Thursday, March 30, 2006

English Court of Appeal holds that the Security Council has displaced the ECHR

Another English case, and what a remarkable decision it is: the English Court of Appeal (Brooke, May and Rix LJJ) decided yesterday that the Security Council has, by adopting SC Res. 1546 and authorising the Multinational Force to intern people for reasons of national security, displaced the guarantees of Article 5 ECHR, which would otherwise have availed anyone so interned by British soldiers: R (Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327.

I already referred to the case and to the problems raised in it in a previous post, on the complaint brought by Saddam Hussein before the European Court of Human Rights. I now return to the issue, as I promised to / threatened to / said I would do.
I feel I should report again the facts and the issues of the case, before turning to the solution chosen by Brooke LJ in his leading judgment (May and Rix LJJ agreed with Brooke LJ’s judgment). I therefore now quote from my earlier post, and apologise for the repetition:

‘In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:
”Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).”
Accordingly, the Security Council gave coalition forces the power to undertake “a broad range of tasks to contribute to the maintenance of security” in Iraq.’ Only the power to order a person’s ‘internment where this is necessary for imperative reasons of security in Iraq’ is relevant to the case of Mr Al-Jedda, who was detained under this power.

The question therefore arises, and was put to the High Court and to the Court of Appeal, whether this power of the United Kingdom enjoyed precedence over any other conflicting treaty arrangements, as provided for in Article 103 of the UN Charter. This article provides as follows:

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

It is to be noted that the article speaks only of ‘the obligations of the Members of the United Nations’ (emphasis added) and not also of their powers. This point was one of the cornerstones of Mr Al-Jedda’s arguments.
The High Court rejected this argument on the grounds that the Security Council cannot have intended the scope of its authorisation to vary depending on whether and to what extent the various states forming the Multinational Force were bound by human rights treaties.
Without rejecting this approach, Brooke LJ in the Court of Appeal took a different route: he referred to the commentary on Article 39 of the UN Charter by Professor Frowein and Dr Krisch in Charter of the United Nations – A Commentary, 2nd edition, edited by Prof (and now Judge) Bruno Simma and others, at p. 729 (Art. 39 MN 33), where it is explained that measures taken by the Security Council under Article 42 of the UN Charter were originally intended to be carried out by the UN itself, using troops provided for that purpose by the member states. Of course, it never came to this, and the Security Council has instead authorised member states to carry out military operations themselves, within a mandate granted by the Council. Therefore, so Professor Frowein and Dr Krisch argue, the effect of the authorisations granted must be assimilated to action taken by the Council itself, and Article 103 must therefore apply not only to ‘obligations’, but also to such authorisations.
Brooke LJ (at paras. 69, 74) directly applied this opinion to the case before him, implying that the alternative to the authorisation expressed in SC Res 1546 would have been for the Council to carry out the military operations through troops put at its own disposal.

I would respectfully agree that Article 103 of the Charter must be considered as applying also to authorisations by the Security Council, but the reasoning offered by Professor Frowein and Dr Krisch does not seem to be properly applied to the case at hand: Article 42 of the Charter speaks of ‘such action by air, sea or land forces as may be necessary to maintain or restore international peace and security,’ but in so doing it clearly refers not to just any action by military units, but specifically to enforcement action ‘against a State’: see the explanations of Prof Frowein and Dr Krisch at p. 754 (Art. 42 MN 12) of the Simma Commentary. Indeed, the Appeals Chamber of the ICTY clearly stated that ‘these [measures under Article 42] are measures of a military nature, implying the use of armed force’ (The Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 33; it is clear that ‘armed force’ in this statement means force used against a state, not against a person).
The authorisation granted by SC Res 1546, relevant to this case, would therefore appear to be based on Article 41 of the Charter (Brooke LJ said at para. 59 that Article 41 was ‘not material to this appeal’).
This difference would seem to be without any consequences, as it is at the very least arguable that Article 103 of the Charter applies also to authorisations of the Security Council under Article 41; in particular, the reasoning of the High Court appears to be rather attractive: the Council’s authorisation was to the Multinational Force, not to the states making up the Force individually. There is therefore much force in the argument that the authority to be conferred was intended to be the same for all participants of the Force. Besides, any other interpretation would mean that there would have mean one particular extent of powers in one area of Iraq, and a very different set of powers in another area, controlled by a different state. This does not appear likely to have been the intention of the Security Council.
This interpretation would also take care of the argument that the resolutions of the Council must be interpreted so as not to interfere with recognised human rights. This is probably true, as it may be deduced from the – admittedly somewhat unspecific – references to human rights in the Charter (in the preamble and in Articles 1, 55 and 56), but it is only a rule of interpretation and must in this case yield to the other considerations.

The Court of Appeal did not consider whether SC Res 1546 infringed jus cogens. Any such conclusion would probably have meant that the resolution was ultra vires, and that not only international jus cogens, but also Article 5 ECHR, would have remained unaffected, for the simple reason that the resolution would have been void (see Alexander Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, European Journal of International Law 16 (2005), pp. 59, 82-84).
It may well be that the prohibition of arbitrary detention has achieved the status of jus cogens (see The American Law Institute (ed.), Restatement of the Law, Third, The Foreign Relations Law of the United States, vol. 2, 1987, p. 175), but SC Res 1546 has not gone so far as to allow this. The detention of Mr Al-Jedda was regularly reviewed, it was based on the conditions stated in the resolution and in the letters attached to it, including the adherence to the law of armed conflict.

I would therefore think that the Court of Appeal was right to uphold the power of the Security Council to qualify the protection afforded by Article 5 ECHR.    

DoD Agrees to Issue Abu Ghraib Images

The US Defence Department (DoD) on Tuesday withdrew an appeal challenging a US District Court Order of 2 June 2005, which requires the US Government to turn over to civil rights groups 74 photographs and three videotapes showing abuses at Abu Ghraib prison. The exact wording of the Stipulation and Order of Dismissal of Appeal by the Court of Appeals for the Second Circuit shows that the parties have agreed on the circumstances of the DoD’s execution of the order by Judge Alvin K. Hellerstein.

The order was the sequel to a lawsuit under the US Freedom of Information Act filed against the DoD by the American Civil Liberties Union (ACLU) and other civil rights groups in October 2003 in order to get hold of documents related to abuse of detainees held in U.S. custody abroad. Said lawsuit has, according to ACLU, resulted in the release of more than 90,000 document pages. (For more information on the original proceeding see the ACLU News page) Most of them were duly released by the government, which, however, until now opposed the specific request relating to said photographs and videotapes.

What is especially interesting from the perspective of international humanitarian law is, that in its opposition brief of 30 March 2005 and in two expert declarations (one by Edward R. Cummings, one by Geoffrey S. Corn), the DoD argued that turning over visual evidence of abuse would violate the United States’ obligations under the Geneva Conventions (all documents available from the related ACLU page).
Next to the fact that the US Government invoked the Geneva Conventions, the first thing of interest is that the parties agreed on the applicability of the Geneva Conventions.
The question on the interpretation of the norms of the Geneva Convention seems to be even more interesting. The relevant articles in the Third Geneva Convention obviously are Article 13, 14 and 27. Art. 13 states that prisoners of war "must at all times be protected […] against insults and public curiosity", Art. 14 entitles prisoners of war to "respect for their persons and their honour," while Art. 27 provides for the protection of all protected persons against, inter alia, public curiosity.
The protection of the prisoners against public curiosity also was the main line of argumentation of the US Government, which was obviously declined by Judge Hellerstein, who followed the argumentation of the ACLU which was as follows:
There is a major interest of the public to know of the abuses of prisoners by US officials, even to see all the existing pictures, and therefore the government is under an obligation to publish said pictures because of the Freedom of Information Act.
The publication could possibly be problematic under the Geneva Convention, but the problem could definitely be solved by modifying the photographs to render the subjects unidentifiable.

Now that the DoD has withdrawn its appeal, this position seems to be the accepted interpretation of both the Freedom of Information Act and the Geneva Convention.

See also at and the News at ACLU for more information.    

UK House of Lords Decides on the Crime of Aggression

The UK House of Lords yesterday gave judgment in a very unusual case, which had their Lordships delve deep into international law, raising as it did the question whether there was a crime of aggression in international and English law: R v. Jones (Margaret) [2006] UKHL 16.

First, the facts of the case(s): shortly before hostilities began in Iraq in 2003, the appellants entered bases of the Royal Air Force (RAF Fairford) and other military installations and committed acts of criminal damage there, intending to disrupt preparations for a war which they felt was illegal. All were consequently charged with several offences, among them criminal damage, conspiracy to cause criminal damage, aggravated trespass and attempted arson.
Their defence was based on provisions in the relevant criminal enactments and stated that the appellants had been acting to prevent a crime, namely the international crime of aggression that was about to be committed by the United Kingdom and the United States of America, as well as their respective organs.
The trials on these charges have not yet taken place, but the question of whether there was such a crime under international and English law, and the question of its justiciability, went through the hierarchy of the English courts as a preliminary question, to be settled before the trial proper could commence.

The House of Lords was therefore required to decide whether the crime of aggression existed in English law. Several routes by which this could have happened were put to the House, all of which proceeded on the assumption that there was such a crime under customary international law.

Basing itself to some extent on the Nuremberg Charter and on the judgment of the International Military Tribunal at Nuremberg, the House clearly held that the crime of aggression existed in customary international law.
In doing so, the Law Lords did note, of course, that the crime of aggression was and remained the subject of very considerable debate and disagreement in the international community, and that the International Criminal Court is not presently competent to deal with it (Article 5(2) of the Rome Statute provides that the ICC shall not exercise its jurisdiction over the crime until it has been defined), but this was not decisive.
Lord Bingham of Cornhill stated in this regard:

‘It is true that some states parties to the Rome statute have sought an extended and more specific definition of aggression. It is also true that there has been protracted discussion of whether a finding of aggression against a state by the Security Council should be a necessary pre-condition of the court’s exercise of jurisdiction to try a national of that state accused of committing the crime. I do not, however, think that either of these points undermines the appellants’ essential proposition that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.’

Lord Hoffmann made the same point when he said:

‘It is true that there is at present no consensus about the circumstances in which the International Criminal Court should exercise its jurisdiction to try the crime of aggression and in particular whether the imprimatur of the Security Council should have to appear on the indictment. But I think that upon analysis it will be found that these disputes are not about the definition of the crime but about the circumstances in which the International Criminal Court (as opposed to some domestic or ad hoc international tribunal, such as the International Military Tribunal at Nuremberg) should try someone for committing it. Of course the definition of a crime so recent and so rarely punished will have uncertainties. But that is true of other crimes as well. If the core elements of the crime are certain enough to have secured convictions at Nuremberg, or to enable everyone to agree that it was committed by the Iraqi invasion of Kuwait, then it is in my opinion sufficiently defined to be a crime, whether in international or domestic law.’

The approach is therefore that a crime is not ill-defined in its entirety and therefore incapable of supporting charges, convictions and sentences if only parts of it remain unclear. The core of the crime remains well-defined and an act falling under it remains criminal, no matter what the case may be in other situations which may fall under disputed parts of the definition. A similar approach appears to have been taken by the House of Lords to a criminal offence at common law: R v. Rimmington [2005] UKHL 63, [2005] 3 WLR 982.

The conclusion that the crime of aggression existed under customary international law (also supported by Lord Mance at para. 99) was not, however, decisive. For the defences raised by the appellants to be arguable, the crime averted by their offences had to be one under English law.

It was, at least broadly, accepted that customary international law formed part of English law (Lord Bingham, at para. 11, saw some force in the submission that international law was not so much part, as one of the sources of English law; the matter did not arise for decision). However, it did not follow that customary international law could therefore automatically, i.e. without the need for any domestic enactment, create new criminal offences. This proposition was unsupported by authority (Lord Bingham, at para. 23), contradicted by the previous practice of transposing offences under international law into English law by means of a statute (Lord Bingham at para. 28), and it would create grave problems of legal certainty (Lord Bingham, at para. 23). Also, the rule by which questions of the legality of acts of a foreign state would in principle be non-justiciable (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA Civ 1116, [2006] 2 WLR 70, as recent and exhaustive authority) was another factor suggesting that the crime of aggression could not be considered as a crime under English law (Lord Bingham, at para. 30; Lord Hoffmann, at paras. 63-67, Lord Mance, para. 103).

The other arguments brought forward by the appellants also failed: the defences relied on by the appellants could not be interpreted to extend also to the prevention of crimes against international law, and English law could not be shown to itself know of any crime of aggression. As to the latter point, it is, of course, to be noted that English courts do not retain any power to create new offences: Knuller (Publishing, Printing and Promotions) Ltd v. Director of Public Prosecutions [1973] AC 435; see also Lord Hoffmann, at paras. 60-62 of his speech in Jones).

For all these reasons, the challenge by the appellants failed, and the defences concerned will not avail them at their trials (nor would they have been available if there had been any English crime of aggression, as the right of self-help reflected in the defences concerned was also held to be of a subsidiary nature; recourse to help from the police or the courts would, wherever possible, take precedence: Lord Hoffmann, at paras. 73-88).
What is perhaps more, the appellants have also failed in their attempt to have the House of Lords (or, for that matter, the other English courts) pronounce on the legality or otherwise of the Iraq war. It may be doubted whether this was their principal aim, but it will certainly have played a role in their raising this particular defence.

However, the House clearly held that a crime of aggression existed, if not in English law, then nevertheless certainly in international law. This should be welcomed.

Postscript on Civil Wars

After I posted on the question of whether there is a civil war going on in Iraq or not a few days ago (and edited the post twice), it seems that I became more attentive to the internal conflicts going on in the world that are or are near to civil wars.
I looked a little bit more curiously into the news and found it utterly devastating how many conflicts there are on a scale like the one in Iraq, more or less qualifying as civil wars. We live in a world of conflicts and I think one has to bear that in mind when writing about questions of international humanitarian law, human rights and international criminal law.

In the last few days, my attention was called for example by the fighting between rival militias in Mogadishu, Somalia, going on around 23 March, which was covered on The fighting obviously went on between two militias, the Alliance for Peace and the Fight Against International Terrorism and the Islamic Court Militia; over 70 people died in the fights of two days alone, and 100 were wounded. I think the legal situation there is as complicated as the one in Iraq but the conflict seems to be more openly fought.
The fighting in Nepal is covered by a Human Rights Watch report released two days ago. There, Maoist rebels and government forces are engaged in a conflict that seems to spiral out of control, and which clearly qualifies as a civil war.
The same is obviously true for the situation in Myanmar, covered in this ReliefWeb article, where the military has since February been acting with brute force, obviously in an attempt to prevent a supposed attack on the junta’s new capital by the Karen National Union.

And all THAT is only from some reports from the last 7 days!

Tuesday, March 28, 2006

Navelgazing post (Bjoern)

Apologies to our readers for intermittent posting in the last weeks – I was busy with an application process, which has lead to great results for me: For the next six months starting April 3rd, I will be clerking for Judge Hans-Peter Kaul at the International Criminal Court.

Expect more light blogging for the next two weeks or so as I search for accommodation and become accustomed to my new surroundings. After that, I hope to be able to bring you an inside perspective on what’s going on at the ICC (within the limits prescribed by my confidentiality agreement etc., needless to say).

Sunday, March 26, 2006

The US Defense Department's considerations on evidence obtained through torture

According to some reports in the US media, the US Defense Department is considering whether to make a formal rule, or has already made the rule, to the effect that the Military Commissions established to deal with the criminal indictments against the detainees at Guantánamo Bay may not use evidence obtained through torture. According to the reports, a senior Pentagon spokesman has said that the commissions would never have treated such evidence as admissible anyway, but that the proposed rule was designed to ‘eliminate any doubt in people's mind that the Convention Against Torture, specifically Article 15, is applicable to these commissions at Guantánamo.’

Specifically, Article 15 of the UN Convention against Torture of 1984 provides as follows:
‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’

This makes clear that no statement extracted by torture can ever be admissible in any court of law, regardless of where and by whom it has been so obtained. Indeed, this point was affirmed with very considerable force by a recent judgment of the UK House of Lords (A v. Secretary of State for the Home Department [2005] UKHL 71, [2005] 3 WLR 1249).
There, the House of Lords had to rule on whether the use of statements extracted by torture was permissible in proceedings before the UK Special Immigration Appeals Commission, for which a legislative provision stated that it would not be bound by the ordinary rules of evidence under English law. This is clearly a similar situation to that existing with regard to the United States’ Military Commissions.
The House was unanimous in holding that there was a rule of English common law excluding all statements made under torture from all proceedings before any judicial body. This followed from the revulsion of torture which the common law had held at least since the 17th century. It was also very forcefully decided that the statutory rule freeing the Special Immigration Appeals Commission from the usual rules of evidence, such as the hearsay rule, could not have the effect of displacing the principle of common law against statements obtained by torture. The rule was far too fundamental for this to be possible. Considering that the Court of Appeal had taken a different position below (A and Others v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 WLR 414), Lord Bingham of Cornhill added (at para. 51):

‘I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.’

The United States would be well advised to take the same position.

For one thing, US law has inherited the attitude to torture which has prevailed in England since well before US independence (perhaps surprisingly, even Justice Scalia’s dissent in Roper v. Simmons may be read to allow for US courts having regard to such old rules of English law).
In fact, some members of the House referred specifically to the United States in their speeches. Lord Hoffmann’s remarks are clearly the boldest in this respect; making the point that torture was always ‘dishonourable’, his Lordship said (at para. 82):

‘In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal “rendition” of suspects to countries where they would be tortured (...).’

The Economist later reported that this snide remark had ‘left the Bush administration fuming’ (issue of 16 December 2005, at 40).

Lord Hope of Craighead for his part recounted an instance of ‘extraordinary rendition’ that occurred between England and Scotland in 1684, and added (at para. 107):

‘There is a warning here for us. “Extraordinary rendition”, as it is known today, is not new. It was being practised in England in the 17th century.’

Furthermore, the House also referred at some length to the relevant rules of international law, specifically Article 15 of the UN Convention against Torture, and was very clear that the Convention required the conclusion reached by their Lordships under the common law (Lord Bingham of Cornhill, at paras. 35, 52; Lord Hope of Craighead, at para. 112).
Furthermore, the use of statements made under torture clearly also violates the right to a fair trial, guaranteed in Article 6 ECHR and Article 14 ICCPR (Lord Bingham of Cornhill, at para. 52).

The House was divided on whether evidence would also be excluded if there was only a real risk, but no firm evidence, that the witness statement concerned had been procured by torture. This problem is clearly quite relevant in the war on terror, where information may have been provided by foreign states, and where many hold such strong feelings against terrorist suspects that incidents of torture cannot be excluded in anti-terror operations and interrogations (this may not, however, be relevant to the charges of torture relating to Camp Delta at Guantánamo itself).
A narrow majority ruled, based on the wording of Article 15 of the UN Convention, that a statement would have to be ‘established (...) to have been made as a result of torture’ (Article 15). This argument is highly convincing as far as Article 15 is concerned, but the right to a fair trial may be another matter. There, the arguments advanced by the three most senior Law Lords remain to be considered. They believed that the exclusionary rule found would be rendered meaningless if it depended on the knowledge that torture had in fact been used. Such information is unlikely to be provided where the act of torture was committed by a foreign state.

But whatever the details of the exclusionary rule, it is good to see that the US government has expressed the correct opinion, and has reminded the Military Commissions – whether by a formal rule or by the simple restatement quoted above – of their duties under the UN Convention. This is obviously extremely welcome, particularly considering that the Military Commissions do not exactly stand as a paragon of virtue in other respects.

(Incidentally, the statement by the Pentagon spokesman may be construed as giving up on an opinion previously expressed by the US: when the US ratified the Convention, a declaration was added, stating that the whole of the Convention was not self-executing (see W. M. Cohen, ‘Implementing the U.N. Torture Convention in U.S. Extradition Cases’, Denver Journal of International Law and Policy 26 (1998), pp. 517, 519). If this was an interpretation, rather than an authoritative determination for the purposes of domestic law, it would mean that Article 15 could never be applicable to any particular court, but that it only required the US as a state to adjust its domestic law to accord with the Convention. This view finds precious little support in the article itself, and it is again good to see that the Pentagon has not made any such claim)    

Wednesday, March 22, 2006

Bush denies Iraq is in Civil War

While Iraq's former interim Prime Minister Iyad Allawi told the BBC 50 to 60 people were dying every day and that the country was in civil war, US President George W Bush on Monday said he does not believe Iraq has descended into civil war. (BBC-News, Bush denies Iraq is in civil war, Tuesday, 21 March 2006)

The questions raised, concerning international humanitarian law, are what is a civil war, is the question of any legal relevance and is the Iraq in a state of civil war.

A civil war is a war between two or more groups of inhabitants of the same state. Different kinds of civil wars are acknowledged, the classical ones being fought for control of the government or of a part of the territory of a state.

Converting this definition into legal terms, a civil war is the classical example of an internal armed conflict (Oeter, Civil War, in: EPIL I, ), so that some norms of international humanitarian law apply. Common Art. 3 of the four Geneva Conventions of 1949 extends some of the more basic norms of international humanitarian law also to internal armed conflicts and thus civil wars and Additional Protocol II of 1977 goes even further than Art. 3 (AP II however according to Art. 1 has a relatively high threshold for application).
Concerning other parts of the Laws of war, for example the right to search foreign ships etc., the question of applicability is decided by the recognition of the rebels as belligerents.
If they are recognized as such by the government, making them subjects of international law, the laws of war fully apply for the conflict.
Another legal question of major relevance is the right of other states to intervene in that war, either on the side of the rebels or of the government. While help given to rebels generally has to be seen as prohibited, the situation is disputed when help is given to the government.

The question if there is a civil war in Iraq and which consequences that would have is difficult to answer, probably even impossible at this stage. I only want to outline the problems and the possible answers. (I am already working on one or two longer posts so I don’t have the time to review the whole situation in depth, which would cost me a week or so seeing all the problems raised)
The first remark has to be that the activities of foreign fighters/terrorists obviously do not count in determining if there is a civil war going on in Iraq. Only if the Iraqi ethnic/religious groups are fighting each other or the government could this amount to a civil war. One thing is not that clear in that context: does it count if those groups fight the American troops stationed in Iraq. This is a question that only could be answered if one first answered the question whether the US occupation has ended by the elections for the new Iraqi government (or before that date), an at least disputed question.

The articles by Daniel Thürer and Malcolm MacLaren, ‘Ius Post Bellum: A Challenge to the Applicability and Relevance of International Humanitarian Law’, in: Liber amicorum Jost Delbrück, Berlin 2005, pp. 753 et seq. and Knut Dörmann and Laurent Colassis, ‘International Humanitarian Law in the Iraq Conflict’, 47 GYIL (2004), pp. 293 et seq.  both give a good account on that question.

If one said that the occupation has ended and that the US Troops are supporting the Iraqi government on its own account, there would be no problem. Fighting the US Troops would equal fighting the Iraqi government. But if one is of the opinion that the US still occupies Iraq, fighting the US Forces is not part of a possible civil war (then, however, international humanitarian law would apply at least to the US Forces according to and to the amount specified in Art. 6 of the Fourth Geneva Convention of 1949).
Even if one only takes into account the fighting between the Iraqi ethnic groups, one has to say that the question of the existence of a civil war is not easily answered. There are bombings and armed clashes which clearly have an inter ethnical/religious character. See for example the bombing of the golden-domed mosque in the city of Samarra and the related demonstrations and armed clashes that erupted across southern Iraq last month. (See Michael Howard, Iraq slips towards civil war after attack on Shia shrine, The Guardian, Thursday February 23, 2006) Often these incidents are so severe, that here or there somebody calls it a civil war. (For a list of official or quasi official statements pointing in that direction see Think Progress, Bush Ignored Warnings Of Iraqi Civil War)
But I probably (seeing my fragmentary insight into the facts) would agree that there is no civil war yet, at least not in the legal meaning of the word. The occasional bombings and even some minor armed clashes do not amount to a civil war, even if they are as frequent as they are in Iraq. A civil war has to be more structured and openly fought, not that terrorist-like. I admit that Iraq seems to be at the fringe of a civil war, seeing that ethnical frictions worsen with any bombing and any incident.

Another problem is how one should know who attacked whom. That may be the main problem to decide

UPDATE: Because I really was not sure about my insights into the facts and thus my conclusion, I looked into all the newspapers reports on Iraq. I still think that there, at the moment, is no civil war in Iraq. The structure of the conflict is, as I said, too fragmentised and it is fought too secretly, in order to qualify as a civil war. The distinction however is a hard one, because a secretly fought war of course can qualify as civil war, the issues are, if the incidents occur often enough and if it is clearly fought one group against another or a group against the government. Both seem to be tricky issues, concerning Iraq.
One big issue in my argumentation so far was that the terrorist attacks don’t count. It seems however, that a major share of the violence in Iraq can be attributed to Militias of either Shiite or Sunni allegiance. The New York Times had a good article written by Jeffrey Gettleman and John O’Neil on this issue. That makes the decision concerning the civil war even harder. It seems clear that to destabilize Iraq is a major objective behind most of the attacks, but to what end? I think, taking all I know together, that the threshold for a civil war has not been reached jet, but it’s a close call.

Distinctive Emblems Post No 3: The Red Crystal

After Post No. 1, where I addressed the current developments concerning the distinctive emblems in international humanitarian law, and Post No. 2, where I described the function of said emblems in international humanitarian law, I will now turn to the adoption of the Third Additional Protocol, the establishment of the Red Crystal as new distinctive emblem.

Seeing the importance of the emblems in armed conflicts the question this post wants to address is why there was a need to draft a convention establishing a new emblem, the Red Crystal.

An interesting starting point for this question is the historical fact that for a long time there were attempts to prevent symbols other than the Red Cross from acquiring the status of a protective sign under international humanitarian law. When the Red Cross was officially adopted in 1864 it was regarded as essential to have one single uniform emblem only.( Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 300 et seq.) There are some obvious advantages if only one international symbol is generally accepted. Misunderstandings could be prevented, prejudices against emblems used by a single state can be avoided. However, already in 1876, Turkey, which had acceded to the Geneva Convention in 1865, notified the Swiss Federal Council that its Medical Service would display a red crescent instead of a red cross, because the latter sign was offensive to Muslim soldiers due to the history of the crusades.(Pictet, p. 298) Turkey, in demanding an exception from the obligation to use the Red Cross as a protective sign was later followed by Egypt, also running the Red Crescent, and Persia, running a Red Lion and Sun instead of the Red Cross (Iran did so until 1980 when it adopted the Red Crescent (ICRC, Notes, About the adoption of an additional emblem: questions and answers.)). After a diplomatic struggle the positions of those three states were legally accepted in 1929 but only as an exception effective for those states. It was clear that this arrangement was made to suppress any further claim for exceptions; however, several Muslim States adopted the Red Crescent even after 1929. (Pictet, p. 299.) Contrary to these developments there was a strong tendency to return to a single emblem up to the negotiations on the 1949 Geneva conventions, because it was seen as illogical as well as dangerous to replace a uniform, internationally accepted sign, devoid of any religious implications, by a variety of national or religious emblems. In the negotiations of 1949 this position had to face other claims by states to accept other exceptions to the Red Cross symbol. Together both positions cancelled each other out, leading to a cementation of the status quo in the 1949 Geneva Convention, saying that the exceptions, Red Crescent and Red Lion, are accepted but only for those states already using those symbols prior to 1949. (Pictet, p. 299.)

Seeing this development it becomes clear that the Third Additional Protocol and the Red Crystal had to come up with good solutions for grave problems in order to overcome the established desire for one single uniform emblem.
So what are the reasons leading to the adoption of the Third Additional Protocol despite those desires? The first problem that the Red Crystal has been designed to solve becomes obvious from the history of the three today accepted symbols. The Red Cross as a symbol until today is often understood as having religious connotations and it has to be said that this is not so far off. The Red Cross is chosen as the protective sign in international humanitarian law in honour of Henry Dunant and his country of origin, because it was felt that it would embody the fundamental principles of neutrality. It was designed as a negative of the Swiss flag (See Art. 38 First Geneva Convention of 1949), often leading to the assumption that there is no religious background. (See for example the statement of the head of the delegation of the Holy Sea, Final Record of the Diplomatic Conference of Geneca, 1949, Vol. II A, p. 150; or ICRC, Notes) The Swiss flag however deduces from Christianity in all “legends” told to explain the origin of the symbol.( See Kopp, Schweizerkreuz, in Historisches Lexikon der Schweiz) So even if the choice of the drafters of the Geneva Convention of 1864 definitely had no religious implications, the roots indeed may have been religious, although this is not certain. Independently of the correctness or reasonableness of that understanding of the Red Cross Symbol, it is clear that the existence of such an understanding undermines the respect for the symbol, at least in some countries. This becomes obvious from the desire to use the Red Crescent as an alternative symbol which is an expression of the discomfort the Red Cross may cause. Such respect, though, is essential for the symbol to fulfil its protective function, as it is the respect for the symbol and the represented legal norms and obligations which guarantees the protection of the victims of war as well as of medical personal. The attempts to agree upon the Red Cross as the only protective sign, to clear up the religious doubts connected with the cross, have obviously failed so that another solution had to be found.

Another problem that has arisen is also related to the issue of religion and national symbols. In the negotiations to the Geneva Conventions of 1949 it became obvious that the Israeli delegation insisted on the Israeli Magen David Adom, the Israeli equivalent to the Red Cross and Red Crescent Societies, being allowed to use the Red Shield of David on white ground instead of a Red Cross. (ICRC, Notes; Pictet, p. 302 et seq.) That the claim was rejected is the reason for the Israelis not to join the Movement. Other states’ Red Cross Societies like that of Eritrea wanted to use both the Red Cross and the Red Crescent together. The universality of the Red Cross and Red Crescent Movement, a declared goal, could not have been reached under these circumstances, so that again there was a search for another solution.
The Red Crystal is an attempt to finally put an end to all those discussions and to enable the Red Cross Movement to gain universal acceptance.

It is interesting to see that the idea of a new emblem was already brought up at the 1949 Conference, leading to the Geneva Conventions. The idea was to abolish the Red Cross, together with all other emblems, and to substitute a new sign (One suggestion was a heart as symbol for charity). The idea was rejected in 1949 as seeking to abandon a universally accepted emblem and thus endangering lives.( Pictet, p. 302)
The question therefore is how the Third Protocol overcame all the doubts. Are the norms so well balanced that they can overcome all doubts or was it just the time fore a new emblem?
According to Art. 2, the Red Crystal is recognized as a new distinctive emblem in addition to the emblems found in the Geneva Convention, e.g. Red Cross, Red Crescent and Red Lion and Sun. The Red Crystal therefore can be used alone, e.g. as displayed above, therefore in both functions of a distinctive emblem. Concerning the protective function, this gives states unwilling to use the other symbols for religious reasons the possibility to use a symbol without religious connotations. The Third Protocol thus respects both positions, taking up the doubts many states have against using Red Cross or Red Crescent, but declining the wish of many states to use their own symbol so that a certain uniformity is maintained. Where only the indicative function of the emblems is concerned the Third Protocol allows an even more flexible use of the emblems. According to Art. 3, it is possible to incorporate the emblem recognized by the Geneva Conventions, even a combination of these emblems, or another emblem which has been in effective use by a High Contracting Party into the Red Crystal. This gives for example Israel the possibility, on their territory and for indicative objectives only, to incorporate the Red Shield of David.

In Post 4, which will be the last post of this series, I will address the issue of the Red Cross Societies “defending” against the Gaming Industry.

Friday, March 17, 2006

Saddam Hussein unsuccessful before the European Court of Human Rights

On Tuesday, the European Court of Human Rights (ECtHR) ruled inadmissible a complaint brought by Saddam Hussein against all European member States of the coalition in Iraq.In what appears to have been a boldly, but nevertheless also badly, argued complaint (badly, that is, unless the ECtHR has given a very unfair summary of the arguments), Saddam Hussein had argued that he had been unlawfully arrested, would receive an unfair trial, would be executed afterwards, and would be subjected to inhuman and degrading treatment. This last argument was presumably on the basis that the execution of a sentence of death following an unfair trial constituted such inhuman and degrading treatment, as the ECtHR had held in Öcalan v. Turkey (at para. 169).

These complaints on the merits, however, went nowhere, because the respondent States (Albania, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) did not have jurisdiction over the applicant in the sense of Article 1 ECHR. As the Court said, ‘[t]he applicant did not address each respondent State’s role and responsibilities or the division of labour/power between them and the US.’ He therefore failed to show that it was the (European) respondent States, and not the US or Iraq, that were responsible for the arrest, the trial, and its outcome.

In fact, this failure may relate not so much to the issue of jurisdiction in the special sense of Article 1 ECHR, but to the attributability of the relevant acts to any of the respondent States. This question is clearly a prerequisite for any international responsibility, including that under the ECHR, and is either anterior to or implicit in Article 1 ECHR. Either way, the ECtHR clearly has to examine this issue, and clearly could not possibly find that there was any imputability.
Hussein had argued that he was arrested and detained by the coalition States as the occupying powers of Iraq, and he seemed to imply that this responsibility was in the nature of a joint and several liability. This, the Court for its part implied, cannot be reconciled with the fact that there was what the Court called a ‘division of labour/power’ between the various States. This is clearly correct.

But even if any of the acts complained of had been attributable to any of the respondents, such a determination would not have availed the applicant. As was mentioned above, it is not enough that an act is attributable to a State party to the ECHR, but this act must also have been part of that State’s ‘jurisdiction’ in the sense of Article 1 ECHR.
In this sense, the Grand Chamber of the ECtHR had held in Banković and Others v. Belgium and Others that the concept of jurisdiction under Article 1 ECHR would generally follow that under general international law; accordingly, the jurisdiction of States parties to the ECHR was primarily territorial, and it was not sufficient that the States had some limited control over some of the human rights guaranteed in the ECHR (at paras. 59-82).
It is difficult to say whether this holding would have been fatal to the applicant’s claim, if only because it is so difficult to think of any facts which might engage the responsibility of the European coalition States. However, it seems that the only possible reference would have been to those States’ involvement in the coalition itself: none of those States was at any time the occupying power either in the place of the arrest or of the trial, and the only influence they had over events there was through their communication between the allies (and, possibly, with the Iraqi government). Banković made reasonable clear that this would not have been enough.
The applicant had argued that Banković was wrongly decided and should be reconsidered, but in view of the fact that his own assertions were, as described, somewhat elliptical, this seems to have been a bold move.

In any event, because the European States were clearly not in control of the arrest, detention and trial of Saddam Hussein, the Court did not have to decide whether such detention alone would be sufficient to establish their jurisdiction, or whether there had to be some kind of international legal nexus of the kind referred to in Banković. The Court had given such indications in Öcalan (at para. 91) and in Issa and Others v. Turkey (at para. 71), and the English High Court (Rix LJ, Forbes J) and the Court of Appeal (Brooke, Sedley and Richards LJJ) accepted as much in R (Al-Skeini) v. Secretary of State for Defence [2004] EWHC 2911 (Admin) and [2005] EWCA Civ 1609.

But even if the relevant acts had been attributable to the respondent States and the requirement of ‘jurisdiction’ under Article 1 ECHR had been met, the request of the applicant could have met with another difficulty, recently considered by the English High Court (Moses and Richards JJ) in R (Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin) (the case is currently on appeal to the English Court of Appeal, and may go on from there to the House of Lords and, possibly, the ECtHR).
This difficulty would have occurred as a result of general international law asserting its influence on the ECHR. Specifically, it might be argued that the arrest and detention of Saddam Hussein were on the basis of an authorisation by the UN Security Council and that this authority enjoyed precedence over the guarantees of the ECHR by virtue of Article 103 UN Charter.

In its Resolution 1546, the UN Security Council decided ‘that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution (…)’. One of the ‘letters annexed to this resolution’ was a letter by the then US Secretary of State Colin Powell, in which he stated that:

‘Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include (...) internment where this is necessary for imperative reasons of security in Iraq (...).’

Accordingly, the Security Council gave coalition forces the power to ‘undertake a broad range of tasks to contribute to the maintenance of security’ in Iraq.

If the priority of obligations from the UN Charter and from Security Council resolutions over other sources of international obligations (specifically treaties) under Article 103 UN Charter extends also to resolutions granting a power, rather than only to ‘obligations of the members of the United Nations under the (…) Charter’ (Article 103 UN Charter, emphasis added), the consequence at least could be that the Security Council has, by granting this specific power, rendered the ECHR inapplicable. Indeed, the High Court reached just this conclusion in Al-Jedda, in the context of an ‘internment (…) for reasons of security in Iraq’ (see Secretary Powell’s letter quoted above).

However, this could obviously only apply if the power granted by the Security Council came into play, and this seems to be more than doubtful in the case of the arrest, detention and trial of Saddam Hussein.
Firstly, the trial itself is not conducted by any member of the coalition, and therefore falls outside the authorisation of the Council on this ground alone.
Secondly, Hussein is not interned ‘for reasons of security in Iraq.’ He is in custody during his criminal trial, as anyone who has been remanded in custody (i.e. denied bail).
Thirdly, the broader reference in Secretary Powell’s letter to ‘a broad range of tasks to contribute to the maintenance of security’ also seems to be irrelevant to Saddam Hussein’s case. His detention is not for such reasons, but is a feature of criminal procedural law. Besides, the reference to ‘a broad range of tasks’ is clearly too broad to be covered by the authorisation of the Security Council in SC Res. 1546. This is all the more so because the Council’s resolutions must be interpreted to accord, as far as possible, with human rights norms (in the case of rules of jus cogens, the Council simply may not authorise any deviations).

The issue of Article 103 UN Charter and the ECHR may therefore not have presented itself as strongly in the Hussein case as it did in Al-Jedda (I may return to the issue when the Court of Appeal has given its decision). Saddam Hussein’s case could therefore only by a considerable stretch of the imagination have been dismissed on the grounds of the precedence of the UN Charter (even assuming that the ECtHR would have jurisdiction to make such a ruling).

The case was, however, rightly dismissed because of the lack of attributability and (accordingly) jurisdiction. In fact, I completely agree with Julian Ku that this case presented ‘a loser argument, if I ever saw one.’

Distinctive Emblems Post No 2: The Functions of the Distinctive Emblems

This serial post started some days before with Post No. 1, where I described the current developments concerning the distinctive emblems in international humanitarian law
What I will do now is to give a short and general overview of the functions said symbols have to fulfil in international humanitarian law.
The emblems, the Red Cross as the most important one, actually play an important role in the framework of international humanitarian protection. Rules covering the emblems can be found inter alia in Art. 38 – 44, 53, 54 First Geneva Convention, Art. 41 – 45 Second Geneva Convention, Art. 18 – 22 Fourth Geneva Convention all of 1949, Art. 8, 18, 38, 85 and Annex 1 First Additional Protocol and Art. 12 Second Additional Protocol both of 1977. The Red Cross, which is supposed to be an inversion of the Swiss flag, as an emblem in its current meaning has a very long history; it came into being as early as 1863 and was officially adopted in the Geneva Convention of 1864.
The distinctive emblems have different functions, a protective and an indicative one. Fulfilling the first function the symbol noticeably marks persons, vehicles and structures of the medical services of the armed forces, of the International Committee of the Red Cross and the International Federation of the Red Cross and Red Crescent Societies specially protected by international humanitarian law during armed conflicts. As such it is a virtually constitutive element of protection under international humanitarian law. (ICRC, Notes, About the adoption  of an additional emblem: questions and  answers; Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, p. 325 et seq) This is obviously very important indeed. The distinctive emblem is THE visible sign of protection under international humanitarian law for medical personal and material; it is the first and most important way of showing the attacker what not to attack and it is thus necessary to make the protection of the before mentioned sites effective. As the involved personnel generally are not armed, they have to rely solely on the protective symbol to get over combat situations.
The second function of the emblems is to generally identify persons, vehicles and structures linked to the International Red Cross and Red Crescent movement, in combat and any other situations. In this function the emblem is not intended to signify the protection of the convention and therefore should be used under conditions precluding all risk of confusion with the protective use of the emblem, e.g. the emblem should be small relative to the size of person ore object it identifies. (ICRC, Notes; Pictet, p. 330 et seq)

In Post 3 I will address the issue of the Red Crystal and in Post 4 the issue of the Red Cross Societies “defending” against the Gaming Industry.    


Wednesday, March 08, 2006

Blog against sexism day: Resources on Feminist Analysis of International (Criminal) Law

Today is the 8th of March, International Women’s Day and, in the blogosphere, blog against sexism day. In the spirit of solidarity, I would like to contribute with a short post on feminist legal theory in international law.
While I am interested in feminist approaches to international law, I do not feel knowledgeable enough to contribute a substantial post. So instead, I will limit myself to pointing out some works and resources that might be of interest to readers also interested in this critical approach:

First, two works with regard to international law in general:
  • Berta E. Hernández-Truyol, “Crossing Borderlands of Inequality with International Legal Methodologies – The Promise of Multiple Feminisms”, 44 German Yearbook of International Law (2001), 113–169
This article gives a very detailed overview of the inequalities and oppression women are facing all over the world, as well as the history of feminist thought in general and with regard to (international) law especially.
  • Hillary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000)
This is probably the classic overall treatise on the subject. The authors give an overview of feminist theories and of how they may be applied to international law and apply these theories to “cornerstones” of international law such as the sources of law and the “idea of the state”, as well as to concrete areas of the law, such as human rights or the use of force. They conclude with some considerations on “redrawing the boundaries of international law”. For a more in-depth review, see Kerry Rittich, 14 Leiden Journal of International Law (2001), 935–939.

With regard to international criminal law:
  • Christine Chinkin, “Feminist Reflections on International Criminal Law”, in: Andreas Zimmermann/Ursula E. Heinz (eds.), International Criminal Law and the Current Development of Public International Law (2002), 125–160.
Starting from an account of the Women’s International War Crimes Tribunal on the treatment of Japanese “comfort women” organized by NGOs in 2000, Prof. Chinkin lays out a number of “themes integral to a feminist analysis of international criminal law. These are the grip of the public/private distinction in international law; identifying the silence of the law; reconceptualizing international criminal offences; and the procedures of international criminal law”, and the importance of networking and campaigning by women in order to achieve changes in the law (127). Her essay thus introduces several key concepts of (international) feminist legal theory in general and in their application to international criminal law. Her conclusion yields a “mixed picture” (157) – most importantly in my view, she warns against relying too much on international criminal law in the context of post-conflict reconstruction.
  • Vesna Nikolic-Ristanovic, “Sexual Violence, International Law and Restorative Justice”, in: Doris Buss/Ambreena Manji (eds.), International Law – Modern Feminist Approaches (2005), 273–293
This article deals with the potentials and limits of punitive justice (e.g. the ICTY), but also of efforts aimed at healing and at restorative justice, for victims of sexual(ized) violence in the context of armed conflicts.

Happy reading!

Saturday, March 04, 2006

Distinctive Emblems Post No 1: Current Developments

I think I have to apologize (seeing that Björn already posted 5 times) for start posting only now but I was more than busy for the last two weeks. In the time before this blog came into being some interesting questions concerning international humanitarian law have been raised and I will, from now on, try to work some of them off. Naturally I will also try to stay in touch with current events.

I decided first to address a not that hot topic (at least politically or morally) that was newsworthy in several aspects and developments in the last few month. The role of the Red Cross-, Red Crescent-, Red Lion-Symbols (often called distinctive emblems or protective symbols) in armed conflicts and in international humanitarian law. There are several issues that are worth discussing within this topic so I decided to make this a sort of serial post. I will address the current developments that made the distinctive emblems a topic worth talking about in this post, and examine each issue in a later post.

The first interesting development obviously is the adoption of the Third Additional Protocol on 8 December 2005, establishing the Red Crystal as an additional protective symbol under international humanitarian law. We all know that the Third Protocol has been adopted but what are the distinctive symbols all about and where lies the need for such a new symbol? The Red Cross and Red Crescent are more then well known after all.
For some time I thought that probably there was a major development going on but that I did not understand its importance. This development alone therefore probably would have been a reason to review the humanitarian norms on said symbols, but there are other interesting developments concerning related aspects of international humanitarian law.
The Canadian Red Cross (CRC) decided to admonish the video/computer games industry on their illegal use of the Red Cross symbol and did so in a letter published by on 3 February 2006 (see also the interview with David Pratt of the CRC at and it is reported that the British Red Cross (BRC) is approaching the games industry (See in the same regard.
The situation is as follows, as most of our readers probably know. In many video games, especially ego shooters, the icon of the red cross is used on items like health packs, potions or similar objects; in other games, playing in war related scenarios, the red cross is used depicting Red Cross facilities and vehicles rendering the game more realistic. Because there is no control over this usage of said symbol the CRC and the BRC are acting. The question is to what extent this reaction guided by legal norms, if it is a normal reaction or just aiming at the anyway pressed gaming industry and lastly if the reaction seems to be reasonable.
I have to admit that this issue was already shortly addressed for example on opinio juris (and probably many other blogs), mainly concerning the alleged illegality of the use of the Red Cross Symbol. It seems important however to talk a little bit more about the reasoning behind the norms protecting the Red Cross and the other symbols. Why? Because at first sight I thought (if I am looking around in the blogging sphere I have to say like many others) it a waste of time and money by the CRC to make such a fuss about some video games, even if the publication is prohibited in principle. With a second thought however I regarded it as necessary to know more about the background of said rules in order to be able to judge upon the admonition by the CRC.

After I have generally addressed the functions of the distinctive emblems in Post 2 of this serial post, I will address the issue of the Red Crystal in Post 3 and the issue of the Red Cross Societies “defending” against the Gaming Industry in Post 4.              

Friday, March 03, 2006

The ICJ tackles the Bosnian Genocide – or maybe not…

The International Court of Justice has begun to hear oral pleadings on the merits in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. This does raise the hope that the Court will, if somewhat belatedly, determine the legal issues arising from the civil war that wrecked the Balkans throughout much of the 1990’s. Whether this will do very much good, now that 13 years have passed since the events and circumstances on the ground have changed a lot, is, as Julian Ku at Opinio Juris suggests, an open question. I would, however, not go so far as to suggest that the Court has a ‘limited usefulness’; after all, if Bosnia and Herzegovina had agreed with this statement, it would have discontinued the case long ago. Accordingly, the judgment remains highly desirable to the applicant, and it is primarily this interest that the Court is there to serve.
As for the international legal community, it is obviously most interesting that this is the first time that state responsibility for genocide may be formally established (see Helena Cobban’s post at TJF).
However, all this would presuppose that it will come to such a judgment, and this is far from clear. These are very unusual merits proceedings, in that they do not exclusively concern the merits of the case.

The respondent has made a request to the Court to reconsider jurisdiction on 4 May 2001, and the Court has still not addressed this. The notice, called the ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’, was not in terms of any known procedural step by Yugoslavia as a party; it simply, as appears from its title, argued that the Court could go into the question of its jurisdiction at any time, even proprio motu, and apparently unimpeded by any res judicata.

This raises a host of questions, which the Court may not be altogether happy to answer.

The first problem is whether the Court really can go into the question of its jurisdiction proprio motu, i.e. without any formal request by either party. Insofar as the jurisdiction of the Court is based on the consent of the parties, this might be doubted on the simple basis that, if a state does not contest the jurisdiction of the Court, it may well be consenting to it. Thus, the Court’s competence to decide on its own jurisdiction may be said to arise only if there is a dispute on the question (or if Article 53(2) of the Statute commands the Court to examine the issue anyway, in the event of a default by a party).
The Court answered this argument in its 2004 judgment on the preliminary objections in the Legality of Use of Force cases, which Yugoslavia (later Serbia and Montenegro) had brought against the member states of NATO for their Kosovo air campaign in 1999. Then as now, the problem of the Court’s jurisdiction concerned not the jurisdiction under Article 36 of the Statute, but the more basic issue of whether Yugoslavia had been a party to the Statute and had consequently enjoyed the right of access to the Court (Article 35(1) of the Statute) when instituting the case. Accordingly, the Court held, the question was not one determined by the consent of the parties. It was therefore not necessary for the question to be raised by any party, before the Court could enter into an examination of the requirements of Article 35(1).
Exactly the same question, i.e. whether Yugoslavia enjoyed a right of access to the Court, impresses itself upon the Court in the present case. It would therefore appear that the Court is indeed capable of considering the issue proprio motu.

However, the Court has already decided in 1996 that it had jurisdiction. Does this not bind the Court today, not by any doctrine of stare decisis, but as res judicata? In other words, would it not be fundamentally unfair and therefore inadmissible for the Court to go and decide a question now, which it has already decided, perhaps differently, years ago?
(To make a token connection to human rights law, the European Court of Human Rights said in Brumărescu v. Romania, at para. 61, that the finality of court judgments was ‘[o]ne of the fundamental aspects of the rule of law’)
This would appear to be the argument pressed on behalf of the applicant, Bosnia and Herzegovina, and it would seem to be supported in principle by the Court. The Court was asked to enter into a revision of its 1996 judgment on jurisdiction, and it did so in its 2003 judgment on the request. This implied that the Court regarded the 1996 judgment as a res judicata, because the special procedure of revision exists purely to overcome the limitation of the res judicata principle, and can therefore apply only to the res judicata of the previous judgment. True, the request was eventually rejected, but not on the grounds that the 1996 judgment did not contain a res judicata.
However, there may be ways of getting around this. Firstly, the distinction made by the Court between jurisdiction under Article 36 and access to the Court under Article 35 may mean also that the matter of a state’s access to the Court is incapable of being covered by a res judicata. This argument might run as follows (this is me guessing here): Article 35 sets a fundamental condition on the ability of states to appear before the ICJ, which moreover is in no way subject to the consent of the parties. Thus, it might be said, the capacity of the Court to entertain a case remains at all times under the condition that all the parties have a right of access under Article 35, or have at least had that right when the case was instituted.
A second argument may be rather less difficult to imagine: the 1996 judgment did not even mention the question at issue today, but concentrated on Article 36(1) of the Statute and Article IX of the Genocide Convention. Therefore, no res judicata on the Article 35 issue exists, because this can only be based on what has been said on a previous occasion, not on what the Court should have said at the time.

To sum up, it may be that the Court has a power and a duty to re-examine the question of whether Yugoslavia could at the relevant time be a party to the case, and the Court may not be prevented from doing so by any res judicata.

If the Court accedes to Yugoslavia’s (now Serbia and Montenegro’s) request to do so, it may find itself in a somewhat unpleasant situation. The Court would have to decide (again) whether Yugoslavia was at the relevant time a party to the Statute of the Court, which it would have been by virtue of being identical with the old Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations (see Article 93(1) of the UN Charter).

On this basis, Yugoslavia had argued in its request for a revision of the 1996 judgment finding in favour of the Court’s jurisdiction that it had not, contrary to its earlier beliefs and statements, been the continuator state of the former Socialist Federal Republic of Yugoslavia and therefore a member of the United Nations when the case was instituted against it.
The Court did not buy into this argument, stating in its 2003 judgment on the admissibility of the request for revision that, firstly, Yugoslavia had at the relevant time enjoyed a sui generis status vis-à-vis the United Nations, and that, secondly, the request was not based on any ‘new fact’ in the sense of Article 61 of the Statute.
This reference to Yugoslavia’s sui generis position would appear to mean that Yugoslavia enjoyed some rights of membership, including that of access to the Court. Only this conclusion could have availed the Court in finding that the assumption of access in its 1996 judgment was not in fact wrong.

However, the question of access to the Court was raised again in a very different set of proceedings, namely the aforementioned Kosovo cases. When it came to the respondent’s argument that Yugoslavia had not been a member of the UN when instituting the case, one might have expected the Court to follow the lead of its 2003 revision judgment and to flesh out the concept of the sui generis membership. Not so, as it turned out.
The Court had perhaps been impressed by the political undesirability of the case before it, both to the respondents and to Serbia and Montenegro, which in the meantime had developed altogether happier relations with the West, but could not be seen domestically to discontinue the Kosovo cases. One might therefore assume that this was the internal (but by no means expressed) reason for the Court to reconsider whether Yugoslavia had really had access to the Court.
What the Court did say was that its use of the term sui generis in 2003 was in no way intended as a statement of any legal content, but merely as a description of the difficult facts. This is not extremely convincing, for the reasons mentioned above (the phrase must have had some legal relevance, or else the Court in 2003 would not have used it). Anyway, the Court in 2004 in the Kosovo cases found that Yugoslavia did not have the requisite access to the Court under Article 35(1) of the Statute, and the Court was much criticised for its refusal to follow its own very recent precedent, which moreover concerned the same state (see e.g. the Joint Declaration of Vice President Ranjeva and Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby appended to the Court’s judgments in the Kosovo cases).

It is this flat statement that makes Yugoslavia’s (and now Serbia and Montenegro’s) ‘Initiative to the Court to Reconsider Ex Officio Jurisdiction over Yugoslavia’ such a stark choice for the Court. The first option for the Court would be that it agrees with its own Kosovo judgment and finds that it does not, after all, have jurisdiction in the case, thus effectively vacating its 1996 judgment in the present case, and obviously continuing to disrespect its 2003 sui generis solution.
The second option would be for the Court to return to the view expressed in 2003, thus departing from an even more recent holding (that of 2004 in the Kosovo cases), and moreover one in which the earlier opinion of the Court had been considered. This is not only highly unlikely, considering that many of the judges of the Kosovo cases remain on the bench, it is also very undesirable. But then so is the first option.

I hope I may be excused for not expressing any view on this thorny question. Whatever I say now could only come back to haunt me.
I also realise, of course, that this post does not strictly relate to human rights, international criminal law, or international humanitarian law. The case at hand, however, clearly does concern Yugoslavia’s (again, now Serbia and Montenegro’s) responsibility for violations in pretty much all these categories, and I only set out to show that it may, sadly, not come to the merits judgment many now hope for. (A lame excuse if there ever was one. Go on, sue me.)

Thursday, March 02, 2006


As we are busy discussing the possible dangers and advantages of international criminal justice here at The Core its probably interesting to see the figures of the ICC's work to this date. I found a quick summary this figures, courtesy of the International Justice Tribune, as a post at Opinio Juris and they officially, and in full length, can be found here at the ICC-Webpage.

Since its creation in July 2002, the International Criminal Court (ICC) has received 1,732 pieces of communication about crimes committed in 139 countries.  
According to the second summary published by the office of the prosecutor on February 10, 60% of the information came from individuals or groups in four countries: the United States, the United Kingdom, France and Germany. 80% of the claims were found to be manifestly outside [the court's] jurisdiction and were dismissed after initial review. The cases that received intensive analysis were categorized into 23 "situations". Ten were chosen, six rejected and seven are still under study. Of the 10 cases selected, 3 are currently being investigated (Democratic Republic of Congo, Uganda and Sudan), 5 are being analyzed (Central African Republic, Côte-d'Ivoire, and three others that remain confidential), and 2 were dismissed (Iraq and Venezuela). The prosecutor has publicly stated his reasons for rejecting the latter two. In Iraq, the alleged war crimes were not sufficiently severe. In the case of Venezuela, he was unable to determine whether the alleged crimes against humanity had been committed "as part of a widespread or systematic attack directed against any civilian population."