Recent Posts

Huge Win in the Zimbabwe Torture Docket Case

by Kevin Jon Heller

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 issues in the case were (1) whether South Africa’s adoption of universal jurisdiction over torture obligated SAPS to investigate the torture, and (2) if so, what conditions, if any, qualified that obligation.

As Chris noted in his post, I and three other international criminal law scholars (Gerhard Kemp, John Dugard, and Hannah Woolaver, with Hannah doing most of the heavy lifting) filed an amicus brief with the Court addressing the question of whether anything in international law prohibits a state from opening a universal-jurisdiction investigation in absentia — without the presence of the suspect. That was a critical sub-issue in the case, because although the Zimbabwean suspects travel regularly to South Africa, they would not necessarily be present at the beginning of a SAPS investigation.

The Court released its decision today — and it’s a complete win for the amici and (far more importantly) for the excellent Southern Africa Litigation Centre (SALC), which brought the case. First, with regard to the in absentia issue, the Court agreed with amici that international law did not prohibit universal-jurisdiction investigations in absentia (p. 27). I won’t rehash the Court’s analysis, but I do want to quote the Court’s excellent explanation of why states should be allowed to conduct such investigations (p. 28):

[48] This approach is to be followed for several valid reasons. Requiring presence for an investigation would render nugatory the object of combating crimes against humanity. If a suspect were to enter and remain briefly in the territory of a state party, without a certain level of prior investigation, it would not be practicable to initiate  charges and prosecution. An anticipatory investigation does not violate fair trial rights of the suspect or accused person. A determination of presence or anticipated presence requires an investigation in the first instance. Ascertaining a current or anticipated location of a suspect could not occur otherwise. Furthermore, any possible next step that could arise as a result of an investigation, such as a prosecution or an extradition request, requires an assessment of information which can only be attained through an investigation. By way of example, it is only once a docket has been completed and handed to a prosecutor that there can be an assessment as to whether or not to prosecute.

The Court then proceeded to hold that SAPS not only had the right to open a universal-jurisdiction investigation into torture in Zimbabwe, it had an obligation to do so — a remarkable position for the Court to take…

ICC and Palestine Event at George Mason

by Kevin Jon Heller

The event at George Mason University on the ICC and Palestine is today. Here, again, is the flyer:

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If you cannot attend, the live-stream link is here.

Weekly News Wrap: Monday, October 20, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Australian police have agreed to assist China in the extradition and seizure of assets of corrupt Chinese officials who have fled with hundreds of millions of dollars in illicit funds, the Sydney Morning Herald newspaper reported on Monday.

UN/World

Ebola will be a Chapter VII issue

by Jens David Ohlin

Right now, the Ebola virus is spreading across the Africa, and the ability of the most affected states – Sierra Leone, Liberia, and Guinea – to stop and contain the virus is very much in doubt. Although only a few cases have been reported in the United States and Europe, it is clear that it will be impossible to completely avoid disease transmission here.

Furthermore, it is also clear that the healthcare systems of Spain and the United States have been incapable of correctly handling cases so as to prevent transmission of the disease. In the U.S., for example, the healthcare system was unable to correctly contain an outbreak that initially started with just one patient. Imagine what would happen if the United States were facing 1000 cases of Ebola. Although clearly the U.S. has more resources to deal with such a scenario than, say, Sierra Leone or Liberia, the current cases do not inspire confidence.

One of the factors leading to the spread of Ebola is the high mobility of today’s populations. We no longer live in one city or even one country. We move around. Once Ebola changed from a rural virus to an urban disease, it became that much easier for the disease to reach epidemic levels.

The other reason the disease spread so quickly is that the governments of Liberia, Sierra Leone, and Guinea responded inappropriately to the outbreak. They did not put in place the required measures to identify and isolate potentially infected Ebola patients. Also, medical personnel did not – and in many cases still do not – have access to the necessary protective equipment to prevent them from contracting the virus and, in turn, passing it along to others. The failures here run deep and are systemic.

The outbreak will cross international borders, potentially overwhelming national healthcare systems, and causing thousands of deaths. Experts have already predicted that, absent appropriate intervention and global resources, by the end of November the outbreak could claim as many as 10,000 new infections each week. Imagine what the weekly infection rate will be in January, or next June. The infection rate increase exponentially; the numbers are truly frightening.

The media attention to the disease has been schizophrenic. On the one hand, news outlets are reveling in public hysteria over Ebola because it no doubt increases readership and viewership. At the same, the same media outlets run stories or commentaries decrying the public hysteria as irrational and disproportionate to the level of threat. The latter is incredibly unhelpful because it ignores the fact that many governments, in both Africa and even the United States, have under-reacted to the threat and therefore missed the boat with regard to early containment. I think much of the public hysteria is warranted and rational because the government has done insufficient planning for a worst-case scenario situation.

All of this adds up to a situation that may very well threaten international peace and security. The director of the W.H.O. has already said as much, although I’m not sure if she was aware of the legal consequences of this statement. In any event, I am aware of the legal consequences, and I do believe that Ebola may become a threat to international peace and security.

Once that happens, the Security Council will have the authority under Chapter VII to declare Ebola a threat to international peace and security and to authorize measures to repair the breach. Those remedies could include outside interventions in effected countries even in the absence of local government consent. The time might come when outside governments need to do more than offer assistance; they might need to take control over the response, not just because of a humanitarian obligation but also from collective self-interest. The way to defeat Ebola will be to take the fight to Africa rather than sit back and wait for it to come here.

This issue doesn’t line up as Africa versus the rest of the world. The countries with the greatest interest in seeing a more intrusive global response are the African nations that border on the outbreak but have so far remained Ebola-free. If the outbreak spreads, they will be the hardest hit and it is their interests that would be most vindicated by a global intervention. An uncontained outbreak in Sierra Leone, Liberia, and Guinea is a disaster for their African neighbors.

Outside intervention would infringe the sovereignty of the host governments, but with a Chapter VII enforcement resolution from the Security Council, those putative violations of sovereignty would be lawful and consistent with the U.N. Charter.

I hope none of this becomes necessary. I hope the Ebola outbreak is contained and eliminated next week. I hope one of the vaccines proves effective and the whole world gets the vaccine by January. But there is no rational reason for optimism. Disaster planning requires preparing for the worst. If Ebola lingers and spreads, it makes sense to think now of the appropriate global response, the role of the U.N. and the Security Council in leading that response, and the structure of a legal argument that would justify intrusive interventions.

Events and Announcements: October 19, 2014

by Jessica Dorsey

Events

  • On Thursday, November 13, 2014, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group will convene a book workshop on “International Law as Behavior,” at Tillar House, 2223 Massachusetts Ave., NW, ASIL’s headquarters in Washington, DC.  Organized by Harlan Cohen (University of Georgia School of Law), the workshop will bring together scholars working at the cutting edge in a variety of different fields, including constructivist international relations theory, anthropology, behavioral law and economics, organizations theory, social psychology, and sociology to discuss how these approaches can best be applied to the study of international law, how these approaches can complement both each other and positivist and rationalist accounts, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave, how their rationality is bounded by psychology, how they operate as members of groups and recipients of culture, and how they write and follow organizational scripts.  Participants include Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Martha Finnemore (George Washington University School of Law Elliott School of International Affairs), Jean Galbraith (University of Pennsylvania Law School), Derek Jinks (University of Texas School of Law), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School).  A book based on presentations at the workshop will follow.  For more information and to register, please click here.
  • 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 16-17 November 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 Justice Workshop at the University of Johannesburg. At the conference, international and local scholars will share perspectives on current theories and practices that can shed light on possible transitional justice processes for Israel/Palestine, and students will present papers based on their research during the workshop. Please find conference program hereFor further information please contact minerva [at] tauex [dot] tau [dot] ac.il
  • On 3 December 2014 the International Humanitarian and Criminal Law Platform, a research platform coordinated by the T.M.C. Asser Instituut, is hosting a conference:The Cyber Warfare Manual: A Detailed Assessment. This conference, organized in cooperation with the Netherlands Ministry of Defence, the Gerda Henkel Stiftung and the University of Amsterdam, will bring together top researchers and practitioners to critically discuss and assess the Manual, which is the result of a three-year effort by a distinguished group of international experts to examine how existing international law norms apply to this ‘new’ form of warfare. The conference will provide a general forum where the international legal community of The Hague and beyond can engage with people who were involved in the drafting of the Manual and others to discuss whether, and if so how, existing law can be applied to cyber threats.
  • Letters Blogatory, along with the Center for Transnational Business and the Law at Georgetown University Law Center, will be hosting an event to commemorate the 50th anniversary of the conclusion of the Hague Service Convention. The event, to be held in Washington on February 19, 2015, will bring together practitioners, central authority representatives, and academics to discuss and celebrate the Convention’s legacy and to look ahead to its future. There will be plenty of time for meeting and greeting, too! Please do mark your calendars, and RSVP. More information can be found here.
  • The Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa invites applications from researchers, graduate students (MA, Phd., Post-doc) and practitioners to take part in the Minerva Center’s research on cyber regulation, policy and theory during the 2014-2015 Academic Year. More information can be found here. The application deadline is 1 December 2014.
  • The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway from 10-12 September 2015. It is hosted by the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo. The theme is: The Judicialization of International Law – A Mixed Blessing? More information can be found here.

Calls for papers

  • The Oil, Gas, and Energy Law (OGEL) and Transnational Dispute Management (TDM) Journals invite submissions for a joint Special Issue on Renewable Energy Disputes. These disputes may involve issues of public international law, EU and US law (at the supranational, national and subnational levels), private law and contractual arrangements. The Special Issue will examine these types of disputes and analyses their backgrounds and the reasons why they arose. Papers should be submitted by 15 January 2015 to the editor of the special Professor Kim Talus (University of Eastern Finland).

Announcements

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Weekend Roundup: October 4-17, 2014

by An Hertogen

This fortnight on Opinio Juris, Jens discussed how to get Quirin right when Quirin was wrong. Kevin asked for sources backing the US position on self-defence against non-state actors, while Kristen gave an overview of the legal issues up for debate at the General Assembly this fall. Julian expressed doubts about the strength of Greece’s legal arguments for the return of the Elgin Marbles.

We also had a range of guest posts, with Başak Çalı commenting on the Tory attack on the European Human Rights system, and Oliver Windridge discussing how a recent decision by the Director of Public Prosecutions for England and Wales confirms that there is no immunity for torture in England and Wales. Yanying Li followed up on an earlier post discussing the recent reforms for more orderly sovereign debt restructurings at the IMF.

Finally, Jessica and I wrapped up the international law headlines (1, 2) and listed events and announcements (1, 2). Our DC-based readers can hear Kevin speak on Monday at an event at George Mason University on the ICC and Palestine.

Many thanks to our guest contributors and have a nice weekend!

Does Greece Really Have a Legal Case for the Return of the Elgin Marbles? I Doubt It

by Julian Ku

Amal Alamuddin-Clooney, Kevin’s Doughty Street Chambers colleague, made news this week by visiting Greece as part of a legal team working for the return of the Elgin Marbles to Greece from Britain.  This is not ordinarily global tabloid fodder, but Alamuddin-Clooney’s recent marriage means she will draw media attention wherever she goes.

I don’t doubt her legal credentials (as well as that of her colleagues), but I do doubt the strength of their legal case for the return of the Marbles.  At the time the Marbles were removed from Greece, the Ottoman Empire had sovereignty over Greece and there is pretty decent historical evidence that Lord Elgin had their authorization to remove the Marbles, or if he did not have authorization, his removal was ratified by official acts of the Ottoman government.  (John Merryman seems to have made the most complete case here).

To be sure, there are strong moral arguments for the return of the Marbles to Greece. But Alamuddin-Clooney and her colleagues are hired for their legal expertise. On this front, I think they have a very tough case (which may be why they appear to have ruled out litigation already).  But I am open to counter-arguments (based on law, not on cultural nationalism) for the Greek case. .

Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture

by Oliver Windridge

[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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Guest Post: Recent Reforms for More Orderly Sovereign Debt Restructurings at the IMF

by Yanying Li

[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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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.

 

Panel at George Mason on the ICC and Palestine

by Kevin Jon Heller

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:

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I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.

Weekly News Wrap: Monday, October 13, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • UN Secretary-General Ban Ki-moon has made a surprise visit to the Libyan capital aiming to bolster talks between rival groups that have divided the North African nation with two separate parliaments and governments.