waives the Article 2-Soering-right. The waiver argument is rarely very attractive in human rights law, allowing for all sorts of slippery-slope arguments, but it may be acceptable in the present context. If the State was prevented from exposing anyone to a danger of death, regardless of that person’s consent, all kinds of emergency services would face a very real problem (and the consenting person’s autonomy, surely the linchpin of all human rights, would be rather ignored).

Postscript to Tobias' Introduction

2006-10-23T13:00:00.000+02:00

I have been absent from the blogosphere for quite some time now, and apologise to anyone who may have visited this site time and again, only to find that nothing had been posted to it. (I don't know if anyone did)

This is not without reasons: I have recently taken up LL.M. studies at the University of Edinburgh, and was (a) quite busy finding my way around (b) quite busy socially (well, I am a fresher - freshman, to our American readers - again...), and (c) British Telecom took their time in arranging internet access for my flat.

My latest post, No. 3 in a line of posts begun much too long ago, is below. There may be more coming in the next few days, depending on the speed of my research.

The Act of State Doctrine: In Violation of International Law? (Part 3)

2006-10-23T12:43:00.000+02:00

In Part 3 of my series of posts on justiciability and the right of access to a court, I now come to the act of state doctrine, having considered the political question doctrine and the state secrets doctrine in earlier posts, all after having set the scene with some remarks on the relevant rules of international human rights law.

I now repeat very briefly some of those introductory remarks: I concluded that Article 14 (1) (2) ICCPR implied a right of access to a court in much the same way that Article 6 (1) ECHR does (as to which see Golder v. United Kingdom, at para. 26-40). Accordingly, Article 14 demands that all disputes involving a person’s ‘rights and obligations’ be capable of submission to judicial settlement, or else that any dismissal in such a case be justified in accordance with the implicit requirements of the right of access, viz. the proportionate application of rules of law pursuing a legitimate aim.

But now on the doctrine itself:

The act of state doctrine prevents American courts – ‘federal and state courts alike’ (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964); Kirkpatrick v. Environmental Tectonics Corp., 493 U.S. 400, 406 (1990)) – from ‘declar[ing] invalid the official act of a foreign sovereign performed within its own territory’ (Kirkpatrick, supra, at 405). Such an act ‘becomes (…) a rule of decision’ (Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918)), so that an American court faced with it must treat it as valid. Accordingly, the jurisdiction of the court to make any decision on the foreign act of state is not ousted by the doctrine; all the doctrine does is to determine the result which the court must take as established, namely the validity of the foreign act of state. The doctrine may therefore be described as ‘an immunization ratione materiae’ (Thomas H. Hill, ‘Sovereign Immunity and the Act of State Doctrine. Theory and Policy in the United States’, RabelsZ 46 (1982), pp. 118, 123).

This means that the doctrine is by no means identical to the rules of state immunity under international law, which do go to the jurisdiction of a court over a foreign state and its actions. This is also shown by the fact that the doctrine can operate where a state, which has itself been sued for its acts before an American court, has waived its immunity from legal process; the doctrine would even then prevent the court from finding an act of that state invalid (Hill, ibid.).

This is because the act of state doctrine does not depend for its validity on the rules of state immunity, or even on related considerations. As the US Supreme Court has explained,

‘The act of state doctrine does (…) have “constitutional” underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.’

(Sabbatino, supra, at 423). The doctrine therefore addresses ‘an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425), in that it prevents the courts from ever denying the validity of the acts of a sovereign state, and reserves this matter entirely to the other branches.

It remains unclear whether the doctrine applies also to the commercial of a foreign state, and whether the executive can ‘waive’ the monopoly afforded to it by the doctrine by declaring that in a specific case, it has no objections to denying validity to the foreign act of state (see Kirkpatrick, supra, at 404-405, citing opinions by two Justices affirming these exceptions, but refusing to decide the questions).

The fact that the doctrine does not, as I said, go to the jurisdiction of the courts generally, but constitutes ‘a rule of decision’ (Ricaud, supra, at 310) and an ‘immunization ratione materiae’ (Hill, supra), raises the first question in the examination of the doctrine under the international legal right of access to a court. This is whether the doctrine forms part of procedural or of substantive law.
If it is essentially a rule of substantive law, it negatives any ‘rights and obligations’ that private persons might otherwise hold in relation to the validity of acts of foreign states, i.e. the rights which such persons may claim to have been violated by a foreign state. Accordingly, the right of access to a court, which requires that such ‘civil rights and obligations’ be present, would not apply (see Z and Others v. United Kingdom, at paras. 87, 100).
If it is a rule of procedural law, this reasoning would not apply, and the right of access would be applicable. Any dismissal would therefore infringe the right, and require justification.

So, does the doctrine annihilate any rights that US law might otherwise grant in relation to foreign acts of state, or does it only prevent the courts from giving effect to US law in a manner that would lead them to declare a foreign act of state invalid? (Note that this is without prejudice to the – very reasonable – point that a right that is unenforceable in court is not really worth very much)
The answer appears to be that the doctrine belongs to procedural law. It is based on the constitutional role of the courts, rather than on any question relating to the substantive law. In content, it in effect renders the foreign act of state immune, if only from negative decisions of the courts. It thus goes to the court’s jurisdiction to make such a negative decision (see also Patrick W. Pearsall, ‘Means/Ends Reciprocity in the Act of State Doctrine’, Columbia Journal of Transnational Law 43 (2004-2005), pp. 999 et seq.), and is therefore substantive only in the sense that the courts will not dismiss for want of subject-matter jurisdiction, but for failure to make a substantive case. However, the substantive right as such remains unaffected, and may conceivably be taken up by the executive. If the rights did not remain extant, and the courts did, for example, recognize the substantive validity of any foreign act of expropriation, then such property rights would have been found to have been lawfully removed by the law of the foreign state, and the executive would face embarrassment when taking up the proprietors’ claim. This would obviously be directly contrary to the intendment of the doctrine.
It follows that, even if the doctrine applies, there remains a question of substantive law – and, possibly, of a person’s ‘rights and obligations.’

It might be noted, however, that there is a problem of translation here. It could be argued that in the understanding prevalent in common law jurisdictions, law exists only insofar as it can be applied by the courts, and that, consequently, any immunity may well be regarded as removing the rights otherwise to be protected by court proceedings. This would be a corollary of the court-centred nature of the common law system, in which, technically, the law does not give rights but grants actions (see e.g. Stig Strömholm, ‘The Tension between Human Rights and Responsibilities’, Juridical Review (2004), pp. 13, 15; see also R (Al-Rawi & Ors) v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279, at para. 146, per Laws LJ).
Thus, to give some examples, the exclusion of all actions in nuisance (a tort) in relation to the noise from Heathrow Airport was accepted by the ECtHR as removing the potential claimants’ ‘civil rights’ (Powell and Rayner v. United Kingdom, at para. 36), whereas conversely, the inability of the police to commit a certain tort in English law (as a point of substantive law) is often described as an ‘immunity’ (see for criticism of this terminology Barrett v. London Borough of Enfield [2001] 2 AC 550, per Lord Browne-Wilkinson; this terminology was misunderstood by the ECtHR in Osman v. United Kingdom, at paras. 135-140, as a procedural immunity, in an error acknowledged by the Court in Z and Others v. United Kingdom, supra, at para. 100).
Accordingly, any exclusion of all remedies in court in a common law jurisdiction may fall to be interpreted as affecting the substantive law, and therefore as removing all otherwise existing ‘rights and obligations.’ However, this does not account for the reasoning set out above as to why the reasons behind the doctrine must make it a rule (only) of procedural law.

If my understanding is correct, then there is an infringement of the right of access to a court where a case is dismissed under the act of state doctrine.

This again brings us to the question of justification.

As already stated, such justification is not available on the grounds of compliance with the commands of public international law, since the doctrine does not rest on international grounds. But, while this is true as a general point, there may be cases where the application of the doctrine leads to a result required by the rules of state immunity ratione materiae – although this would mean that the court in question has failed to see the relevance of state immunity, since, as an issue of jurisdiction, it would otherwise have logically arisen before the act of state doctrine. In such a case, justification would certainly be available.

In all other cases, justification of the infringement of the right of access to a court would depend on the acceptability or otherwise of the reasons behind the doctrine. The fact that the doctrine reflects the domestic constitutional arrangements as to the separation of powers, taken by itself, cannot be determinative, as I have previously argued with respect to the political question doctrine: the right of access to a court predetermines one aspect of the separation of powers by demanding that all disputes involving a person’s ‘rights and obligations’ be, absent justification, be capable of adjudication. Any conflicting domestic arrangement would merely create the background for future violations of the right, but would fail to affect the judgment in international law.
However, such an arrangement may be pursuing a legitimate aim and striking a correct balance between the reasons behind it and the right of an individual to have his or her cases heard and determined in court (such are the requirements of justification under the right of access: see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72).

The act of state doctrine ‘arises out of the basic relationships between branches of government in a system of separation of powers’ (Sabbatino, supra, at 423). It reflects ‘a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community’ (id., at 425)’, and may therefore be said to recognize that the executive is more suited to handling issues of international importance than are the courts. That the presence of sensitive issues in international relations is a good reason for being cautious in granting access to adjudication may have some support in the jurisprudence of the ECtHR: see Al-Adsani v. United Kingdom, Concurring Opinion of Judge Pellonpää, in fine (although this relates to caution in applying international law correctly). This may also be borne out by references by the ECtHR to the state’s margin of appreciation in immunity cases (see e.g. Fogarty v. United Kingdom, at para. 39): while it cannot be within that margin to pretend that the act of state doctrine is as such commanded by international law, there may be grounds for applying a broad margin of appreciation to all areas of international concern. After all, it may be for related reasons that the – Soering-type – prohibition of extradition applies only where there is a risk of severe mistreatment in the receiving state. Similarly, the prohibition on the recognition of foreign judgments resulting from an unfair trial may be said to be limited to cases of flagrant disregard of fair trial standards precisely because of the presence of international interests (see Drozd and Janousek v. France and Spain, at para. 110; but see also Pellegrini v. Italy, at paras. 40-8, where no such limitation was mentioned or applied).

However, this concept of the executive being more capable of handling international issues is a far-reaching one, and the limitations imposed on the right of access to a court must never be such as to ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (see e.g. Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at para. 72). Clearly, any blanket immunity therefore creates particular problems (see Osman v. United Kingdom, at para. 151; Fogarty v. United Kingdom, Dissenting Opinion of Judge Loucaides).
But then, it is also to be noted that the act of state doctrine is somewhat flexible in content (see e.g. Sabbatino, supra, at 427-428; Kirkpatrick, supra, at 409), even if it might be argued that it is of constitutional stature, and may therefore not be altered even by an Act of Congress (as has been argued by Helen Kim, ‘Comment: The Errand Boy’s Revenge: Helms-Burton and the Supreme Court’s Response to Congress’s Abrogation of the Act of State Doctrine’, Emory Law Journal 48 (1999), pp. 305 et seq.; see also Pearsall, supra, at pp. 1012-3). Thus, for example, ‘the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it’ (Sabbatino, supra, at 428); the extent of possible embarrassment for the executive branch will also be relevant (Pearsall, supra, at p. 1006). This may well save the application of the doctrine in many cases from falling foul of the right of access to a court.

In sum, the act of state doctrine does, in my view, create serious problems under the right of access to a court inherent in Article 14 (1) (2) ICCPR, but its flexibility may leave the courts sufficient lee-way to strike a justifiable balance between the public interest in leaving sensitive areas of foreign relations law to the executive and the human rights of people approaching the court for settlement of their grievances.

State Secrets and the Right to a Fair Trial, cont.

2006-08-02T16:47:00.000+02:00

I have argued in an earlier post that the secrecy of information relevant to a civil or criminal court case creates serious problems under Article 6 ECHR and/or Article 14 ICCPR, but that it could potentially be justified if all possible steps short of disclosure are taken in order to alleviate the consequences for any trial of – reasonably ordered – classifications of information.

I return to this because the English Court of Appeal has yesterday (again) spoken on the issue, reviewing a number of relevant authorities (some of which had eluded me) and reaching much the same conclusion as I did: where all the appropriate safeguards (including the provision of special counsel to represent the absent private party in relation to material heard in closed session) are in place, it may be permissible to keep some classified information from a private party to a case: Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, at paras. 69-86.

Needless to say, I agree.

English Court to Hear Challenge on Legality of Iraq War

2006-07-27T13:51:00.000+02:00

The English Court of Appeal yesterday granted permission to claim judicial review in R (Gentle & Ors) v Prime Minister & Ors [2006] EWCA Civ 1078, allowing the claimants to argue before it that the Iraq war was illegal under international law.

The claimants are all relatives of British soldiers killed in Iraq. They argue that the United Kingdom is responsible for the deaths under Article 2 ECHR (the right to life). Accordingly, they request a public inquiry into the deaths, in accordance with the procedural duty to conduct such an inquiry under said Article 2 (see e.g. McKerr v United Kingdom, at para. 111). They further request that such an inquiry should also look into the legality of the Iraq war as such, under the international jus ad bellum.

There are a number of difficulties with this argument:

First, did the fatalities fall within the jurisdiction of the United Kingdom, as required by Article 1 ECHR? The answer to this is little short of ingenious: the United Kingdom is said to be responsible for the soldiers’ deaths because it sent the young men to Iraq, thus exposing them to the risk of being killed, contrary to its Soering-type obligation to protect the men from such risks (on Soering as a case of a ‘duty to protect’, albeit a negative one, see Limbuela v Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440, at para. 64).

Of course, this kind of reasoning could spell disaster for European states, if the simple act of sending soldiers to a region in crisis could be said to involve, without more, a violation of the soldiers’ human rights (of course, as the judge at first instance rightly noted, ‘so-called floodgate arguments are not particularly persuasive in most cases’: [2005] EWHC 3119 (Admin), at para. 32, per Collins J). But perhaps we don’t have to resort to arguments such as the voluntary nature of military service as a waiver of human rights, or similar slippery slope points.

This is because, attractive though this reasoning is, it is not without its own constructive problems: thus, it is as yet unclear whether the Soering-rule, developed in an Article 3 case, applies also to Article 2 (but see the hints in Kareem v Sweden). Also, can it really be said that there is a ‘real risk’ of being killed for a soldier on embarking on a tour of duty? For one thing, the risk may be, while certainly present, not sufficiently grave; for another, the risk may be one common to everyone in the area (and therefore irrelevant to the Soering claim, at least according to Vilvarajah v United Kingdom, at para. 111).

The next difficulty for the claimants lies in the question why the legality of the Iraq war as such should be a matter for decision under the Article 2 claim.

Assuming that the Soering argument does hold water, Article 2 includes no requirement to the effect that any infringement of the right must be covered by lawful authority. Accordingly, the fact that the act of sending soldiers to fight in Iraq may itself have been in violation of international law, and thus unlawful, is nothing to the point.

The claimants therefore refer to Article 15 ECHR, which governs derogations from Article 2 in times of war, and provides in paragraph 2 that such derogations are impermissible ‘except in respect of deaths resulting from lawful acts of war’ (my emphasis). They argue that this refers back to the international rules governing the lawfulness or otherwise of the use of force (Article 2(4) of the UN Charter, and the corresponding rule of customary law).

However, the expression is not ‘resulting from lawful war’, it is ‘resulting from lawful acts of war’. This, like the fact that the ECHR deals with the rights of individuals, not of states, strongly suggests that the reference is to the rules of humanitarian international law governing the lawfulness or otherwise of killing in war (the jus in bello), not the legitimacy of waging war in the first place (the jus ad bellum).

In sum, I would agree with Julian Ku at Opinio Juris that the claim is based on a rather far-fetched argument.

But the claim also faces another very serious obstacle, in the shape of the English rules on justiciability: while there is no general political question doctrine, there are other rules occupying similar ground. Thus, Lord Bingham of Cornhill has explained in R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 30, in a passage that could have been tailored to the present case:

'Resolution of the charge would (...) call for a decision on the culpability in going to war either of Her Majesty's Government or a foreign government, or perhaps both if the states had gone to war as allies. But there are well-established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law.' [There follow extensive citations of authority]

This rule is, of course, subject to any rule of domestic law requiring adjudication even in the face of such circumstances (see Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [2006] 2 WLR 70, at paras. 31 et seq.), but, as I have attempted to show above, the Human Rights Act in this case requires nothing of the kind.

The claim would therefore appear to be certain to fail. Indeed, the Court of Appeal was at pains yesterday to stress that it did not grant permission to pursue the case because it saw any ‘real prospect of success’ (one of the two grounds under CPR 52.3(6) for granting permission); it granted permission only because the case raised questions of general importance and there was therefore ‘some other compelling reason why the appeal should be heard’ (the other ground). The Court also said (at para. 22):

‘We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed.’

In my view, the Court was quite right to add this warning.

Still, the hearing will certainly be interesting. If anyone reading this will be in London in November, I recommend going to the Royal Courts of Justice to hear this sustained legal attack on the decision to go to war in Iraq.

P.S.: It is also an unusual feature of this case that the application for judicial review will be heard not by the High Court, but by the Court of Appeal itself. Moreover, in a pointer to the importance of the case, the Court of Appeal will sit in a rather prominent constitution, being composed of Sir Anthony Clarke, the Master of the Rolls and Head of Civil Justice, Sir Igor Judge, the President of the Queen’s Bench Division, and Lord Justice Dyson.

U.S. Supreme Court Deals a Blow to ICJ, Wrongly

2006-06-29T16:59:00.000+02:00

Yesterday, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon, in which it held that (i) violations of the right to notification under Article 36 (2) of the Vienna Convention on Consular Rights (VCCR) do not make evidence gained from an accused ignorant of his rights inadmissible, (ii) claims of such violations were subject to the ordinary rules on procedural default, by which federal courts will in principle not hear challenges to state judgments that have not been previously raised in state court, and (iii) the fact that the International Court of Justice (ICJ) had held the application of the procedural default doctrine to be in violation of Article 36 (2) VCCR (LaGrand and Avena and Other Mexican Nationals) was nothing to the point, because the ICJ cases were (a) not binding on US courts, and (b) had been wrongly decided.

In my opinion, the only case here to have been wrongly decided is Sanchez-Llamas.

The first problem, to say the least, lies in the question whether the Supreme Court was bound to follow the ICJ. The Supreme Court here held that the US Constitution placed the powers of the Judiciary in US courts and specifically in the ‘one supreme Court,’ and that it therefore was not bound to follow any external cases.
To be sure, there is no doctrine of stare decisis in general international law (although I should point out that stare decisis has recently been advocated as a means of preventing other international courts and tribunals from departing from ICJ case law: see Jasper Finke, Die Parallelität internationaler Streitbeilegungsmechanismen, Duncker und Humblot: Berlin 2004, pp. 365 et seq. I don’t think that such is the law as it stands: see also the review of this book by Karin Oellers-Frahm in the German Yearbook of International Law 47 (2004), pp. 972, 975-76).
The Supreme Court is also quite right in saying that the ICJ is not itself bound by its own precedents (Article 38 (1) (d) in fine of the Statute).

However, states are bound by Article 94 (1) of the UN Charter (always read with Article 59 of the ICJ Statute) ‘to comply with the decision of the [ICJ] in any case to which it is a party.’ Again, to be sure, this binding force exists only ‘between the parties and in respect of the particular case’ (Article 59 of the Statute, emphasis added).
The petitioners in Sanchez-Llamas, Mr Moises Sanchez-Llamas and Mr Mario Bustillo, were not among the persons whose cases were referred to the ICJ in Avena. Mr Bustillo is not even a Mexican national. Nonetheless, it may be possible to argue that Mr Sanchez-Llamas, as a Mexican national, did come within the binding force of the Avena judgment, i.e. that he comes within ‘the particular case’ (Article 59 of the Statute). This is because the ICJ included a finding of general application in the operative and binding part of the Avena judgment: para. 153 (11) of the judgment found ‘that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United States of America shall, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention’ (emphasis added).
This finding by the ICJ clearly applies to any Mexican nationals, not only to those whose cases were before the Court (this is put beyond doubt by the fact that the same finding, mutatis mutandis, was already contained in LaGrand, at para. 128 (7), which case of course directly concerned two persons who had already been executed). There is a presumption that this command is within the bounds of Article 59 of the Statute, and not ultra vires the ICJ; indeed, this much is supported also by academic comment: see Rudolf Bernhardt, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary, Oxford University Press: Oxford, 2006, Art. 59 MN 36-40 (p. 1243).
In fact, this finding by the ICJ should be understood as following from a German/Mexican request for a general assurance of non-repetition (to which an injured state is, of course, entitled: see Article 30 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, p. 216, and Commentary thereto, ibid., pp. 219 et seq.). The requested assurance or guarantee, allowed by the law of state responsibility, is in effect granted by the judgment of the Court itself.
The United States must therefore abide by it, and the courts of the United States, whether federal or state courts, as organs of the United States of America, must respect the obligation of adherence to the binding judgment, or else the United States will violate international law (see Karin Oellers-Frahm, in Zimmermann/Tomuschat/Oellers-Frahm, op. cit., Art. 94 UN Charter MN 12-14 (pp. 165-67)).
In other words, the United States have yesterday violated international law.

And that’s before we come to an even more troublesome point: the constitutional interpretation chosen by the Supreme Court in order to absolve itself from the duty to follow the ICJ cases appears to be force the Supreme Court, as much as any other American court, from giving effect to the Avena judgment even in cases clearly falling under the obligation of Article 94 (1) of the Charter. If one of the individuals personally covered by the ICJ judgment should ever come to the courts to argue that his case must be reconsidered in accordance with Avena, an American court will be faced with a non-binding international judgment and, on the other hand, yesterday’s very much binding judgment in Sanchez-Llamas. Courts other than the Supreme Court would have no choice but to follow Sanchez-Llamas, and incur responsibility under Article 94 (1) of the Charter.
And even the Supreme Court would be in trouble in such a case: while it may, of course, depart from its own precedents, as from any others, it could hardly say that the VCCR means one thing in an Avena case, and quite another in all other cases (there in accordance with Sanchez-Llamas). This would be astounding.
So, whatever happens (short of the Supreme Court overruling Sanchez-Llamas very soon), the United States’ courts will be incapable of giving effect to Avena, at least as regards the procedural default aspect. At the very least, Sanchez-Llamas therefore means that the US will violate Article 94 (1) of the Charter.

Nor could it be said that the interpretation put on the Convention by the Supreme Court is beyond doubt, or even simply correct.
The Supreme Court put it to the ICJ that the latter had misunderstood the adversarial system of criminal proceedings in the American legal system. This was said to be relevant because Article 36 (2) VCCR provided that ‘[t]he rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state.’
However, this is under the proviso ‘that the said laws must enable full effect to be given to the purposes for which the rights (…) are intended.’ The rights must, accordingly, not be nullified, or restricted beyond usefulness. The ICJ considered that such would be the case if a person could not plead a violation of his or her rights in federal court, on the ground that he or she did not know of his rights earlier, which itself is a consequence of the violation. This appears to be unassailable.
Put simply, the reference to domestic law in Article 36 (2) VCCR does not give a state licence to remove the rights altogether. Nor does it allow a state to keep in operation fundamental rules of its own legal system, no matter what the effect of these rules on the relevant rights. Herein appears to lie much of the fallacy of the Supreme Court.
Also, the right is not the exception; the limitation by domestic law is. Generally speaking, domestic law, including basic features of the legal system, like the adversarial court system or the federal structure, are utterly irrelevant to international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231). The power of domestic law to limit the effect of international rules should therefore be narrowly construed. This the Supreme Court certainly did not do.
In fact, the Supreme Court’s judgment could hardly be described as according ‘respectful consideration’ to the views of the ICJ, to which they are, on the Supreme Court’s own view, entitled. The ICJ is the ‘principal judicial organ’ (Articles 92 of the UN Charter, 1 of the ICJ Statute) of the world organization, has described itself as an organ of international law (Corfu Channel, ICJ Reports (1949), pp. XXX), and holds very special expertise in all matters relating to international law (cf. Art. 2 of the Statute). This entitles it to a very great deal of respect, comparable to that which European courts commonly accord to the European Court of Human Rights (as to which see e.g. R (Boughton and Ors) v. HM Treasury [2006] EWCA Civ 504, at paras. 11, 38-41).

In sum, the Supreme Court has taken a swipe at the ICJ, which is not only regrettable as such, but also ill-considered on its merits.

Sudan Questions the ICC's Jurisdiction

2006-06-19T16:10:00.000+02:00

According to this Reuters Article from last Thursday, Sudan is questioning the International Criminal Court’s jurisdiction over the alleged cases of genocide, crimes against humanity and war crimes (See Art. 5 et seq. ICC Statute).

Sudan’s Justice Minister Mohammed al-Mardi said that:

‘If they are here to discuss the progress of trials or the role of national justice then we are ready to give them whatever information they are looking for (…) but if the matter is about investigations, then they (...) don’t have the jurisdiction.’

This statement followed a report given by ICC chief prosecutor Luis Moreno Ocampo to the UN Security Council on Wednesday saying that the ICC’s investigation has documented thousands of killings of civilians, large scale massacres, and hundreds of rapes.

The argumentation of Sudan seems to be that Sudan is investigating and prosecuting all crimes that probably happened in Darfur, and that therefore the ICC has no jurisdiction.

In this case, the ICC’s chief prosecutor started his investigations in Darfur under Security Council Resolution 1593 (2005) referring the situation in Darfur to the Court, a possibility of inducing proceedings provided by Art. 13 b) ICC-Statute.

According to Art. 17, however, the ICC shall determine that a case is inadmissible where:

‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.’
The principle of complementarity expressed in a) is obviously the norm al-Mardi is referring to.

Considering Sudan’s argumentation and said norms of the ICC Statute, there seem to be different legal questions under the Rome Statute that should be raised here. Before the questions can be addressed, however, it has to be said that Sudan is obliged to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to the Security Council Resolution, so that Sudan has no argument if the Rome Statute allows for investigations by the court.

First of all, the question arises whether Art. 17 refers also to the admissibility of investigations by the prosecutor. While Art. 13 refers to the exercise of jurisdiction by the Court, Art. 17 clearly addresses situations where a case is inadmissible. According to Art. 53, however, the prosecutor, in deciding to initiate proceedings, must also consider whether the case is admissible according to Art. 17. So Art. 17 plays a role also in the beginning of an investigation. however, according to Art. 53, it is the prosecutor who decides upon such investigations, not Sudan.

The second question is whether Art. 17 applies to cases where the Security Council referred a situation to the ICC. Under the wording of the Arts. 13 and 17, it seems clear that Art. 13 - the courts exercise of jurisdiction - and Art. 17 - the admissibility of a case, speak of different questions, and since there is no special limitation, Art. 17 is applicable to all cases of Art. 13. One could argue, however, that in cases where the Security Council under Chapter VII of the UN Charter refers a situation to the ICC, the question under Art. 17 if the concerned state is willing and able to prosecute has to be denied in any case. Would there otherwise be a threat to the peace or breach of the peace allowing the Security Council to act and to refer the situation to the court?

The third question is, if Art. 17 is fully applicable also in cases where a situation is referred to the Court by the Security Council, does the Security Council’s Resolution order the Court to investigate, giving it exclusive jurisdiction whether national courts are acting or not? It seems clear that the Security Council has the power to limit the states’ jurisdiction, thus going further than even the Rome-Statute does, making the ICC some kind of special tribunal. I can however not find any special passage clearly limiting Sudan’s jurisdiction, or in any other manner derogating from the principle of complementarity.

The fourth question then would be whether the Sudan really is willing and able to investigate and prosecute all crimes committed in Darfur, which can be doubted seeing the Report by Mr Ocampo and a Background Paper by Human Rights Watch, accusing Sudans Special Criminal Court of failing to accomplish its mission of prosecuting war crimes.

House of Lords on State Immunity for Torture in Civil Proceedings

2006-06-15T13:45:00.000+02:00

The House of Lords yesterday ruled that Saudi Arabia and Saudi Arabian officials were both immune from civil suit, even though the tort alleged was torture: Jones v. Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Others [2006] UKHL 26.

As regards the immunity of the Kingdom of Saudi Arabia itself, the House ruled, in the two fully reasoned speeches given by Lord Bingham of Cornhill and Lord Hoffmann, and with the agreement of all the other three members of the Appellate Committee (Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, and Lord Carswell), that there was no sufficient state practice in favour of an exception from state immunity for grave charges such as torture. The survey of authority by the House is quite comprehensive, and clearly lends ample support to their Lordships’ conclusion.

The House also considered whether the fact that the prohibition of torture ranks as jus cogens prevents state immunity, a rule of ‘ordinary’ customary international law, from taking effect where acts of torture form the subject-matter of a case. This had been stated by a narrow minority of the European Court of Human Rights in Al-Adsani v. United Kingdom and previously held to be correct as a matter of international law by a number of American and English judges (Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992); Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 242 (2nd Cir. 1996); Al-Adsani v. Government of Kuwait and Others (England and Wales, Court of Appeal, 1996), ILR 107, pp. 536, 545, 547 (per Ward LJ); these authorities were, however, unanimous in holding that the relevant domestic statutes prevented them from giving effect to this state of international law).
Lord Hoffmann rejected this submission, stating that ‘the question is whether such a norm conflicts with a rule which accords state immunity’ (para. 43) and going on to find (at para. 44) that

‘[t]he jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom [of Saudi Arabia], in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not. As Hazel Fox has said (The Law of State Immunity (2002), 525): “State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite.”’

His Lordship held, therefore, that there simply was no conflict between the prohibition of torture and the rules of state immunity, so that the difference in rank (jus cogens vs. ordinary customary international law) was nothing to the point. This is supported by a much wider body of opinion (see Christian Tomuschat, ‘L’immunité des états en cas de violations graves de droits de l’homme’, Revue Générale de Droit International Public 109 (2005), pp. 51 et seq.; Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens - Some Critical Remarks’, Michigan Journal of International Law 16 (1995), pp. 433, 435), and is, also in my opinion, quite correct.
To once again quote from Lord Hoffmann’s judgment (at para. 45): ‘To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But, contrary to the assertion of the minority in Al-Adsani, it is not entailed by the prohibition of torture.’ As Lord Hoffmann demonstrated in the following part of his judgment, state practice does not testify to any such new exception.
I would therefore agree that jus cogens was quite immaterial to the question of state immunity before the House, and that a state therefore remains immune from legal process in a foreign state even for its violations of jus cogens.

I have much more difficulty, however, with the second holding of the House of Lords, namely that the state officials alleged to have committed the act of torture also enjoyed immunity.
The ground of immunity in this case is obviously immunity ratione materiae, i.e. the immunity of a past or present state official in relation (only) to his or her official acts.
The reasoning of the House was as follows (omitting the considerations of jus cogens, which are obviously as (ir)relevant to this type of immunity as to the immunity of the state itself):
- It is not true that severe crimes by a state official cannot be regarded as acts of the state itself, and thus as giving rise to immunity ratione materiae. This proposition is unsupported by authority, and deviates from the definition of acts of state as accepted in the law of state responsibility.
- There is not sufficient state practice in relation to immunity ratione materiae in civil proceedings to find that customary law allows for an exception from such immunity where severe international crimes are alleged.
- There is accordingly immunity ratione materiae even in relation to acts of torture. This has not been waived by treaty. In particular, while the UN Convention against Torture of 1984 implies, in its provisions on criminal prosecutions, a waiver of immunity ratione materiae (R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 3)[2000] 1 AC 147), no such waiver is implied in any provision on civil liability.

The second proposition appears to be well-established from the review of such authorities as there are in their Lordships’ judgments. This may be because there have been relatively few attempts to bring civil cases in reaction to the most severe crimes known to international law, but however that may be, there certainly is not sufficient evidence available to find that the rule of state immunity has, in part, been displaced.

The first proposition is much more problematic, in that it appears to fly into the face of the judgment of the House in R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 1)[2000] 1 AC 61. However, the House of Lords explained yesterday that it had never held that severe crimes could not be acts of state in the sense of the rule of immunity ratione materiae (Lord Hoffmann, at paras. 86-88), and Lord Bingham doubted (at para. 19) whether Pinochet (No. 1) still possessed any value as precedent, having been set aside for procedural reasons (In re Pinochet [2000] 1 AC 119) and superseded by Pinochet (No. 3). I do not intend to go into this, except to note that the understanding of Pinochet (No. 1) at the time was always that it denied immunity ratione materiae for severe crimes (see only Jill M. Sears, ‘Confronting the “Culture of Impunity”: Immunity of Heads of State from Nuremberg to ex parte Pinochet’, German Yearbook of International Law 42 (1999), pp. 125 et seq.); yesterday’s holding was therefore most surprising, even if it may have been correct, and was obviously within the powers of the House.
However, there is very much more authority for the view that severe crimes do not fall within the scope of application of immunity ratione materiae, for the reason that they are in no conceivable sense ‘acts of state’ as opposed to culpable acts of the individuals. Without giving exhaustive references now, the line of authority begins with the Tribunals at Nuremberg and Tokyo (Annual Digest 13 (1946), pp. 203, 221, and Annual Digest 15 (1948), pp. 356, 362, respectively), and probably ends with the pronouncements of the ICTY in the Milosevic (paras. 27-34) and Kunarac (para. 494) cases. Some pronouncements to this effect are, furthermore, so brief that they must have been intended as a statement of a well-established rule, not as a new or even bold statement (see e.g. The Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (Objection to the Issue of Subpoena Duces Tecum), at para. 41).
True it is that all these authorities related to criminal proceedings, but the holding was in all cases that the private perpetrators of the relevant crimes could not hide behind the attribution of their acts to the state, and that these acts were accordingly, for the purposes of the question of immunity, not acts of state. This does not mean that the acts in question are no longer attributable to the state, and that the state is absolved of responsibility for them. There are, under this reasoning, two quite distinct concepts of an act of state. The one determines the immunity of the individual, the other the responsibility of the state. There is a difficulty here, but this is only in the terminology.
The authorities cited therefore show that there is a category of cases for which the state will incur international responsibility, but not enjoy the benefit of ratione materiae for its servants. This is ultimately a consequence of the law valuing the accountability of individual wrongdoers over the interests of their states in retaining immunity in relation to all their acts.

The definition of this category of cases attaches to the nature of the acts in question, not to the kind of proceedings in which they will become relevant. The principle of the reduction of immunity ratione materiae therefore applies with equal force to civil as to criminal proceedings.
However, some of the Law Lords in Pinochet (No. 3) added obiter that no exception from immunity ratione materiae could ever apply in civil proceedings for damages, reasoning that in such a case, the state would be bound to indemnify its servants for any damages paid by them out of their own pockets. The Court of Appeal in the case decided yesterday by the House of Lords was unconvinced, holding that such a duty of indemnification could not be reconciled with the duty to prosecute acts of torture (at para. 126, per Lord Phillips of Worth Matravers MR; it is a bit strange that the House yesterday overruled a case in which Lord Phillips had retracted his earlier statements – he had been one of the Law Lords in Pinochet (No. 3) I just referred to, but the House yesterday preferred to hold that his earlier statement was in fact correct).
The House added yesterday that the state would be indirectly impleaded by a case brought against one of its servants for his or her official actions, because its responsibility, like that of the official, would be in the nature of a civil liability, so that the English court would, in stating the civil liability of the official, imply also the responsibility of the state for which he or she was acting (Lord Bingham, at para. 31). I am not convinced. The only negative consequence ensuing from a judgment against a state official would be a deleterious effect on the dignity of the state, in that, to any reader of the judgment, the state would appear to be as guilty and liable as the state official. But this effect would be, if anything, greater if it followed from the criminal conviction of a state servant. Besides, the law of state immunity does not protect the dignity of a foreign state: if it were otherwise, it would have to prohibit also all incidental judicial comment on the lawfulness or otherwise of conduct of another state. This is not the case, as appears from cases like Kuwait Airways Corporation v. Iraqi Airways Co (Nos 4 and 5)[2002] UKHL 19, [2002] 2 AC 883 (where the House of Lords refused to recognise effects of the unlawful Iraqi invasion of Kuwait).

I would therefore prefer to think that a state official can be sued for damages for acts of torture committed by him or her in an official capacity.

This result, as a matter of customary international law, would have the added advantage of removing one problem that has already reduced the meaning of Pinochet (No. 3). The reliance there on a waiver by treaty of an otherwise existing immunity, like the recognition yesterday of persisting immunity and the abstract possibility of such a waiver, suffers from the weakness that any waiver will always be limited to its terms, and to the field of application of the relevant treaty.
So far from making any general statement excluding (as I have attempted to show, in line with considerable authority) any immunity ratione materiae in respect of the most severe crimes, the House even stressed that none of its own previous cases had included any such holding.

This must be regretted.

It will be interesting to see whether the question will be taken on to the European Court of Human Rights, and whether it will engage in any thorough review of the questions of general international law. It clearly can do so, the grant of state immunity to a defendant constituting an interference with the right of access to a court inherent in Article 6 (1) ECHR (Al-Adsani v. United Kingdom, at para. 46-49; the House of Lords yesterday doubted the truth of this, preferring the view of Lord Millett in Holland v. Lampen-Wolfe [2000] 1 WLR 1573 that Article 6 was not engaged in such a case. However, this question of applicability clearly also comes under ‘European supervision’ by the Court, so there is no real difference.). This is, under the Al-Adsani approach, justified if international law really does impose such a rule of state immunity, so the European Court is empowered and required to examine the question of state immunity.
There is, in my opinion, good reason to come to a conclusion different from that the House of Lords reached in yesterday’s judgment, as far as the immunity of the state officials is concerned, while the holding as to the immunity of the state itself probably cannot be doubted.

Why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons

2006-06-14T17:59:00.000+02:00

And why I therefore totally agree with the position of the US State Department.

First I want to apologize for my only casual posting in the last few weeks, but as I said, my time schedule is very tight. Despite the fact that this still is the case, I have to comment on two events from last week, the first of which I will address in this post.

Last week I read an interesting Los Angeles Times article by Julian E. Barnes addressing the Pentagon’s plans to omit the norms found in the Geneva Conventions prohibiting humiliating and degrading treatment while formulating the new Army Field Manual on interrogation.

Said tenet of international humanitarian law can be found for example in Arts. 13 and 14 of the 3rd Geneva Convention and, more importantly, in Art. 3 para. 1 common to all Geneva Conventions. While Arts. 13 and 14 address especially prisoners of war, who have to be treated humanely and to be protected particularly against acts of violence or intimidation and against insults and public curiosity, Art. 3 extends the humanitarian protection to conflicts where the Geneva Conventions would otherwise offer no protection at all, namely to internal armed conflicts. In practice, one can see Art. 3 as formulating the cornerstones of humanitarian protection in armed conflicts that have to be adhered to under all circumstances, even in conflicts where the Conventions normally would offer no protection at all (see Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 52 et seq.).

Art. 3 para. 1 reads:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

According to the article, the Pentagon has been redrawing its policies on detainees for more than a year in order to guarantee that all detainees are treated humanely, and that the US will remain able to question them, and soon wants to present a new Army Field Manual on interrogation and certain rewritten DoD Directives, including Directive 2310.1 (Version of 1994) on detention operations.
The attempt to lower the standard of protection below the threshold of Art. 3 goes back to an order by President Bush given in 2002. The order superseded US military policy, which for decades has granted the Geneva Conventions standard to all its detainees.

In the rewriting of the Directive it seems that there has been a dispute between military lawyers and the US State Department on the one side, supporting a resumption of Geneva standards in the US policy towards detainees, and the Bush administration including the Pentagon’s intelligence arm on the other side.

My arguments on why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons begin, not surprisingly, with some legalistic remarks.

The US has to adhere to the Geneva Conventions, simply because they are legally bound to do so. This may seem a Euro-centric or overly positivistic view of the value of international law to the ears of some lawyers favouring a more ‘realistic’ approach; it is supported, however, by the moral value of the norms in question. Morality is an argument often brought forward by the same lawyers who counsel against the strict observance of international law and an argument often stressed when the US is going to war. The US should therefore in every case observe the basic rules guaranteeing the human dignity it so often claims to defend, and in many cases has defended.
Human rights as well as the principles laid down in humanitarian law formulate the cornerstones of an international system protecting human dignity also against the conduct of states. This is especially true for Art. 3 common to all Geneva Conventions laying down the core principles guaranteeing, as far as possible, humane warfare, as was already shown.

But there are other reasons for the US to observe the rules on detainee protection found in the Geneva Conventions, namely the interests of the US itself, as can be seen from the position of the State Department.
The US has come under severe criticism for many of its actions worldwide; sometimes the criticism is justified, sometimes not. In every discussion concerning alleged or proven abuses of the rules of humane behaviour by US forces, for example in Abu Ghraib and lately in Haditha, it is brought forward that said abuses are connected to the general position of the US administration concerning humanitarian principles.
The detention practice of the US is under special scrutiny since the prison at Guantanamo Bay was founded and since the abuses at Abu Graib, and the criticism is especially severe since the three suicides in Guantanamo last week.
It will be hard to maintain the US government’s position that abuses like those in Abu Ghraib are pure aberrations by individual soldiers, if the official directives themselves no longer reflect the minimum standard of humane treatment of prisoners. It will also be no longer possible to take the position that the US forces acting abroad follow the strictest legal standards, a position often taken by the US government, because formal directives would then say otherwise.
Additionally the credibility of the US in cases like the three recent suicides would be even more damaged as it already is.

It has to be noted here that the publication of the directive as well as other rewritten military guidelines scheduled for April has been delayed because a number of US Senators have asserted doubts on the compatibility of certain rules on interrogation with the anti-torture law issued by senator John McCain last year.
As will be apparent by now, I can only hope that these Senators and the State Department will prevail.

The State Secrets Doctrine: In Violation of International Law? (Part 3)

2006-06-13T17:06:00.000+02:00

Having set the scene with some basic remarks on the international rules involved in the first post, and applied these rules to the political question doctrine in the second, I now turn to the state secrets doctrine. This operates where a case involves state secrets, the disclosure of which would adversely affect national security. The doctrine commands that such disclosure must be avoided by all procedural means available to the court; if there is no way of preventing such disclosure, the plaintiff’s case depending totally on classified information, the case must be dismissed (see United States v. Reynolds, 345 U.S. 1 (1953)).
This state secrets privilege would appear to be primarily a rule of evidence, but the term of the ‘state secrets doctrine’ may be given a broader meaning: where a case depends for its cause of action or for its essential facts on classified matters, the case will be non-justiciable (see Totten v. United States, 92 U.S. 105 (1876); Tenet v. Doe, 125 S.Ct. 1230 (2005), and the discussion of the two cases in El-Masri v. Tenet, available here).

I already stated in the introductory post that there is a right of access to a court under Article 14 ICCPR and that a dismissal based on any of the American doctrines is in principle capable of constituting an interference with the right of access to a court. This is borne out by the jurisprudence of the European Court of Human Rights, which decided as much in two cases concerned with state secrets and court proceedings: Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, at paras. 58-63, and in Devenney v. United Kingdom, at paras. 20-22.

Again, this leaves the issue of justification.
It is obvious that there are some state secrets in every state. The considerations of national security behind such secrecy are also a legitimate aim for restrictions on the right of access to a court to pursue (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 76), if the classification of relevant material was ordered in good faith. Nevertheless, where state secrets are not disclosed to a court of law because of these interests, the resulting state of affairs is ‘tantamount to a removal of the court’s jurisdiction by executive ipse dixit’ (i.e. by the executive branch’s own say-so: Devenney v. United Kingdom, supra, at para. 28, citing Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 77). This is not easily acceptable (see also United States v. Reynolds, supra, at 9-10: ‘Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.’).
The right of access to a court therefore demands that the classified information be made available to the court (see El-Masri v. Tenet, supra, where such a possibility under the Classified Information Procedures Act was briefly considered), perhaps with the assistance of special advocates instructed by the court to act on behalf of the parties, while observing the secrecy of the information (see R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, at para. 113, citing with approval Secretary of State for the Home Department v. Rehman [2000] EWCA Civ 168, [2000] 3 WLR 1240, para. 31, where the instruction of such special advocates was regarded as possible even without statutory authorisation, under the inherent jurisdiction of the court; see as to this concept Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528, at paras. 50-53). Alternatively, it may be enough for ‘other mechanisms of complaint’ to be available (Devenney v. United Kingdom, supra, at para. 28), but these would always have to be judicial proceedings before independent and impartial judges (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 77; see also Waite and Kennedy v. Germany (ECtHR), at paras. 68-74).
It would also be permissible in such cases for the court to hold private sessions. While Article 14 (1) (2) ICCPR provides for the right to a ‘public hearing’, public order and national security are explicitly recognized as reasons for excluding the public.

Whatever the solution adopted, the state must always closely examine whether any relaxation of secrecy or adaptation of court procedures can be made in order to secure the right of access to a court at least in part. A court faced with an application in such a case would, for its part, have to examine whether the classification of material had been appropriate (as the court in El-Masri v. Tenet, supra, did); if not, then the legitimate aim of protecting national security would not be engaged, or would not be sufficient to displace the human rights of the private party (see also on this whole issue of judicial oversight in the operation of the state secrets doctrine Jack Balkin’s post at Balkinization; as will appear shortly, I completely agree with his conclusions).
It is furthermore difficult to see how it could be necessary to refuse disclosure even to the judge in chambers (as the US Supreme Court contemplated in United States v. Reynolds, supra, at 10). Disclosing evidence to a judge alone will produce only a very low risk to national security. Furthermore, a court ruling confirming the secrecy of information on certain alleged acts does not imply that such acts have indeed taken place (contra Arar v. Ashcroft, available here, at p. 72 of the PDF file); it means simply that the relevant complex of information is secret. On the other hand, if even the judge in a case is left in the dark, this ‘cannot be said to be conducive to public confidence in the administration of justice’ (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, supra, at para. 78). The disadvantages involved in the disclosure of classified information to a judge therefore seem entirely negligible.
Care must also be taken in defining what interests can give rise to legitimate considerations of national security. This is all the more so since the judge will make his or her decision on this point away from the democratic control inherent in the publicity of court proceedings and judgments, and since the outcome will hide even more information from the watchful eyes of the general public. It is certainly not enough that the information concerned, or the outcome of the litigation following the use of such information, may acutely embarrass the government of the day (see Arar v. Ashcroft, supra, at pp. 71-76 of the PDF file, and the comments on the case by David Luban at Balkinization, some of which he repeated here); embarrassment is simply not a danger to national security (this argument does, however, share some ground with the political question doctrine – which I criticized in an earlier post).
For considerations of national security to be properly brought into play, there must be some concrete information on the effects of any disclosure or decision on the dangers facing the state or the operations of state authorities against such dangers (see Lustig-Prean and Beckett v. United Kingdom, where the ECtHR held (at para. 82) that a state had a certain margin of appreciation on the grounds of national security if there was ‘a real threat to the armed forces’ operational effectiveness’, ‘substantiated by specific examples’).
Of course, there is still a danger that ‘national security’ may be used by the government as a catch-all defence (as Julian Ku suggests it might). This is all the more incentive for the courts to exercise their powers of review extensively and their power of dismissing a case under the state secrets doctrine sparingly. Above all, the courts must take care not to become ‘more executive minded than the executive’ (to borrow the famous phrase from Lord Atkin’s ultimately vindicated [see paras. 139-141 of the linked case] dissent in Liversidge v. Anderson [1942] AC 206).

However, it may be that all this scrutiny and care in allowing for some form of judicial process will lead nowhere if properly classified information is so central to a given case that the court could not possibly decide the case, except by extensive reference to the classified material. This would be the case where the cause of action (e.g. a contract) is itself a state secret (as in Totten v. United States, supra), or where the facts complained of in a tort action are completely secret (as in El-Masri v. Tenet, supra). This is where push really comes to shove, as it were, that is to say, where the opposition of state secrets and the right of access to a court is at its most dramatic. In such cases, legitimate reasons of national security may possibly outweigh the right of access to a court enjoyed by a private party to a court case.

The state secrets doctrine may therefore be permissible, so long as the dismissal of the case is only resorted to where no other means of protecting properly classified material is available, and the propriety of treating material as secret is duly considered by the court.

The Political Question Doctrine: In Violation of International Law? (Part 2)

2006-06-12T13:54:00.000+02:00

I now turn to the application of the right of access to a court to the political question doctrine, having set out the basic points about the right in Part 1 of this sequence of posts. I add only very briefly that another case was recently thrown out by the D.C. Circuit, based on the political question doctrine. Much like Schneider v. Kissinger, so also this latest case, Gonzalez-Vera v. Kissinger, concerned US support for General Pinochet (see also Julian Ku’s post on the case at Opinio Juris).

But first, some more detail on the doctrine itself is in order. The leading case on the doctrine is Baker v. Carr, 369 U.S. 186 (1962), and, as the Court later said when quoting from the Baker Court’s analysis, ‘[t]he synthesis of that effort is found in the following passage in the Court’s opinion’ (Davis v. Bandemer, 478 U.S. 109, 121 (1986), quoting from Baker v. Carr, 369 U.S. 186, 217 the passage I  now set out here):

‘Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.’

I have (like the Circuit Court in Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file) added the numbers to show more clearly the distinct ‘Baker factors’ (INS v. Chadha, 462 U.S. 919, 942-43 (1983)). While these may, at first sight, seem easy enough to apply, it has been recognized that ‘the contours of the doctrine are murky and unsettled’ (Bancoult v. McNamara, quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (opinion of Bork, J.); Julian Ku’s blog post on Bancoult is entitled ‘The Ever Murky Political Question Doctrine’).
Nor is it entirely clear quite what the consequences are of an application of the political question doctrine: while Baker v. Carr had insisted that the doctrine went to justiciability and not to jurisdiction (at 198-204), the lower court in Schneider v. Kissinger and Bancoult v. McNamara put the matter under the heading of jurisdiction. This may be supported by later Supreme Court cases (Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)) but I prefer not to express a view on this. It is sufficient to note, for present purposes, that the doctrine puts an end to a case, one way or the other.

So, returning now to international human rights law, is the right of access to a court infringed by a dismissal on the basis of the political question doctrine?

I already stated in the introductory post to this topic that the doctrine does not rest upon public international law and that even if it did, this would not make the right of access to a court inapplicable.

But there is another point on which the applicability of the right of access to a court, and the infringement of that right, may be open to doubt: it has been held that political questions do not present a ‘case or controversy’ within the meaning of Article III of the US Constitution, circumscribing the extent of the judicial task (Flast v. Cohen, supra; Schlesinger v. Reservists to Stop the War, supra). If this definition were accepted as valid, then it might be said that the operation of the doctrine does not infringe the right of access to a court, but merely defines what it is that courts can be called upon to do.
It should be noted in this regard that there is an infringement of the right of access to a court if ‘rights and obligations’ (Article 14 (1) (2) ICCPR) cannot be brought before a court. The right of access to a court therefore demands (absent justification) that all disputes involving such ‘rights and obligations’ be capable of judicial settlement. The above question must therefore be rephrased: the question under Article 14 ICCPR is not whether the courts are recognised as institutionally competent in relation to a given question. The question is only whether ‘rights and obligations’ are at issue; if they are, then the dismissal of such a case would be an infringement of the article.
There must therefore be a legal question, and this must concern the ‘rights and obligations’ of a person. This can clearly be the case, even if the questions raised are of keen political interest. As, for example, the International Court of Justice has stressed time and again, there is a marked difference between legal questions, which may be of political interest, and purely political questions. While courts cannot decide the latter variety of questions, the former category does present legal questions, and therefore falls within the purview of a court of law (see Christian Tomuschat, in Andreas Zimmermann/Christian Tomuschat/Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: Oxford University Press, 2006), Art. 36 MN 12-14 – or pp. 598-99, for those readers unfamiliar with the citation of commentaries by marginal numbers).
This means that only one category of cases falling under the political question doctrine does not disclose an infringement of the right of access to a court: if there is ‘a lack of judicially discoverable and manageable standards’ (Baker v. Carr, supra, at 217), then there is no legal question, and no ‘rights and obligations’ are concerned (compare Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 230 (1986):  ‘The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.”’ The Court went on to hold (ibid.) that the case at bar ‘calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below.’)
But Baker also established other categories, each of which would give rise to non-justiciability (see Gonzalez-Vera v. Kissinger, supra, at p. 6 of the PDF file). If a court refuses to hear a case, for instance, because of its ‘respect due coordinate branches of government’ or ‘the potentiality of embarrassment from multifarious pronouncements by various departments on one question’, there is a legal question, and if this concerns someone’s ‘rights obligations’ in the sense of Article 14 (1) (2) ICCPR, the dismissal infringes the right of access to a court.

This leaves the somewhat thornier issue of justification. The right of access to a court is an implied right, and the ECtHR has, with its considerable experience in the application of this right, allowed quite a number of exceptions.

It is clear that no justification on the grounds of general international law is available. The ECtHR held in Al-Adsani v. United Kingdom, and again in Kalogeropoulou and Others v. Germany and Greece, that the limitation of the right of access to a court on the grounds of sovereign immunity was permissible so long as public international law really did impose such a duty of judicial abstention on the forum state. However, it has already been stated that the political question doctrine is not based on rules of international law.

There therefore remains the question whether the considerations of domestic law relevant to the doctrines may serve as a justification for their limits on the access to a court.
While it is clear that domestic law, of whatever status, can never conclusively determine a question of international law (see Articles 3, 32 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10, pp. 74, 231), the right of access to a court may be limited by domestic law, if such limitations pursue a legitimate aim and there is ‘a reasonable relationship of proportionality between the means employed and the aims sought to be achieved’ (Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (ECtHR), at para. 72). These limitations must not ‘restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (ibid.).

I have already said that even cases involving political questions, in the sense of the political question doctrine, may raise legal questions, and that the right of access to a court demands that all disputes involving the ‘rights and obligations’ of a private person be capable of judicial settlement. In my opinion, this puts paid to most of the arguments in favour of the American doctrine, in that international human rights law specifically rejects the notion that political questions must always fall outside the ‘institutional competence’ (Bancoult v. McNamara, supra) of the courts.
Thus, in effect, the right of access to a court determines a part of the separation of powers by requiring that legal disputes involving the ‘rights and obligations’ of a private person come within the institutional competence of the courts. The fact that the US Constitution does not conform to this, prescribing as it does a different boundary between the judicial branch and the other branches of government, accordingly cannot be taken as a justification. It is no more than the fact of the (potential) violation.
Therefore, while the political question doctrine stands firm in US constitutional law, it frequently cannot be squared with the present state of international law. It has, one might say, been overtaken by events.

Now what does all this amount to? The answer is: not much. US courts regard the ICCPR as non-self-executing (Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003)), so they are in no position to apply it (this raises some interesting, and similarly heretic, questions in itself, but since the ICCPR does not require that it is incorporated into domestic law and applied by domestic courts (compare Silver v. United Kingdom [ECtHR], at para. 113 [d]), these questions relate not to international law, but to the US Constitution. I therefore, for my part, abstain from pronouncing on this). So, even if my analysis was correct, nothing is even remotely likely to change.
However, there remains the point (albeit only of academic interest at most) that the United States will in many cases violate international law through the application of the political question doctrine.

It is on this basis that I will address the state secrets doctrine and the act of state doctrine in subsequent posts.

The Political Question Doctrine et al.: In Violation of International Law? (Part 1)

2006-06-09T14:49:00.000+02:00

US courts have recently dismissed quite a few cases as non-justiciable. While these cases may not have a great deal in common otherwise, it is clear that the dismissals prevented the plaintiffs from obtaining judicial relief. It is this aspect that has got me thinking about the compatibility of the various doctrines with international human rights law, and, specifically, with Article 14 (1) (2) of the International Covenant on Civil and Political Rights (ICCPR), which the United States have, of course, ratified (unlike, obviously enough, the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), to which I will nevertheless refer for guidance, the two instruments being very similar).

But first, a very quick summary of the latest cases: a claim in relation to US support for General Pinochet’s coup d’état in 1970 was dismissed as presenting a political question (Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005); see also the blog post on this case by Roger Alford at Opinio Juris), as was a case by the former inhabitants of the island of Diego Garcia, which is now used as a US military base and from which the inhabitants were, prior to the installation of that base, expelled (Bancoult v. McNamara, available here; see also the blog post by Julian Ku at Opinio Juris – I am obviously indebted to Opinio Juris for information on all these cases).
Most recently, a case against the Club Med relating to the use of land expropriated by Cuba in 1960 was thrown out by the 11th Circuit under the act of state doctrine (Glen v. Club Mediterranée, available here; see also, again, Julian Ku at Opinio Juris).
Similarly, a law suit by a German citizen who claimed to have been subjected to the programme of ‘extraordinary rendition’ allegedly pursued by the US administration (i.e., to have been kidnapped and removed for interrogation) was thrown out by a US District Court because it would otherwise have led to a disclosure of state secrets (El-Masri v. Tenet, available here; Julian Ku has kindly commented also on this case).

I will now elaborate on whether the operation of these doctrines involves a violation of Article 14 (1) ICCPR, dividing the whole subject into five posts: this one will attempt to clear up a few basic human rights issues, the second one will address specifically the political question doctrine, the third the state secrets doctrine, and the fourth post will address the act of state doctrine, while the fifth and final post will briefly consider ways around the legal difficulties identified in the earlier posts.

I realize that some may think of the proposition that these time-honoured doctrines may violate international law as heresy of the highest order, but the idea is not entirely without authority, albeit from the United Kingdom: English law knows of its own limitations on justiciability, one of which generally prevents courts from deciding on the meaning of international treaties, unincorporated into domestic law, and another of which prevents courts from ‘adjudicat[ing] on the transactions of foreign sovereign states’ (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA 1116, [2006] 2 WLR 70; the quotation is from Lord Wilberforce’s speech in Buttes Gas Oil Co. v. Hammer [1982] AC 888). When it was submitted to the House of Lords that the operation of these doctrines would violate Article 6 ECHR, Lord Hoffmann said that there seemed to him ‘to be much force in this submission’ (R v. Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, at para. 67; the question did not arise squarely for decision; a submission to the same effect was recorded, but not decided by the Court of Appeal in Republic of Ecuador v. Occidental Exploration and Production Co., supra, at para. 49).
When, similarly, the question was put to the House of Lords whether the possibility of judicial review was to be taken seriously where state secrets limited the court’s power of review, Lord Hutton noted that Article 6 (1) ECHR would require the court to adapt its procedure in order to be able to perform its function of judicial review; the presence of state secrets as such could therefore not be allowed to displace the court’s jurisdiction (R v. Shayler [2002] UKHL 11, [2003] 1 AC 247, at paras. 108-114; see also Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom (European Court of Human Rights [ECtHR]), at paras. 76-79; Devenney v. United Kingdom (ECtHR), at para. 27). (There may be similar sources of authority in US law, but as I don’t know them, I must hope for some comments in this regard)

Article 14 (1) (2) ICCPR provides for the right to a fair trial. This provides, in the first place, for certain minimum guarantees applicable to an already pending court case. These are not violated by the dismissal of a lawsuit as such, unless there is some decisive unfairness in the proceedings leading to the dismissal. Thus, there is no express provision on a right to submit legal disputes to judicial settlement. But it is also well known that the ECtHR held as early as 1975, in Golder v. United Kingdom, that the right to a fair trial encompasses also the right of access to a court. The Court held (at para. 35) that it was ‘inconceivable (…) that Article 6 para. 1 (…) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.’
This right is clearly capable of being infringed and violated if a suit is dismissed.

As regards the ICCPR, there is some danger of confusion, due to there being two rights of access to a court. The first is the right of equal access to court, a necessary consequence of the right of equality before the courts provided for in Article 14 (1) (1) ICCPR (see e.g. General Comment No. 13 of the Human Rights Committee, at para. 3). This is patently not concerned where a lawsuit is dismissed on the grounds of a lack of justiciability or jurisdiction under any of the doctrines mentioned, so long as these doctrines are applied without discrimination, which they certainly are.
But the practice of the Human Rights Committee also shows the existence of another, more general right of access to a court, derived from Article 14 (1), read together with Article 2 (3) of the ICCPR (see e.g. Evans v. Trinidad and Tobago, Comm. No. 908/2000, at paras. 6.5, 6.6). There may be some uncertainty as to whether this right applies to all lawsuits or only to those contemplated by Article 2 (3) ICCPR, i.e. suits for alleged violations of the Covenant, but this is irrelevant at least to a number of cases dismissed under the various doctrines; El-Masri springs to mind.
Besides, the reasoning of the ECtHR in Golder, quoted above, is easily transposable to the ICCPR. While it might be argued that the wording of Article 14 (1) (2) ICCPR, ‘rights and obligations in a suit at law’, suggests more of a limitation to an ongoing case than does the phrase ‘civil rights and obligations’ in Article 6 (1) ECHR, the addition of the words ‘in a suit at law’ more likely was intended to convey the application to courts only, as opposed to the determination of certain civil rights by administrative bodies, as well as the notion of civil rights and obligations. The notion of the right of access to a court, developed by the ECtHR nearly 9 years after the adoption of the ICCPR, was certainly not on anyone’s mind. In addition, the reasoning in Golder in no way depended on any permissive wording in the article; it proceeded from the guarantees applicable to an ongoing court case, and held that these implied a right to set these guarantees in motion by instituting a case.
I would therefore think that there is a right of access to a court in the terms of Golder also under the ICCPR.

It remains to be seen how the doctrines on justiciability I mentioned can be reconciled with this right – if at all.

It should first be observed, with regard to all these doctrines, that the right of access to a court is also engaged (i.e. may be interfered with by a dismissal), if the dismissal is on grounds that may be described as external to the court, as, indeed, to the whole state (it is, of course, a commonplace that Article 14 ICCPR places obligations not only on the court concerned, but on the state as a whole: see Article 2 (1) ICCPR and compare Guincho v. Portugal (ECtHR), at para. 38).
In this sense, the ECtHR has held that it infringes the right of access to a court to dismiss a case, even if this dismissal is commanded by sovereign immunity (see Al-Adsani v. United Kingdom, at paras. 46-49; repeated in Kalogeropoulou and Others v. Greece and Germany), i.e. by customary international law which the state has no choice but to follow (this goes to the justification of the infringement).
However, the doctrines applied in the American cases cited do not follow from public international law (see Baker v. Carr, 369 U.S. 186, 210 (1962): ‘The nonjusticiability of a political question is primarily a function of the separation of powers.’; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964): ‘We do not believe that this doctrine is compelled (…) by some principle of international law.’), unlike the rules on sovereign immunity at issue in Al-Adsani, and they can in no way be described as external to the United States.
Still, Al-Adsani and Kalogeropoulou show that the presence even of good reasons for a dismissal does not mean that there is no interference with the right of access to a court.

Some other issues are specific to the various doctrines, and will be considered in the following posts.

Warm welcome to the international law blogosphere...

2006-06-09T10:12:00.000+02:00

… to “International Law, Legal Theory and more”, a new blog by Israeli/American scholar/attorney Maja Steinitz.

More new developments in the Lubanga Case - Defence Motion for Release of the Accused

2006-05-24T17:50:00.000+02:00

Exciting new developments in the trial of Thomas Lubanga – after having hinted at the possibility once or twice before, Jean Flamme, Mr. Lubanga’s Belgian defence lawyer, has yesterday file a motion requesting the release of his client.

To – very, very quickly – summarize the motion, Maitre Flamme claims that the arrest and detention of Thomas Lubanga in the DR Congo (from where he was directly transferred to the ICC) were illegal and that this illegality has tainted the proceedings before the ICC in a way that mandates the immediate release of his client.

I will hopefully find the time to go into some more details regarding this question later. For now, let me only note one interesting fact:
As authority for the notion that the illegality of the detention in the Congo is also opposable to the ICC, the motion refers to three decisions – two decisions of the European Court of Human Rights on the concept of “continuing violations”, as well as the ICTR Appeals Chamber’s 3 November 1999 decision in the Barayagwiza case. There, the Chamber, faced with a claim of illegal rendition, had decided to dismiss the indictment and order the immediate release of the accused (while also directing the registrar to deliver the accused to the authorities of the state where he had originally been held). However, what Maitre Flamme fails to note is that in a later decision of 31 March 2000, based on the Prosecution’s (procedurally rather questionable) “Request for Review or Reconsideration”, the Chamber changed this decision and decided that the trial of Barayagwiza should proceed after all, only instructing the Trial Chamber to take into account the illegal rendition in the sentencing phase or to order financial compensation if the accused was found innocent. In the end, Barayagwiza was found guilty and his sentence was reduced from life imprisonment to 35 years (see the judgment at paras. 1106–07).

AFAIK, the ICTY, while also faced with claims (and acknowledged instances) of illegal rendition, has also not ever ordered the release of an accused. It remains to be seen how Pre-Trial Chamber I will deal with this important question.