Tuesday, February 27, 2007

The ICJ Tackles the Bosnian Genocide: Part 1: Jurisdiction

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

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

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

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

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

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

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

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

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

Friday, February 23, 2007

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

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

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

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

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

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

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

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

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

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

Thursday, February 15, 2007

Another warm welcome to the International Law blogosphere...

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

Time for us to update our blogroll...

Thursday, February 08, 2007

Thoughts on the Lubanga Confirmation Decision - Part 1 of ?

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

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

Coming to the more substantive issues dealt with by the Chamber, the first refers to the chapeau of Art. 8 Rome Statute, i.e. the existence of an armed conflict in Ituri province at the time of the alleged crimes. The Chamber finds that from July 2002 to June 2003, the Ituri conflict was of an international character due to occupation by Ugandan armed forces. The Chamber also finds that there was some evidence of involvement of Rwandan troops in the conflict, but that there was not enough evidence for it to decide whether this involvement could be characterized as "direct or indirect intervention". Two remarks on these findings:
  • First of all, they might be taken as indicative of the ICC's behavior towards findings by other international courts, especially on questions of general international law. In this regard, as far as the legal standard for, e.g., armed occupation is concerned, the Chamber relies on a mix of ICJ and ICTY jdugments. As for the factual pronouncements, there are some obvious parallels between the Chamber's decision and earlier ICJ judgments in parallel cases: In proceedings brought by the DR Congo against Uganda, the ICJ had found that Uganda had violated internationa law by, among others, occupying parts of the DR Congo's territory. In parallel proceedings against Rwanda, however, the ICJ found that it lacked jurisdiction to deal with the issue.
  • Secondly, the Chamber's characterization of the conflict conflicts (bad pun actually not intended) with that of the Office of the Prosecutor, which had characterized the conflict as non-international for all of the material time. The OTP had, in fact, charged Lubanga only with the war crime of recruitment of child soldiers in non-international armed conflict (Art. 8 (2) (e) (vii) Rome Statute) and not alternatively or additionally with the similar crime in international armed conflict (Art. 8 (2) (b) (xxvi) Rome Statute). In such situations, i.e. where the Chamber's legal characterization of acts charged differs from that of the OTP, Art. 61 (7) (c) (ii) Rome Statute foresees that the Chamber adjourns the hearing and requests the Prosecutor to consider amending the charges in this regard. The Chamber, however, chose to instead confirm the charges while substituting (Art. 8 (2) (b) (xxvi) for Art. 8 (2) (e) (vii) (or, in other words, amending them itself), pointing to the substantial similarity between the two crimes. I guess that from the perspective of judicial economy (and thus from a speedy trial perspective), that makes sense. At the same time, it could also be seen as a further stage in the struggle between the PTCs and the OTP about who has control over pre-trial proceedings (I am working on an article on this question, and I also hope to post some more about it in the near future) - in fact, the OTP has asked for leave to appeal the Confirmation Decision, under Art. 82 (1) (d) Rome Statute, for precisely the reason that the Chamber substituted the charges.
Speaking of appeals: Not only the OTP has appealed the decision, but so has the Defence.
First of all, Defence Counsel has brought an appeal an appeal under Art. 82 (1) (b) of the Statute, which grants a right to appeal against "a decision granting or denying release of the person investigated or prosecuted." While it is true that the Confirmation Decision effectively leads to Lubanga's further detention, I am not sure that this means that it is covered by Art. 82 (1) (b), and apparently neither is the Appeals Chamber, which instructed parties to focus on this very question first (see the Defence Submission on the question here).
Second, as becomes clear from this decision of the PTC Single Judge, the Defence has also asked for leave to appeal the Confirmation Decision under Art. 82 (1) (d). We'll have to wait and see how things develop, but my guess would be that none of these appeals will reach the "merits" phase.

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

Tuesday, February 06, 2007

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

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

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

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

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

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

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

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

Monday, February 05, 2007

Blog Recommendation: Trials and Denials in Cambodia

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