As Marko reported in an earlier post, an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition”  was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (for media report, see here, here, here and here). This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States. Why is it that in this case Italy was able to exercise criminal jurisdiction over US agents? Or has the Italian court acted contrary to international law in proceeding with the case and not according immunity to the US officials agents. There are at least three types of immunity at issue here. First of all, the case raises issue as to the scope of diplomatic immunity. Secondly, the case raises issues as to the scope of consular immunity and highlights how this type of immunity differs from diplomatic immunity. The third type of immunity at issue is the immunity ratione materiae which all those who act on behalf of a foreign government are entitled to. This doctrine provides immunity from foreign criminal jurisdiction to a person where the act they have performed is essentially the act of a foreign government. Here the immunity attaches to the act itself and not so much to the official with the effect that this immunity is also available to former officials.

Issues relating to the first two types of immunity arise because some of the American defendants were US diplomatic and consular agents in Italy. It has been reported that three Americans were acquitted on grounds of diplomatic immunity. Presumably, those granted diplomatic immunity by the Italian court were members of the diplomatic staff of the US mission to Italy, which simply means they are members of staff with diplomatic rank (Art. 1 (d) of the Vienna Convention on Diplomatic Relations 1961). It would not be unusual for intelligence agents to be granted such status and the head of the CIA in Italy was one of those granted immunity in the case. However, it is also reported that the Italian Court convicted at least one person (Sabrina de Sousa) who was a US consular officer at the time of the rendition. I do not know whether the US claimed diplomatic immunity in case of those for whom immunity was granted. However, the US government did not claim consular immunity in the case of Sabrina de Sousa who then sued the US State Department in an attempt to force the US government to make such a claim (see the report in the New York Times and here for her court claim).  Although this might appear to be contradictory, there are differences in the relevant provisions of the two Vienna Conventions on Diplomatic and Consular Immunity  which might justify the difference. Both conventions provide for immunity for diplomatic agents and consular officers. Art. 43(1) of the Consular Convention provides for immunity from the jurisdiction of the receiving State “in respect of acts performed in the exercise of consular functions.” Art. 39(2) of the Diplomatic Convention provides that former diplomatic agents will continue to be immune even after they leave office, ”with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” It is much easier to argue that acts (even acts which may be illegal) come within the exercise of a person’s function as a member of a mission than it is to argue that acts come within the exercise of consular functions. Art. 3 of the Diplomatic Convention provides a broad definition of the functions of a diplomatic mission. These functions include: representing the interests of the sending state within the receiving state and negotiating with the government of the receiving State. Since the purpose of immunity is preclude a court from making a determination whether an act is lawful or not, it cannot be a limitation to the immunity with respect to these functions to say that they cannot extend to unlawful conduct. However, Art. 5 of the Consular Convention provides a much more specific and narrow definition of consular functions. It is difficult to argue that arranging for the abduction of a person would be an exercise of consular functions. The question here is not that such acts are unlawful but rather that they just don’t fall within the ordinary understanding of the scope of consular functions as defined in Article 5. Read the rest of this entry »

Major news outlets have reported the (perhaps somewhat surprising) conviction of 23 American and 2 Italian intelligence agents by an Italian court for the 2003 ‘extraordinary rendition’ of Abu Omar (for coverage, see here, here, here) and here. This is I believe the first such conviction in any Western country - the decision itself was announced orally, while the written reasons will follow eventually. Our readers might be interested in a topical article (available on SSRN) on the Abu Omar case by Francesco Messineo, which is due to be published shortly in the JICJ, and which I’ve had the opportunity to read in draft.

UPDATE: Since I wrote this piece it has been announced that the rival Honduran leaders have reached agreement to resolve the crisis relating to the Presidency (see BBC report here). It is not clear what impact this will have on the ICJ case discussed below.

The  new “government” of Honduras has instituted proceedings in the International Court of Justice against Brazil which has given refuge in its embassy in Honduras to “former” Honduran President José Manuel Zelaya (see ICJ Press Release). According to the Application submitted to the Court yesterday by the Honduran Ambassador in the Netherlands:

the “dispute between the Republic of Honduras and the Federative Republic of Brazil relates to legal questions concerning diplomatic relations and associated with the principle of non-intervention in matters which are essentially within the domestic jurisdiction of any State, a principle incorporated in the Charter of the United Nations”.
In particular, the document indicates that “[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens”, who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, “are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009″. It is stated that “[t]he Brazilian diplomatic staff stationed in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services, infrastructure and other resources in order to evade justice in Honduras”.

According to the document submitted by Honduras:

the primary purpose of this Application is to secure a declaration that Brazil has breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations

and Honduras

requests the Court to adjudge and declare that Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so.

There is no indication in the press release about the grounds on which Honduras claims that the Court has jurisdiction to consider the case. While Honduras has made a declaration under Art. 36(2) of the ICJ Statute recognising the compulsory jurisdiction of the ICJ, Brazil has not. However, both States are parties to the Pact of Bogotá  1948(The American Treaty on Pacific Settlement, see here). Under,  Art. 31 of that treaty, parties accept the compulsory jurisdiction of the ICJ. 

The majority of the international community and international institutions such as the UN and the OAS appear to have taken the view that removal of President Zelaya was not only unconstitutional under domestic law but also illegal as a matter of international law. In previous EJIL:Talk! posts (here and here) Brad Roth has discusssed the international reaction to the Honduran crisis and argued that the response has the potential to effect (an ill advised) shift in foundational norms governing the relationship between international and domestic legal authority. Although the ICJ proceedings instituted by the new authorities in Honduras are not framed in these terms, the case may mean that the ICJ gets to pronounce on whether the new “government” is actually the government. In fact, it may well be that it is the ICJ that has the definitive say as a matter of international law on who is the legitimate government in Honduras! Read the rest of this entry »

In April of this year, the ICC Prosecutor issued a set of Regulations of the Office of the Prosecutor. These regulations are intended to govern the way in which the office of the ICC Prosecutor  is administered and the way in which it conducts investigations and operations. Back in 2003, the Office of the Prosecutor issued a policy paper in which it stated that:

“The Office of the Prosecutor considers that Regulations are essential to ensure its independence and accountability. For this reason, it will adopt ad interim Regulations to guide the decisions and practice of the Office, taking into consideration the comments received in the public hearings and throughout the consultation process. The Office considers that in the elaboration of the final Regulations, it will be indispensable to also take into account the views of the staff members that will be recruited and the experience gained by the Office in its first months of operations. The Office envisages adopting these Regulations during the first semester of 2004.”

I am not sure if interim regulations were issued in 2003 or if the 2009 regulations are the first issuance of the “final regulations.” Given what was said in the policy paper, it would appear that the Regulations are intended to provide standards for prosecutorial decision making and in particular to guide the exercise of prosecutorial discretion. However, these regulations do not in fact provide much guidance on how the prosecutor will make decisions in those areas where the prosecutorial discretion is most important: decisions relating to what situations to investigate and who to prosecute.  

Read the rest of this entry »

The trial of Radovan Karadzic at the ICTY was supposed to begin this morning, but, true to his word, Karadzic decided to boycott the trial because he was allegedly not given enough time for preparation. In reality, however, it has been more than a year and three months since his transfer to the Hague - time that he spent wastefully, mainly by bombarding the Tribunal, states, and the public with his theories regarding an alleged immunity deal with Richard Holbrooke, that he claimed was somehow supposedly binding on the Tribunal (for our earlier coverage, see here, and for some discussion see here). The proceedings will resume Tuesday afternoon, and we shall see what the judges make of it.

That the trial is off to a rather bumpy start is of course entirely the Tribunal’s own fault - not because it denied Karadzic adequate time for preparation, but because it allowed him to represent himself in the first place. The ICTY’s overly generous (to put it mildly) approach to self-representation, first in the Milosevic and then in the Seselj cases (see more here), quite simply allowed determined defendants to turn the courtroom into a circus. It is not just deeply flawed legally, practically, and symbolically - it also in my view rests on a mistaken psychological assumption: that the defendants in question actually wish to persuade the judges of their innocence.

But high-ranking defendants want no such thing. It is not the judges who are their intended audience - they perform for the history books, and for those same besotted masses whom they once led and whose fate they still want to control. They wish to validate their own heroic self-image; the courtroom is only their final stage, and the judges a part of the decor. They do so not just because of the narcissistic, prima donna personality that is almost invariably a part of the pathological mental make-up of a successful politician/war criminal. Rather, they are in a sense perfectly rational in their irrationality. That they have nothing to gain by having counsel defend them to the best of their ability is plain - either they already know that they are guilty, or they believe that there’s a conspiracy out to get them, of which the judges naturally form part.

Read the rest of this entry »

The ‘Lisbon Urteil’ and the Fast Food Culture

The outcome was not a surprise. ‘Yes’ to the Lisbon Treaty with some (arguably trivial) tinkering with internal German procedures. The naïve might have expected something else: after all, some of the statements of that same court in its highly problematic Maastricht decision could have been construed as pointing towards a different, negative, result. But in its internationally-related case law, the German Constitutional Court has a well-earned reputation of the Dog that Barks but does not Bite. There would be, as the more jaded court watchers among us confidently predicted, lengthy ‘humming and hawing;’ some high sounding and biting criticism of certain democratic deficiencies of the Union and its Institutions; heavy breathing about the German Court’s constitutional responsibilities and important guardianship role. But in what we may now call the regular ‘Karlsruhe Miracle’, the pig would finally be pronounced Kosher - as indeed turned out to be the case. Despite its history of self-important ’so long as …’ style rhetoric, of all the Member State courts and tribunals, it would not be the German Constitutional Court which would take it upon itself to derail the process of European integration in so important a case, no matter how inimical that process might be to its understanding (whether right or wrong) of democratic and civic propriety. (The dog might well bite in the pending Mangold case - and if it does the feeling of many is that it will be an injury the ECJ gratuitously brought upon itself and the Union.)

What of the content of the decision? Courts, especially supreme courts, do have institutional identities into which their transiently serving members mould themselves. But we should not overdo this form of reification. The quality of reasoning and the ostensible and implicit Weltanschauung of any given case are a reflection of the actual individuals who make up the chamber which hands down the decision. In this particular case, the composition of the deciding ‘Senate’ is as expected - some truly outstanding jurists, one or two about whose intellectual suitability for such high judicial office one might wonder, and the rest with more than adequate competence - as is the case with most of our European high courts. So no surprises here either: a mixed bag. A decision with lights and shadows, some conflicting tendencies, some painful displays of shallowness and lack of political imagination, and some veritable soaring passages and profound reflection. ^{Read the rest of this entry »}

The latest issue of the European Journal of International Law has been published and is available here and here. This is Issue 3 of Volume 20. Readers will remember that the current volume of EJIL celebrates the 20th Anniversary of the Journal. In each issue of this volume, there is an anniversary article as well as a symposium which focusses on themes or issues where there has been significant change in international law over the past twenty years. In this issue the Anniversary article is by Anne Peters, Professor of Public International and Constitutional Law at the University of Basel and is titled “Humanity as the Alpha and Omega of Sovereignty”. The Symposium is on Globalization. In addition to these features, and others, this issue also contains two EJIL:Debates - one on the Kadi case and the other on “Soft Law”. The editorial by Professor Joseph Weiler (see here) elaborates on the pieces contained in this issue of EJIL.

The full table of contents is as follows: Read the rest of this entry »

This past summer, British Prime Minister Gordon Brown announced the establishment of an inquiry into the UK’s involvement in the Iraq War. The Iraq Inquiry, which is independent of the government, began work at the end of July.  The committee will consider events from the summer of 2001 until the end of July 2009 when all British forces left Iraq. This means that  the inquiry has a mandate to consider the lead up to the Iraq war, including the circumstances in which the decision was taken to commit the UK to the invasion, as well as the period of the conflict and the post conflict reconstruction. In establishing the inquiry, the Prime Minister stated that the

“the primary objective of the committee will be to identify lessons learned. The committee will not set out to apportion blame or consider issues of civil or criminal liability.” (see here at column 24, 2nd para)

The Inquiry will be conducted by a team of five headed by a former civil servant, Sir John Chilcot. It includes an academic (Sir Lawrence Freedman), a historian (Sir Martin Gilbert), a former diplomat (Sir Roderic Lyne) and a member of the House of Lords (Baroness Usha Prashar).

International lawyers, and indeed the general public would be interested to know, that the Chair of the Inquiry announced in its initial press conference that the inquiry would seek to

form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict. (see here)

Given that it is unlikely that the question of the legality of the war in Iraq will come before an international tribunal, the Iraq Inquiry may well be the most important public and formal process for the determination of the legality of the UK’s (and US’) use of force in Iraq. Last week, the Inquiry announced the appointment of  Dame Rosalyn Higgins as its international law adviser. Dame Rosalyn was Professor of International Law at the London School of Economics up until 1995 when she became a Judge of the International Court of Justice (ICJ). She was President of the ICJ from 2006 until February 2009 when she stepped down from the Court. In addition the Inquiry has engaged General Sir Roger Wheeler, the former Chief of the General Staff (i.e head of the British Army) as its military adviser. 

Like the Prime Minister, Chair of the Inquiry has stressed that “the Inquiry is not a court of law and nobody is on trial” (statement at the Chair’s initial press conference). However, there remains some interest as to whether the inquiry could lead to prosecutions, if it were to find that the UK went into the war illegally. The Inquiry has announced that it will call as witnesses the Prime Minister and former Prime Minister Tony Blair. Could Tony Blair be prosecuted for taking the UK into an illegal war? Read the rest of this entry »

Editor’s Note: This is part of a series of post on the Treaty of Lisbon. The first post in the series was by Laurent Pech and can be found here

Now that Ireland has voted yes in a referendum earlier this month - remarkable how democracy swings! - the European Union’s Treaty of Lisbon looks set to enter into force over the next couple of months.  Barring any further upheaval, such as a recalcitrant Czech President refusing to sign, or further delay allowing the UK Conservative Party (if they win the next general election in the UK) to set up their referendum, the curtain will fall over the European Union’s [EU] long constitutional episode which followed the Treaty of Nice.  It is by no means the end of the play though.  The curtain may fall for the general public, but behind the scenes much of the work remains to be done.  The entry into force of Lisbon will not close institutional reform.  Quite the contrary, it will set in motion an intense period of institutional adaptation, governed by often sketchy Treaty provisions which are indeterminate and riddled with opportunities for inter-institutional strife.  This is particularly the case for the conduct of the EU’s external relations - or external action, as the Treaties now call it.  The role and position of the High Representative for Foreign Affairs and Security Policy, who will also be a Commission Vice-President, will need to be clarified.  His or her relationship with both the Commission President and with the new European Council President will need to be developed.  The EU’s External Action Service will need to be set up.  These are just some examples.

The focus of this post is not on such institutional issues, but on other questions regarding the EU’s future as an international actor, subject to international law.  What are some of the main changes which may affect that future?  Here are some projections.

The International Legal Personality of the European Union

Readers probably know this by now, but it is still momentous: the European Community will be no more.  The difficult construction of a European Union, based on, and complementing the European Community, will be replaced by a single EU, which will have legal personality (Art 47 Treaty of the European Union [TEU]).  That will terminate the rather tedious academic discussions about whether the EU, as opposed to the EC, has international legal personality (it clearly had, at the latest from the moment it started concluding international agreements).  Instead of two international legal persons, the EU and the EC, there will be only one.  This also means that the various EU external policies will need to be further integrated.  Read the rest of this entry »

Elizabeth Prochaska’s recent post addressed the Canadian case of the Prime Minister v Omar Khadr from the perspective of its relevance to the law of diplomatic protection. I would like to highlight two other interesting international human rights law questions raised by the case. One is whether Khadr was at any relevant time “subject to Canada’s jurisdiction” for the purposes of Canada’s obligations under the ICCPR and the Convention on the Rights of the Child and the other is how we classify the conduct of Canadian intelligence officials who interrogated Khadr in Guantanamo in terms of human rights law.

Canadian officials interrogated in Guantanamo Bay Khadr several times between 2003 and 2004, for “law enforcement and intelligence” purposes. Khadr at that point was 16 or 17 years old, had never met with a lawyer, had not spoken with his family, and had been detained continuously at Guantanamo Bay since the age of 15. The Canadians were aware that Khadr was accused of having killed an American soldier, and although he had not been charged, the possibility of a trial before a military commission was reasonably foreseeable. They also knew that the US military was recording all of their interviews with Khadr, and thus that this material might well become part of a criminal prosecution against him. The Canadians subsequently transmitted summaries of their interrogations of Khadr to US authorities, with no caveats as to their use in criminal proceedings. 

Some further information came to light in July 2008, as a result of a Canadian Supreme Court decision concerning Canada’s obligations to disclose to Khadr’s counsel the interrogation summaries which had been transmitted to the US authorities. In a document dated April 2004 and marked “Secret,” a foreign affairs official provided a summary of the Canadian interrogation of Khadr that took place in March that year. According to the summary, the Canadian official who attended Guantanamo to interview Khadr was told by his US interrogator that “In an effort to make him more amenable and willing talk, [redacted] has placed Umar on the ‘frequent flyer program’ for the three weeks before [the Canadian official's] visit, Umar has not be permitted more than three hours in one location, thus denying him uninterrupted sleep and a continued change of neighbours. He will soon be placed in isolation for up to three weeks and then he will be interviewed again.” The Canadian official proceeded with the interview of Khadr, despite learning this information.

Assuming for argument’s sake that 3 weeks sleep deprivation of a 16 year old who has already been detained for 2 years amounts to inhumane treatment under the ICCPR Art 7 and CRC Art 37(d), the question remains whether Canada (through its agents) owed any human rights obligations to Khadr when they interrogated him in these circumstances. Khadr was clearly not within Canada’s custody at this time; Canadian officials were not detaining him. Hence, under a strict factual control test, Khadr would not be within Canada’s jurisdiction. On the other hand, the line of reasoning which emphasises jurisdiction as reflecting a specific relationship between the state and the individual (which could include nationality, and also state action directly affecting the rights of the individual) would allow us to argue that Khadr is in fact “subject to” or “within” jurisdiction, just as the Uruguayan nationals denied passports by Uruguayan officials in the US were still “subject to” Uruguay’s jurisdiction. There does seem to be something quite perverse in concluding that, because Khadr was detained by the US, Canadian officials can take advantage of US abusive conduct by interviewing Khadr irrespective Canada’s obligations under the ICCPR and the CRC. Perhaps this is what the Human Rights Committee had in mind when it warned that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”

This leads to the second question, which is: how do we classify the decision of the Canadian interrogator to continue with the interview after he was explicitly informed that Khadr had been treated abusively in order to make him “more amenable” to talk to the Canadian. At a common sense level, the interviewer who proceeds after learning of this is clearly contributing to or furthering the purpose of the abusive treatment. But what does this amount to in terms of framing the state’s conduct in human rights terms? It seems to me that in these circumstances, the interviewer (acting within his delegated authority and so also incurring the responsibility of the state) has become a participant in the abusive conduct. This, in turn, violates the state’s duty to respect the right of the person within its jurisdiction to not be treated inhumanely (CRC, Art 37(d), ICCPR, Art 7) and not be coerced into making a statement (CRC Article 40.2.b(iv)). It may also violate the state’s obligation to ensure - as a standard of due diligence - that its officials do not acquiesce in or otherwise contribute to the abusive conduct of another state (the Committee against Torture has made this most explicit in paragraph 17 of its General Comment 2).

Does this also amount to “complicity”? The difficulty here, as Marko Milanovic has pointed out in an earlier post, is that it is not clear whether we have a non-criminal standard of complicity that could be applied. The standards of knowledge and intent required by Article 16 of the Articles on State Responsibility seems prohibitively high and may not capture even the conduct of the Canadian official in this case.