We've moved

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

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

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

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

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?

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...

... 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 ?

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

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

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

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

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

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)

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.

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

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.