Author Archive for
Kristen Boon

Expanding the UN Ombudsperson’s Mandate & Better Cooperation Between the ICC and Sanctions Regimes

by Kristen Boon

The UN Ombudsperson’s office currently has jurisdiction over the 1267 sanctions regime, but the discrepancy between the due process afforded to individuals affected by that regime as opposed to other regimes has long been noted: individuals listed under the various sanctions regimes applicable to situations in Africa, and the Weapons of Mass Destruction regimes applicable the situations in Iran and North Korea, only have access to a UN focal point to request delisting. The UN focal point, however, has fewer powers and does not operate under the same due process guidelines as the Ombudsperson.

This issue was debated last week in the Security Council during an open meeting on Security Council methods. According to the UN Press who reported on the day long meeting, Kimberly Prost, the UN Ombudsperson, noted that in her experience a fair process was essential to the implementation of sanctions, and it connected with a possible reduction in legal challenges to the application of sanctions at regional and domestic levels.  For analysis of the reasons the UN Ombudsperson herself and certain Member States support extending the Ombudsperson’s mandate, see Maya Lester’s blog here. General background on the Working Methods debate is available here.

At the same session, states also discussed overlap between sanctions regimes and the ICC, and ways to improve cooperation. For background on the main issues, see my blog here.

There is little question that an expansion of the Ombudsperson’s mandate at least to more sanctions regimes, and better cooperation between criminal tribunals and the UN Sanctions regimes will improve the effectiveness of UN sanctions. Moreover, they complement the UN High Level Review of Sanctions which is coming to an end, in which a parallel effort to assess and improve sanctions regimes has taken place.

 

Privileges and Immunities Hearing in The Haiti Cholera Case against the UN

by Kristen Boon

An interesting and significant hearing on the UN’s Privileges and Immunities in the Haiti Cholera case took place on Thursday morning, October 23, in the Southern District of New York.   For plaintiffs, the hearing was a milestone because it represented the first time that they have had the opportunity to argue any aspect of their case regarding the cholera epidemic in Haiti in a tribunal.   Hearings on privileges and immunities are rarely granted by domestic courts (judges generally make the determinations on the basis of written submissions of the parties), and so Judge Oetken’s invitation was an unusual and important development.  Plaintiffs were represented by the Institute for Justice and Democracy in Haiti, and the District Attorney responded for the United States, as host state to the UN.   Three amici spoke on behalf of plaintiffs.

In front of a packed court room, lawyers for the plaintiffs in Georges et al v. UN made the case that the UN has breached the Convention on Privileges and Immunities of the UN by not providing an “appropriate mode of settlement” for private law matters as required by Article 29 of the Convention on Privileges and Immunities of the UN (CPIUN).   This argument is developed in the plaintiff’s August 28 sur reply (available here), in which they state that the broad immunities granted to the UN in Article 2 of the convention need to be read in light of the UN’s obligation to make appropriate modes of settlement in Article 29. According to the plaintiffs, the UN’s failure to adhere to Article 29, which in this case would involve the establishment of a mechanism like the Standing Claims Commission envisioned in the model status of forces agreement (SOFA), should result in a lifting of the UN’s immunities.

In response, the US government, who has asserted absolute immunity on the part of the UN, relied on its letter in support of its statement of interest dated July 7 (available here), making the case that the UN’s immunities are absolute under Article 2 of the CPIUN, and that the only exception to Article 2 is an express waiver of immunity, which the UN has not given in this case.  According to the US government, Article 29 cannot be read as a condition precedent to Article 2.

Judge Oetken displayed a high level of knowledge of the applicable international legal framework and precedent in US courts and abroad on the scope of the UN’s immunities.   He appeared to be using the oral argument as an opportunity to test ways to frame the question, and to challenge each of the parties with regards to the scope of applicable precedents.  He both orally acknowledged that he is bound by 2nd circuit precedent, and cases like Brzak, in which the UN’s immunity was found to be absolute, and expressed interest in whether courts elsewhere have faced a similar question or come to a different conclusion with regards to the scope of the UN’s immunities. He was interested in Plaintiffs argument that there is a fundamental bargain between member states behind the CPIUN, which, if breached by the UN’s decision not to provide an appropriate mode of settlement, might be a basis to lift the immunity protections under the CPIUN.  Using terminology from contract law, he asked the US government if the UN were not in material breach of the treaty in this instance, for failure to provide a mechanism to resolve the claim. He also engaged in a close reading of the text of the CPIUN – noting that Article 29 says that the UN shall provide appropriate modes of settlement, not may or might. Moreover, he challenged both parties about venue, asking whether, pursuant to Article 30 of the CPIUN, the ICJ wasn’t the better forum to resolve questions of interpretation, such as the relation between Articles 2 and 29, and why Haiti or the US couldn’t refer such a question to the ICJ.

From my perspective two issues that were not addressed by the parties in oral argument that seem important to the resolution of the case involve the distinction between public and private law disputes, and the status of private parties within the CPIUN.  To recall, the plaintiffs take the position that the claims in this matter are private (sounding in tort, involving a request for compensation for death or injury), whereas the UN’s response to their initial complaint stated that the claim was not receivable because it would involve a review of political and policy matters.  The UN did not provide reasons for this characterization. Given the centrality of the distinction between public and private law definitions under Article 29 with respect to the obligation to provide appropriate modes of settlement, clarity about the definition of public versus private law will be important to this and future such cases against International Organizations like the UN.  Second, the status of the claimants, here private individuals who were never part of the ‘grand bargain’ underlying the CPIUN between UN member states was not explored, yet this seems significant to the question of material breach.

Judge Oetken has reserved judgement, and a decision in this case is not expected before the new year. Two other class actions have been filed in US courts and are currently pending.

For background on this case, please see my prior blogs on Opinio Juris and an October 17 program on CBC Radio entitled “The Current” in which journalists, lawyers, and an independent academic (myself) were interviewed. http://podcast.cbc.ca/mp3/podcasts/current_20141017_93209.mp3

Legal Issues at the GA This Fall

by Kristen Boon

For those interested in the 6th committee program at the General Assembly currently underway,  the schedule is available here.   Interesting topics are being discussed, including the Rule of Law, International Terrorism, Universal Jurisdiction, finalizing a draft UNCITRAL treaty on transparency in treaty based Investor-State disputes, and an update on the Responsibility of International Organizations.  The ILC’s report will be discussed between October 27 – November 5.  Documents for the sessions are available on the PaperSmart portal, and all the plenaries can be viewed by live webcast here.

In addition, on Thursday, Oct. 16, elections will take place for five non-permament Security Council seats.   Background on the seats available and the countries vying for them is available here.

 

To Debate or Not to Debate in a Time of War

by Kristen Boon

John Stewart’s Sept. 29 clip “Cameron – What are you Doing?” is a must see on comparative constitutional law.   Stewart contrasts the fulsome and spirited debate in the UK on whether to authorize airstrikes against ISIL, with the absence of congressional action in the US.   Well worth watching. And quite funny.   Here is the show.

 

 

The UN Security Council Takes up Ebola

by Kristen Boon

Today, the UN Security Council held an open debate on the ebola outbreak in Africa, and unanimously adopted Security Council Resolution 2177.   Background on the US sponsored resolution is available here.

The Council’s decision to take up the issue of Ebola is significant for three reasons. First, the Council calls the Ebola outbreak a threat to international peace and security. In the preamble, the Resolution expressly states the Council is “determining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.”  Although the resolution was adopted under Chapter VI (apparently due to concerns from Russia), it indicates a broadening concept of what events might trigger the Council’s jurisdiction.    Security Council meetings on public health crises are rare, although two prior resolutions have been adopted on HIV/AIDS in 2000 and 2011 (S/RES/1308; S/RES/1983).

Second, the resolution contains a number of direct instructions to member states and private industry.   It “calls on” Member states to lift general travel and border restrictions, provide urgent resources and assistance, including deployable medical capabilities.  It also “calls on” airlines and shipping companies to maintain trade and transport links, reinforcing the Council’s increasing engagement with non-state actors.

Finally, the outbreak of Ebola is changing the UN’s approach to intervention in Liberia generally. Not only have plans to wind down UNMIL and UN sanctions been put on hold in light of the public health and social crisis, but the role of UNMIL is likely to evolve, with peacekeepers being called upon to provide logistical support to fight the epidemic.

This is a good step by the Security Council: it is demonstrating its relevance to a current and destabilizing threat with international ramifications, in a country that has been on the Council’s agenda for many years.

Rebels Holding Peacekeepers Demand UN lift Sanctions

by Kristen Boon

Last week, 45 Fijian peacekeepers deployed as part of a 1,200-member U.N. force monitoring a buffer zone between Syria and Israel were captured and are being held by Nusra Front rebels.   (Hat tip to Theodore Christakis here at the ESIL conference in Vienna for raising the issue yesterday in the ESIL / SHARES Peace and Security Interest Group Seminar.)

Rebels have made three demands for their release, according to a WSJ article published yesterday:

1. They want to be dropped from the list of al Qaeda-linked groups under U.N. sanctions;

2. They are demanding monetary compensation for the deaths of the insurgents who were killed in recent fighting along the Syrian-Israeli border; and

3. They want humanitarian aid for a rebel-controlled area near the Syrian capital Damascus that is surrounded by government troops.

The Security Council responded with a press release yesterday, read by Amb. Samantha Power, in which it “condemned in the strongest terms the detention of 45 Fijian peacekeepers by a Security Council-designated terrorist organization.  They reiterated their call for the peacekeepers’ immediate and unconditional release.  There can never be any justification for attacks on or the detention of UN peacekeepers.”

The demand for delisting is particularly striking. On the one hand, it suggests that targeted sanctions are relevant to this group, whether for practical or symbolic reasons.  On the other hand, there continues to be debate about the Security Council’s legal basis for placing demands on or regulating non-state actors.

In the Kosovo Advisory Opinion, the ICJ indicated the Security Council could create obligations for non-state actors, but the conferral of rights, obligations, and status on subjects of law without their participation in the international law making process continues to be controversial as the ILA’s 2014 report on Non-State Actors explores.  Both the Council’s imposition of sanctions and its demand for the peacekeepers’ immediate and unconditional release in the press statement, (and here it is relevant that press statements are considered decisions of the Council) raise interesting and important issues in international law.

Robust Peacekeeping Missions

by Kristen Boon

Peacekeeping missions such as the UN’s intervention brigade in the DRC (established within MONUSCO by Security Council resolution 2098) have important legal implications. In particular, if the Brigade is considered a party to the conflict in the Congo, do peacekeepers become combattants?   Can they be captured and detained? For an overview of the main issues see the ASIL analysis by Bruce Oswald here & the new ICRC review.

New peacekeeping missions also raise questions of attribution.   Is the standard of attribution set out in Art. 7 of the Draft Articles on Responsibility of IOs sufficient? How should brigades be considered in relation to the peacekeeping mission as a whole? If wrongdoing occurs, how should responsibility be divided between multiple troop contributing countries and regional forces including NATO and the AU, who may contest any assertion they have international legal personality?

For those interested in this topic, an excellent panel discussion was held at the Irish Mission to the UN this summer.  The panelists, including UN Ambassadors and a retired Force Commander, discuss the “C2” (command and control) structures of peacekeeping missions and their views of future challenges.   The discussion can be viewed here.

In addition, at the upcoming ESIL meeting in Vienna in September, the Amsterdam SHARES project, in conjunction with the ESIL peace and security interest group, has organized a special symposium to tackle some of these issues.  I will be speaking there, and am looking forward to the discussion.

Jurisdictional Overlap: Security Council Sanctions and the ICC

by Kristen Boon

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

 

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)

Mothers of Srebrenica Decision: Dutch Court holds The Netherlands Responsible for 300 Deaths in 1995 Massacre

by Kristen Boon

On Wednesday, a Dutch Court handed down a hotly anticipated decision on the Mothers of Srebrenica case, finding the Dutch state responsible for the deaths of 300 people who were sheltering with Dutchbat in July 1995, when the safe haven at Srebrenica fell.  The English translation is available here.

This ruling means the relatives of those 300 Bosniaks will be entitled to compensation.  Significantly, however, The Netherlands was cleared for the deaths of the more than 7000 other victims who were in and around Srebrenica, such as those who fled to the woods nearby.

This case follows a related decision, in which the UN was found immune from process for the deaths at Srebrenica.   See the 2012 decision of the Dutch High Court here.   And a subsequent decision by the ECHR confirming the UN’s immunity.

In the present decision, the concept of effective control was central to the Court’s findings.  In para. 4.33 the Court cited the Nuhanovic decision and DARIO Art. 7, and defines effective control as “factual control” of the State over Dutchbat’s specific actions. (Later, in para. 4.46 the court suggests that effective control is “actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined.”) In Para. 4.37 the Court noted that command and control of Dutchbat was transferred from the Dutch state to the UN, which took place for the purpose of a UN peacekeeping operation based on Chapter VII of the UN Charter. The court found the Netherlands responsible for the deaths of those 300 because they were within its effective control.   See paras. 4.87 – 88.    In contrast, the 7000 who “fled to the woods”, and according to several claimants, did so on the basis of hand signals by Dutch soldiers, were not under the effective control of the Dutch state and hence not attributable to the Dutch state. The majority of those individuals then fell to Bosnian Serbs. Paras. 4.101 – 4.106.

The ruling also indicated that the Netherlands was responsible because the Dutch peacekeeping force, outnumbered by raiding Bosnian Serb forces, had handed over the same 300 Bosnian Muslim men and boys of fighting age after Gen. Ratko Mladic, commander of the forces, ordered that they be screened for war crimes. Para. 4.212. The District Court ruling said the peacekeeping force should have known that the Muslims were likely to be killed by the Serbs.

In my view, this decision will have three implications:

  • First, it will be of interest to Troop Contributing Countries, in that the determination of a national court that a state is responsible for the failure to prevent an atrocity and might be found liable for wrongs committed during a peacekeeping mission, despite an overarching UN Mandate, broadens the spectre of legal liability significantly.  In this vein, it should be considered alongside the Nuhanovic decision of 2013, also rendered by the Dutch Supreme Court, in which the Netherlands was found responsible for the deaths of 3 individuals during the 1995 massacre. I blogged about this case here.   On the relationship of the Nuhanovic decision to the Mothers of Srebrenica decision, see paras. 4.10 – 4.12.
  • Relatedly, it indicates the relevance of shared responsibility scenarios in international law. It develops the doctrine of attribution and related concept of effective control proposed by the ILC in the Articles on the Responsibility of IOs, and indicates that both a state and an IO can share effective control, and hence, potentially, responsibility, despite the UN’s presumptive immunity. See e.g. para. 4.45 in which the Court decides it does not need to examine whether the UN also had effective control, given the possibility of dual attribution. For magisterial treatments of this topic, see the work of the SHARES research project at ACIL, Amsterdam, run by Professor Andre Nollkaemper.   I note that I have a research interest in effective control, and have a forthcoming article on the topic to be published in the Melbourne Journal of International Law later this year.
  • Third, the decision brings us back to a very hot topic: the scope of UN immunity. Questions of UN immunity are front and center these days because of the three pending cases against the UN involving the introduction of cholera in Haiti. An important distinction between the Srebrenica decisions, and the Haiti Cholera cases, however involves operational necessity.   In the Srebrenica case, courts have been clear that the decision not to evacuate some of the Bosniacs near the safe haven fell within the context of operational necessity, which is central to the Security Council’s mandate under Chapter VII. Questions of operational necessity are considered “public” matters, which do not trigger the Art. 29 obligation to provide alternative means of settlement.   The idea behind the disctinction of public / private it that immunities are meant to protect the UN from vexatious litigation. By way of contrast, operational necessity has never been raised in the Haiti Cholera cases. To see my take on this distinction see my blogs here and here.

Are Security Council acts relevant to the formation of Customary International Law?

by Kristen Boon

Just like General Assembly resolutions can be indicative of state practice and opinio juris, I have always assumed that acts of the Security Council – an organ of the UN, composed of states – would be relevant as evidence and to the formation of customary international. Significantly, however, Security Council acts do not feature in the first report of the Special Rapporteur Sir Michael Wood, on the ILC’s current study on the formation of custom.  A word search reveals “zero” matches with Security Council, while the General Assembly comes up 13 times. There is no explanation in the report for why Security Council acts are not relevant to custom.

Given the Security Council’s power to legislate, this omission is both interesting and significant. One could surmise it is due to the Council’s composition – its members number 15 – as opposed to the universal membership of the General Assembly. Perhaps its not a big enough cross section, even though the P5 would presumably be big players in determining custom. Or perhaps it is related to the fact that the Council can act inconsistently, not always applying principles consistently in like cases. Further still, perhaps it emanates from distrust of the Council’s occasional role as a legislator. Indeed, if Security Council acts (and as a subsidiary matter, statements of Council members during meetings of the Security Council) are relevant to custom, then those same customary rules would bind the UN (and the Council as an organ of the UN), which raises important considerations with regards to the perennial debate about what legal limits apply to the Security Council.

The Council’s capacity to bind member states, and derivatively International Organizations, under Articles 25 and 48 is well established. Its ability to override inconsistent law under Article 103, and its demonstrated propensity to legislate in areas like anti-terrorism, and the many calls in the mid-2000s for Council power to be curbed through judicial review or other means, would lead one to expect at least consideration of the Council’s role.  It is noteworthy that in the Memorandum prepared by the Secretariat’s on the same topic, the Security Council is mentioned twice in relation to non-recognition of acts in breach of peremptory norms (citing the ILC’s commentary on State responsibility, which in turn cites Council resolutions on Iraq’s invasion of Kuwait and the situation in Rhodesia.) I note that Greg Fox and I are interested in the question of Security Council legislation, and are now embarking on an empirical assessment of the Council’s law-making in relation to the field of armed conflict.  As a result, I may have a vested interest in the debate…  Nonetheless, what do readers think:  should Security Council decisions be considered in regards to the formation of customary international law?

High Level Sanctions Review Launched at the UN

by Kristen Boon

A new High Level sanctions review has been initiated at the UN, sponsored by the UN Missions of Australia, Finland, Greece and Sweden, in combination with Brown University and the sanctions consulting firm CCI. The purpose of the review is to assess existing sanctions and develop forward looking recommendations to enhance effectiveness. A similar process took place in 2006, known as the Informal Working Group on General Issues of Sanctions, which resulted in some important policy documents for sanctions regimes.

This new review will focus on three issues:

  • UN integration and coordination on the implementation of UN sanctions (addressing opportunities to improve sanctions integration and coordination among the UN entities supporting the Council’s sanctions function, including sanctions committees, expert groups, the Ombudsperson and the Secretariat)
  • UN sanctions and related institutions and instruments. (addressing the intersections between UN sanctions and other international instruments and institutions dealing with international security, such as international arms control and disarmament mechanisms, international financial and economic regulatory systems, and international criminal justice institutions)
  • UN sanctions, regional organizations, and emerging challenges (Addressing opportunities to optimize UN sanctions as an effective tool in response to serious and systematic violations of human rights and international humanitarian law, enhance coordination with regional sanctions, and explore new applications to address evolving threats to international peace and security)

This promises to be an important endeavor. While some member states stressed that there was no need to “reinvent the wheel”, others noted the importance of coordinating with the ICC and not overburdening developing states.

From my perspective, this process will be relevant to international lawyers for three reasons:

  • There are increasingly complex questions about how sanctions committees interact with other mechanisms. Are sanctions, which target individuals, incompatible with peacekeeping exercises, which usually have a mandate of neutrality? How should sanctions, which focus on conflict prevention and peace building, interact with international judicial mechanisms, which focus on deterrence, and longer term judicial processes for individual criminal responsibility? Relatedly, how can the work of the ICC and sanctions committees be better coordinated?
  • What process of review should apply to targeted sanctions generally? Currently only the Al Qaida sanctions regime is overseen by an administrative review mechanism in the form of the UN Ombudspersons office. Individuals and entities targeted under other sanctions regimes only have access to a “focal point” which is viewed as being not much more than a mailbox, given its limited mandate. The ECJ’s Kadi decision of 2013 raised stakes on due process, finding that even the Ombudspersons office does not meet the standard of effective protection. The battle between sanctions regimes and courts has begun, with potentially significant stakes for the supremacy of Security Council resolutions under Art. 103 of the Charter, and the ability of states to implement sanctions in the face of court challenges.
  • Finally, the situations in which sanctions are applied are increasingly innovative. Hate speech, poaching of wildlife products, protection of civilians, exploitation of natural resources – these are but a few of the justifications for imposing sanctions in the last decade.   These indicate a broadening view of what constitutes a threat to the peace and a deepening interest in using sanctions as a broad based tool.

To watch the opening meeting and see the statements, the video is available here.

Haiti Cholera Case: New Briefs Filed on Privileges and Immunities

by Kristen Boon

New briefs have been filed in the Haiti Cholera case against the UN, now pending in the SDNY.    Plaintiffs filed a response to the US Government’s Statement of Interest, in which the US defended the UN’s absolute immunity.  The important treaty law argument the Plaintiffs advance in response is that:

Both international law and U.S. law provide that a material breach of a treaty or contract by one party excuses performance by other parties. Defendants’ failure to establish a standing claims commission, or any other mechanism for relief, should deny Defendants the benefits of immunity and the right to shield themselves from responsibility in the instant case.

In other words, they argue that the Convention on Privileges and Immunities of the UN has been suspended because the UN failed to set up a standing claims commission as required under Article 29.

In addition, two amicus briefs have been filed.  The first is by a group of International Law Scholars who argue that the the UN has an obligation to respond to claims of a private law nature, and that the Haiti cholera case does not involve operational necessity.

The second is by a group of European Law Scholars, who provide information to the Court on how cases on Privileges and Immunities have been addressed in European jurisdictions.   In particular, they analyze the important precedent of Waite and Kennedy, in which a “reasonable alternative means” test was adopted.    They also distinguish the Mothers of Srebrenica case in which the Dutch Supreme Court and later the ECtHR upheld the UN’s absolute immunity, because the Security Council was considered to be fulfilling its core function and the core of the case involved operational necessity.

Each of these briefs raises important international law arguments and ultimately invites the SDNY to decide whether the UN’s immunity is conditioned on the requirement to provide a forum for the settlement of private disputes.