Recent Posts

Jens Ohlin Joining Opinio Juris

by Kevin Jon Heller

It is my great pleasure to announce that Jens Ohlin, Professor of Law at Cornell, is joining Opinio Juris as its newest masthead member. (Astute readers will have noticed he was added there yesterday!) I doubt Jens needs much introduction, but here is a snippet from his Cornell bio anyway:

Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest book,The Assault on International Law, forthcoming from Oxford University Press, challenges the prevailing American hostility towards international law, and offers a novel theory of rationality to explain why nations should comply with international law. 

Ohlin’s research also focuses on the laws of war, in particular the impact of new technology on the regulation of warfare, including remotely piloted drones and the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts. His books in this area include Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press 2012, with A. Altman & C. Finkelstein); Cyber-War: Law & Ethics for Virtual Conflicts (Oxford University Press forthcoming, with C. Finkelstein & K. Govern); and Defending Humanity: When Force is Justified and Why (Oxford University Press 2008, with George Fletcher). 

We are very lucky to have Jens joining us. In addition to being ridiculously prolific, he is also ridiculously good; I think there is little question that Jens is one of the most important IHL and ICL scholars of his generation. I never fail to learn from his work, even — and perhaps especially — when I disagree with it. I don’t think I’m alone in that; there are very few scholars in IHL and ICL who are so uniformly respected by both the left and the right.

I can’t wait to see what Jens chooses to write about at Opinio Juris. Please join all of us in welcoming him to the blog. And check out his new book!

Emerging Voices: Sexual Violence As War Crime: Controversial Issues in the International Criminal Court

by Rosemary Grey

[Rosemary Grey is a PhD Candidate at the Faculty of Arts and Social Sciences, University of New South Wales.]

The case of The Prosecutor v Bosco Ntaganda, which is currently before the International Criminal Court (ICC), is the latest of several cases in the ICC and Special Court for Sierra Leone (SCSL) to address the issue of sexual violence against female child soldiers by members of their own group.

The accused, Ntaganda, is the alleged former commander of the Union des Patriotes Congolais-Forces Patriotiques pour la libération du Congo (UPC-FPLC), an armed group which in 2002 and 2003 was involved in the non-international armed conflict in the Democratic Republic of Congo (DRC).

On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Ntaganda, including charges for the rape and sexual slavery of female child soldiers in the UPC–FPCL by their commanders and fellow soldiers, which the ICC Prosecutor characterized as war crimes under Article 8(2)(e)(vi) of the Rome Statute. This was the first time that Article 8(2)(e)(vi) had been used to prosecute sex crimes committed against child soldiers by members of the same armed group.

I recently discussed the Pre-Trial Chamber’s decision on Beyond The Hague; here I will focus on the parties’ interpretation of Article 8(2)(e)(vi), and highlight some important gender issues raised by this case.
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Yukos Shareholder Wins $50 Billion Arbitration Award Against Russia (Yes, that’s Billion With a “B”)

by Julian Ku

Some lawyers at Shearmen & Sterling are no doubt celebrating what may be the largest single arbitration award in history (text of award here). Their client, a shareholder of the expropriated Russian oil company Yukos, has won a $50 billion award against Russia in an investor-state arbitration (seated at the Permanent Court of Arbitration) under the Energy Charter Treaty.   Michael Goldhaber at the American Lawyer has the first and fullest coverage of this historic award.

There are lots of legal battles ahead. Enforcement is going to be challenging, as it always is against sovereign states. And the award has some very interesting observations on legal issues such as the “unclean hands” doctrine under international law.  But for now, this is quite a victory for the plaintiffs to savor and it is already taking a toll on Russia’s stock market.  (And it is a rough few months for the folks over at Cleary Gottlieb, who are also representing Argentina in its unsuccessful battle with its holdout bondholders).

Weekly News Wrap: Monday, July 28, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

Oceania

UN/Other

Events & Announcements: July 27, 2014

by An Hertogen

Call for Papers

  • A conference on General International Law and International Economic Law: An (Un)Easy Relationship? will be held at the Lomonosov Moscow State University on April 17, 2015. The conference seeks to address the challenges created by application of the general international law to international economics context as well international economic law influence on evolution of general international law. Abstracts should be submitted by September 30, 2014. For further information please refer to the call for papers.

Events

  • On November 13-14, 2014, Ghent University (UGent) will be hosting an international two-day conference at the occasion  of the twentieth anniversary of the entry into force of the UN Convention on the Law of the Sea. The conference, organized in partnership with the Vrije Universiteit Brussel (VUB), Université catholique de Louvain-Mons (UCL-Mons) and the Université Libre de Bruxelles, will bring together expert scholars from within and without Europe, as well as practitioners and civil servants (e.g., ITLOS, International Seabed Authority, FAO). Four different panels will address the importance of UNCLOS for the maintenance of international peace and security; its importance for the global economy; for the protection of the marine environment, and; the Convention?s compulsory dispute settlement mechanism. Detailed information (including programme, venue and registration details) can be found on the conference website.
  • On September 19-20, The Surrey International Law Centre of the University of Surrey School of Law, with the support of the Institute of Advanced Studies, the McCoubrey Centre of the University of Hull and the British Institute of International and Comparative Law, will host a two-day workshop on the identification of core standards of procedural fairness before international courts and tribunals. The workshop employs a comparative approach whereby participants will analyse the procedures and practices of various international courts and tribunals. It aims to identify patterns of commonality and divergence and to develop a holistic understanding of the nature of procedural fairness and of the challenges to its realisation in the international judicial system. More information can be found here.

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.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Weekend Roundup: July 19-25, 2014

by An Hertogen

This week on Opinio Juris, our Emerging Voices symposium continued with a post by François Delerue on cyber operations and the prohibition on the threat of force, a comparison by Otto Spijkers of the Nuhanović and Mothers of Srebrenica cases, and Arpita Goswami’s analysis of the PCA’s recent Bay of Bengal Maritime Arbitration Case between India and Bangladesh.

We also welcomed Jens Ohlin for a guest posting stint. This week, Jens discussed competing theories of control in light of the downing of Malaysian Airlines Flight 17 and two decisions by the European Court of Human Rights on Poland’s involvement in CIA Black Sites on its territory.

Other guest posts were by Jonathan Hafetz who discussed the D.C. Circuit’s en banc ruling in Al Bahlul and by Charles Kels who followed up on our recent symposium self-defence during armed conflict.

Of our regular bloggers, Kevin explained why comments by Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, can be seen as advocating crimes against humanity, but not genocide, against Palestinians. He also summarized the al-Senussi admissibility decision in two quotes. Kristen discussed interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.

Finally, Jessica wrapped up the news and listed events and announcements.

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

Guest Post: Henderson & Cavanagh on Self-Defense During Armed Conflict

by Charles Kels

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. He is writing in his personal capacity and his contribution is not meant to represent the views of the Department of Homeland Security, Air Force or Defense.]

Group Captain Henderson and Squadron Leader Cavanagh’s series of posts comparing and contrasting the Law of Armed Conflict (LOAC) and self-defense under criminal law (first, second, third, and fourth parts, along with the responses to posts one and four) provides an excellent analysis of how the legal basis for the application of force impacts the conditions upon its lawful use.

It is hard to argue with the central premise of the discussion: simply put, self-defense is not a part of LOAC. As the authors note, it is a term applicable to specific scenarios—namely, as a defense under criminal law and as a justification for the resort to force by states—and has different meanings depending upon the context in which it is invoked. This, by the way, is why I think the concept of “naked self-defense” as a standard for targeted killings is misplaced: it impermissibly (and I would argue counterproductively) conflates the jus ad bellum with the jus in bello.

The same can be said about the related issue of imminence. It has one meaning under a state’s right of self-defense, and another meaning under the law enforcement “force continuum,” but I’m unaware of any relevance to status-based targeting under LOAC. This is why some of the Obama administration’s pronouncements regarding imminent threats in the midst of what it deems an armed conflict have at times been so confusing.

The inapplicability of self-defense to LOAC is aptly encapsulated by Professor Ohlin vis-à-vis its interplay with the combatant’s privilege: the latter trumps the former, thereby rendering reliance upon it both unnecessary and self-defeating. Claiming self-defense in the face of criminal or disciplinary proceedings is essentially an excuse, but a privileged combatant who has exercised lethal force in compliance with LOAC has no need for vindication. In fact, he or she may be in line for a medal.

Yet, I am left wondering whether the discussion thus far elides a larger issue, rooted not in LOAC per se, but in the moral framework that undergirds it. That is, to what extent does the internal logic of LOAC as a coherent legal regime rest upon a generalized notion of individual self-defense? To the extent this insight has merit, I of course can’t take credit for it, although I have tried to flesh out its implications for remotely-waged warfare. It stems from Walzer’s famous formulation  (p. 34) of the “moral equality of soldiers,” and has found perhaps its most eloquent expression in the writing of legal philosopher Paul Kahn.

Essentially, Walzer’s notion is that “the capacity to injure” is what makes combatants legitimate targets in war. Kahn takes that argument to its logical conclusion, claiming that “the internal morality of warfare” is based upon the principle of “self-defense within conditions of reciprocal imposition of risk.” As such, what we lawyers call the combatant’s privilege is at heart “the soldier’s privilege of self-defense.”

Of course, given the irrelevance of imminence to LOAC, the risk posed by the identified enemy need not be immediate—hence another of Walzer’s well-known examples, the “naked soldier” (p. 138). Presumably, however, when that soldier gets dressed, he just may try and kill you (and may even be obligated to do so). This is what differentiates him from those who are hors de combat. So better to shoot him now, while you have the chance. What Michael Ignatieff calls the “tacit contract” of “kill or be killed” (p. 161) is still intact, even if attenuated.

One way to respond to Walzer, Kahn, and Ignatieff, et al. is simply to say that they’re wrong. Mutual risk has nothing to do with LOAC. To the extent that LOAC is concerned with promoting reciprocity, it’s a reciprocity of compliance, not physical peril. The jus in bello principle of proportionality, of course, imposes no requirement whatsoever with respect to parity in casualty rates among opposing forces.

Even so, it’s hard to deny that the reductive notion of combat as self-defense has intrinsic appeal, if nothing else than for providing a conceptually digestible précis of LOAC for those who actually have to implement its tenets in less than ideal circumstances. After all, the true value of LOAC is not just that it forbids some inhumane practices, but also that it legitimates certain acts of violence so that soldiers can do their jobs “without resorting to their own personal moral codes” or becoming paralyzed by principled indecision. This is especially so where, as in today’s conflicts, exhortations to abide by LOAC in order to incentivize compliance by the enemy are likely to fall on deaf ears (not to mention fail the straight-face test). At the end of the day, adhering to LOAC is about preserving our own humanity, not performing a risk-benefit analysis.

None of this detracts from the cogency of Henderson and Cavanagh’s observations, nor does it obviate the importance of avoiding confusion with respect to both the different contextual meanings of self-defense and their divergence from wartime targeting rules. However, I’m not sure that it’s possible to get away completely from accounting for permutations of self-defense when we talk about war-fighting. Otherwise, we risk being legally correct in the technical sense, while losing sight of the larger discussion over what it means to fight honorably.

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.)

Emerging Voices: The Old Woe of Contemporaneity and Cartographic Evidence in a New Bottle

by Arpita Goswami

[Arpita Goswami currently serves as an Assistant Editor to China Oceans Law Review, and is a Graduate Assistant at the South China Sea Institute, Xiamen University, P.R. China. The views expressed here are her own and have no connection whatsoever to the above mentioned organizations.]

The recently concluded Bay of Bengal Maritime Arbitration Case between India and Bangladesh offers interesting insights into the application of the judicial pronouncements to the factual situation contemporaneous with it for determining the boundary lines and the usage of cartographic evidence in the same. This post examines the section of the Award delimiting the riverine boundary between the two States. The reasoning given by Tribunal in this case makes an interesting read regarding the technicalities of demarcation of boundaries, challenges in the contemporaneous applications and the validity of cartographic evidence in such an application.

Background (para. 50-55 of the judgment)

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India, the states of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 which was chaired by Sir Cyril Radcliffe. In Aug. 1947, the Commission submitted the report describing the boundary, and is known as “Radcliffe Award”. However, in 1948 the Indo-Pakistan Boundary Dispute Tribunal was set up by India and Pakistan to address the disagreement in the application of the Radcliffe Award. In 1950, the above mentioned Tribunal gave its Award, known as the “Bagge Award”.

In 1971, East Pakistan declared independence from West Pakistan, and succeeded as a new state of Bangladesh to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. Among its tasks of finding the land boundary terminus anddelimiting the territorial sea, EEZ and continental shelves between the two States, the present Tribunal also had to concern itself with delimiting the boundary river between the two, which will be discussed in the passages below.

Delimitation of the Boundary River

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The al-Senussi Admissibility Decision in Two Quotes

by Kevin Jon Heller

Libya’s Foreign Minister, 21 May 2014:

There is a complete absence of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms.

ICC Appeals Chamber, 24 July 2014:

The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi.

ECHR Rules Against Poland in CIA Black Sites Case

by Jens David Ohlin

In two decisions (here and here) handed down this morning, the European Court of Human Rights has found that Poland violated its obligations under the European Convention of Human Rights for its complicity in the United States’ running of a CIA black site and high-value detainees program on Polish territory.

One of the cases involved al-Nashiri, who was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit. He was accused of orchestrating the attack against the USS Cole in 2000. In federal court his lawyers raised the very interesting issue of whether there existed an armed conflict with al-Qaeda at that time (i.e. before 9/11), and whether a military commission could properly assert jurisdiction over a crime that was allegedly committed before (in their view) the commencement of the armed conflict.

Nashiri was captured in Dubai in 2002, transferred to a CIA prison in Afghanistan (called the “Salt Pit”), then to a CIA facility in Bangkok (called “Cat’s Eye”) where detainee Abu Zubaydah (the subject of the other case) also was held. Both were then transferred to the CIA black site in Poland. After his time in Poland, he was transferred briefly to Morocco on his way to Guantanamo Bay, Cuba.

The decision goes into extensive detail of the CIA interrogation program, including a review of internal CIA documents explaining the interrogation methods that officers were authorized to use against detainees, as well as the unauthorized techniques that were sometimes used. The court concluded that (para. 417):

Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

The ECHR then concludes that Poland was aware of (and complicit) in the CIA activities:

442.  Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a)  that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b)  that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221).

443.  Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined …. in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

The Court holds that Poland violated Article 3 of the Convention for its failure to adequately investigate the mistreatment, and for failing to ensure that “individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals .”  Again, here is the Court’s holding (para. 517):

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held aboveon the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

The Court also found a violation of the article 5 prohibition against arbitrary detention (para. 532), the article 8 prohibition against interference with family life for holding him incommunicado (para. 540), the article 13 requirement of an effective domestic remedy (para. 551), and the article 6 prohibition against an unfair trial (para. 569).

The last holding on article 6 required the Court to conclude that the petitioner’s trial before a U.S. military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the U.S. Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis. There is no discussion of post-Hamdan military commission reforms.

Finally, the Court concludes that Poland violated its Protocol 6 (abolition of the death penalty) obligations because of the risk that the petitioner would be subject to capital punishment before a U.S. military commission (para. 579).