In association with the International Commission of Jurists

Regions

05 Nov

[Giacomo Pailli is a PhD in comparative law at University of Florence, Italy] Many readers will recall the judgment of the International Court of Justice in Germany v. Italy, where the Court upheld Germany’s claim of immunity under international law vis-a-vis Italy’s exercise of jurisdiction over certain Nazi crimes that had occurred during World War II. The decision received a lot...

|
30 Oct

Earlier this year, Chris Gevers blogged about the Zimbabwe Torture Docket case, in which the Constitutional Court of South Africa was asked to determine whether the South African Police Service (SAPS) is required to investigate allegations that high-ranking government and security officials in Zimbabwe committed acts of torture. Those acts took place solely in Zimbabwe and involved only Zimbabweans, so the key...

|
29 Oct

In observance of United Nations Day on October 24, China's foreign minister Wang Yi issued a long statement expressing China's view of itself as a "staunch defender and builder of international law" (Chinese version here). As China-watchers know, China's Communist Party has just completed its "Fourth Plenum" (sort of a Party leadership strategy meeting) on the theme of the promotion of...

|
28 Oct

Lawyers for the Lago Agrio plaintiffs have filed a communication with the ICC asking the OTP to investigate Chevron officials for alleged crimes against humanity in connection with the company's "rainforest Chernobyl" in Ecuador. Ecuador ratified the Rome Statute in 2002. Regular readers know my sympathies -- both ethical and legal -- lie squarely with the Lago Agrio plaintiffs. The only thing more...

|
25 Oct

While in DC last week for the ICC/Palestine event at George Mason -- I'll post a link to the video when it becomes available -- I had the pleasure of sitting down with Lawfare's Wells Bennet and Just Security's Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended...

|
24 Oct

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten's new post at Justice in Conflict is so good -- and so important -- that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada's right-wing government for creating a political environment ripe for terrorism without in any way suggesting that...

|
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.
|
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,...

|
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.
|
03 Oct

[Alvin Y.H. Cheung is a Visiting Scholar at the US-Asia Law Institute at NYU School of Law.] After two years of increasingly acrimonious debate over Hong Kong’s electoral reforms for 2017, the city’s pro-democracy movement has finally attracted global concern.  A consistent theme of international responses has been that Hong Kong’s democratisation should occur in accordance with the Basic Law, the...

|
02 Oct

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in "contempt" for trying to circumvent that US court's orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in "contempt" because it is an affront to its sovereign dignity (with Argentina's...

|