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Recent Posts

16 Oct

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.] Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, in torturing persons involved in the political protests in Bahrain in April 2011. Unfortunately, since the DPP withdrew from the case just prior to the court hearing there does not appear to be a final judgement, only this 2013 directions hearing judgement which  sets out the parties' submissions. As background, FF took part in Bahraini political protests in February and March 2011 which resulted in him being allegedly badly beaten by police and held without charge. In July 2012 a dossier prepared by the European Center for Constitutional and Human Rights (ECCHR) alleged that Prince Nasser was directly involved in the torture of detained prisoners linked to the same political protests FF participated in. In addition to being the son of the King of Bahrain, Prince Nasser also holds the position of Commander of the Royal Guard. The ECCHR’s dossier was handed to the British police which in turn lead the Crown Prosecution Service for England and Wales (CPS) to indicate in August 2012 that Prince Nasser would enjoy personal immunity under Section 20 of the State of Immunity Act 1978 since Prince Nasser was a member of the Bahraini royal household and/or functional immunity pursuant to section 1 of the same act in relation to any conduct in his role as Commander of the Royal Guard. Following a request for review of the CPS’s decision, the CPS Special Crime and Counter Terrorism division indicated in September and October 2012 that Prince Nasser did not enjoy personal immunity under Section 20 (1) (b) of the 1978 Act as his household was independent from that of his father, the King of Bahrain. It maintained however, that Prince Nasser still enjoyed functional immunity under Section 1 of the 1978 Act based on his position as Commander of the Royal Guard of Bahrain FF sought judicial review of the CPS’s decision submitting that Section 1 of the 1978 Act does not apply to criminal proceedings. He cited in support Pinochet III and Jones v Saudi Arabia, both of which he argued supported his contention that public officials of foreign states have no functional immunity from criminal process in relation to the international crime of torture.  FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission. As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted that Prince Nasser does not enjoy immunity from torture allegations and withdrew from the case.
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16 Oct

[Yanying Li is a Ph.D researcher at Leiden University, the Netherlands, and a visiting research fellow at the University of Cambridge] Recent reforms for more orderly sovereign debt restructurings have been prompted by the so-called “trial of the century” in sovereign debt restructuring— NML Capital Ltd. v. Republic of Argentina. In short, various court decisions in New York found Argentina in breach of the pari passu clause in its defaulted bonds, and prohibited Argentina from making payments to those creditors who accepted the bond exchange offer unless other creditors who rejected the exchange offer (i.e. holdout creditors), including plaintiffs in this case, were paid the same percentage of the amount due to them. The pari passu clause in question provides that the debtor’s payment obligation under that particular bond series shall rank equally with all other existing and future unsubordinated and unsecured external indebtedness. Given that Julian has already addressed the latest development in this case, my little contribution here will only focus on the issues of legal reform in the context of sovereign debt restructuring. As discussed in my earlier post, on September 9, 2014, the United Nations General Assembly adopted a resolution entitled “Towards the establishment of a multilateral legal framework for sovereign debt restructuring processes”. The modalities for the intergovernmental negotiations and the adoption of the text of the multilateral legal framework will be discussed at the General Assembly’s 69th session plenary meeting on November 14, 2014. In the meantime, the directors and staff at the International Monetary Fund did not just sit back and relax. As noted in Press Release No.14/459dated October 6, the IMF’s Executive Board approved the staff paper on “Strengthening the Contractual Framework to Address Collective Action Problems in Sovereign Debt Restructuring”. The staff paper suggests a few contractual reforms designed to tackle collective action problems so as to achieve orderly sovereign debt restructurings. These reforms include potential changes to international sovereign bond contracts, namely the pari passu clause and the collective action clause (“CAC”).
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15 Oct

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...

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14 Oct

I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent -- David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer: I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do,...

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13 Oct

Your weekly selection of international law and international relations headlines from around the world: Africa Two people were killed in fighting in the capital of Central African Republic and six peacekeepers from Burundi and Cameroon were wounded in an ambush, a spokeswoman for the United Nations mission in the country said on Saturday. Middle East and Northern Africa Kurdish defenders held off Islamic State...

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12 Oct

A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors: Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time. As the quote makes...

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12 Oct

Events The Minerva Center for Human Rights at Tel Aviv University is pleased to invite the public to the conference “Lessons for Transitional Justice in Israel-Palestine”, to be held on November 16-17, 2014 at Tel Aviv University. The conference builds on an academic collaboration between Israeli, Palestinian and South African students and researchers who participated last summer in an intensive two-week Transitional...

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10 Oct

On Monday, the defense in the Al Bahlul case filed their reply brief. The case is important because it squarely presents the issue that was left hanging after Hamdan, i.e. whether the military commissions have jurisdiction to try inchoate conspiracy. It also raises the far deeper question of whether the jurisdiction of the military commissions is limited to offenses against...

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06 Oct

Your weekly selection of international law and international relations headlines from around the world: Africa The NYTimes carried an opinion piece on the Kenyatta case. Middle East and Northern Africa Israel's PM Netanyahu has called US criticism of the approval of new settlements in East Jerusalem "un-American". Israel will summon Sweden's Ambassador over the announcement that the new Swedish government will recognize the State of...

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05 Oct

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law] We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time. Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.
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05 Oct

Events International Criminal Court Prosecutor Fatou Bensouda will keynote “Children & International Justice,” a conference to be held on Tuesday, October 28, 2014, at the University of Georgia School of Law in Athens, home institution of the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, Professor Diane Marie Amann. Taking part will be experts from academia and the...

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04 Oct

This week on Opinio Juris, the debate on the AUMF continued with Kevin pointing out the lack of evidence on Khorasan's existence and the denuding of the concept of self-defence, and Jens discussing how ground troops will be necessary in the battle of ISIS, which requires a better legal foundation for the operation than the AUMF. On a comparative and lighter note,...

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