Thursday, June 29, 2006

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

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

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

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

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

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

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

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

Monday, June 19, 2006

Sudan Questions the ICC's Jurisdiction

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 15, 2006

House of Lords on State Immunity for Torture in Civil Proceedings

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

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

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

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

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

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

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

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

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

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

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

This must be regretted.

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

Wednesday, June 14, 2006

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

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

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

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

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

Art. 3 para. 1 reads:

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

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

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

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

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

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

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

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

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

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

Tuesday, June 13, 2006

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

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

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

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

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

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

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

Monday, June 12, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 09, 2006

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

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

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

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

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

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

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

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

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

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

Warm welcome to the international law blogosphere...

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