In association with the International Commission of Jurists

January 2014

18 Jan

In the past fortnight on Opinio Juris, Kevin wasn't convinced by the Muslim Brotherhood's argument that can accept the ICC's jurisdiction on an ad hoc basis because it is still Egypt's legitimate government. He also discussed the OTP's motion to challenge Rule 134quater and the Trial Chamber's decision to conditionally excuse Ruto from continuously attending his trial in The Hague. Julian gave the US...

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17 Jan

From the third paragraph of President Obama's implementation of surveillance reforms (Presidential Policy Directive/PPD-28). [O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information. The primary operative provision of the...

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17 Jan

The decision was given orally, and no written decision is available yet. But here is what The Standard's online platform is reporting: The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions. The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby...

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16 Jan

The American Journal of International Law has posted electronic excerpts from its "Agora: Reflections on Kiobel", which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting...

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16 Jan

A subcommittee of the  U.S. House of Representatives' Foreign Affairs Committee held a much-needed hearing to educate themselves on China's recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China's maritime disputes with Japan, the...

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16 Jan

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.] The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion. Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar). As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable.
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15 Jan

We are happy to announce that Opinio Juris and EJIL:Talk! will be providing reactions to the European Court of Human Rights decision in Jones v. United Kingdom over the coming days. The critical question in Jones was whether Saudi Arabia and Saudi officials enjoyed immunity from suit for allegations of torture. The Court denied petitioners claims, holding that "The weight...

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15 Jan

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on a variety of immunities matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.] In Jones v. United Kingdom, a chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom did not violate Article 6 of the European Convention on Human Rights, which guarantees a right of access to court, by dismissing civil suits alleging torture on grounds of immunity. Jones and others sued the Kingdom of Saudi Arabia and some of its officials in UK courts alleging torture in violation of international law. In 2006, the House of Lords held that both Saudi Arabia and its officials were immune from suit under the UK’s State Immunity Act. The ECtHR’s decision with respect to Saudi Arabia is not remarkable. In Al-Adsani v. United Kingdom, the Grand Chamber of the ECtHR held by a closely divided vote that international law did not recognize an exception to state immunity from claims of torture. Since Al-Adsani, the International Court of Justice has confirmed in Jurisdictional Immunities of the State (Germany v. Italy), that there is no exception to state immunity for human rights violations. What is remarkable is the decision in Jones to extend that immunity to foreign officials. In so doing, the ECtHR has effectively concluded that torture is an “official act” entitled to immunity from civil suit in the courts of other countries. That conclusion not only runs against current trends (as Philippa Webb has noted), it is also mistaken as a matter of existing customary international law. Under customary international law, foreign official immunity takes various forms. Heads of state, heads of government, and foreign ministers (the so-called “troika”) enjoy status-based immunity (immunity ratione personae), which extends to all acts but lasts only during their time in office. Other officials—and all former officials—enjoy conduct-based immunity (immunity ratione materiae), which lasts forever but applies only to acts taken in an official capacity. (The immunities of diplomatic and consular personnel are governed by treaties: to oversimplify, diplomats have status-based immunity and consular officials have conduct-based immunity.) The foreign officials sued in Jones were not part of the troika, which means they were entitled to immunity under customary international law only if the conduct alleged was an “official act.” It is important to bear in mind that customary international law permits States to grant foreign officials immunity from the jurisdiction of their courts that is greater than the immunity required by customary international law. In Jones v. United Kingdom, the UK House of Lords interpreted the State Immunity Act to extend the immunity of the State itself to foreign officials for any act attributable to the State. The question technically before the ECtHR was not whether customary international law required the UK to grant such immunity, but rather whether Article 6 of the European Convention on Human Rights prohibited it from doing so. It would have been possible for the ECtHR to conclude that the UK was within its rights to extend immunity to foreign officials alleged to have committed torture, even though such immunity is not required under customary international law. Instead, the court undertook to “examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials” (¶ 201). In doing so, it got the analysis badly wrong.
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14 Jan

Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here's a description: Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been...

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14 Jan

Standard Digital News, the online platform of The Standard, one of Kenya's leading newspapers, published a long article yesterday entitled "Did State Parties Hoodwink Kenya, African Union on ICC Attendence?" Here are the opening paragraphs: KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This...

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13 Jan

Last week at the American Association of Law Schools (AALS) annual conference I had the honor of speaking on a panel on UN Law Making, with Mahnoush Arsanjani, formerly of the UN Secretariat, Kimberly Prost, Ombudsperson for the Al Qaida sanctions regime, and Pablo Castillo-Diaz, of UN Women.  A summary of the matters discussed by the panel is available here. Our...

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13 Jan

Well, it's not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran's earlier November deal on its nuclear program.  But, what's being held back is the actual text of the deal.  There's not many details (the...

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