In association with the International Commission of Jurists

Courts & Tribunals

21 Aug

[Sven Pfeiffer is an Associate Expert at the United Nations Office on Drugs and Crime. The views expressed in this post are those of the author, writing in his personal capacity, and do not necessarily reflect the views of the United Nations.] National authorities are increasingly involved in the fight against impunity for perpetrators of genocide, war crimes and crimes against...

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20 Aug

The Faroe Islands has announced it has filed a referred the European Union to arbitration under the UN Convention for the Law of the Sea.  Apparently, it is a dispute over herring. “The Faroe Islands have today referred the use of threats of coercive economic measures by the European Union, in relation to the Atlanto-Scandian herring, to an arbitral tribunal under...

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20 Aug

[Laura Salvadego is a Postdoctoral Fellow at the Department of Law, University of Ferrara. This work has been developed during a research stay at the New York University School of Law - Center for Research in Crime and Justice, funded by Unicredit bank and by 5 per thousand contributions given to the University of Ferrara in 2010] The need to ensure...

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12 Aug

[Žygimantas Juška is a member of the defense team of Radovan Karadžić] One of the most high-profile cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY)—Prosecutor v. Radovan Karadžić—provides an opportunity to propose changes for the standby counsel model. Nevertheless, the ICTY has struggled to balance the effectiveness of standby counsel and its huge financial burden on the Tribunal. The ICTY previously...

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09 Aug

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law] Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali...

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05 Aug

[Dr. Gilad Noam teaches international criminal law at the Hebrew University and is also a practicing attorney at Israel's Ministry of Justice] What is the underlying nature of a dispute between a State and the Prosecutor of the International Criminal Court (ICC) on issues of complementarity?  Are the proceedings in which a State challenges the admissibility of a situation or a...

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02 Aug

[David Benger is a student of Political Science at Brandeis University and International law at the Grotius Center for International Legal Studies at the University of Leiden. David can be reached at dabenger@gmail.com] One of the central debates surrounding the International Criminal Court has been the battle between the rights of the accused and the interests of justice. This discussion has been...

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25 Jul

Last week, the ECJ handed down its judgment on the Yassin Abdullah Kadi appeal, marking the end of a decade long legal battle involving the Security Council’s consolidated anti-terrorism lists, and their implementation in the EU. The decision is available here.   As I noted in a post last fall, Kadi was delisted by the UN Ombudsperson in October of 2012, and so this judgment does not affect his status. Instead, this appeal against the ECJ’s decision in Kadi II raises the issues of effective judicial protection and standard of judicial review.  In an earlier decision, the ECJ had already established that “Courts of the European Union … ensure review, in principle the full review, of the lawfulness of all Union acts … including review of such measures as are designed to give effect to resolutions adopted by the Security Council.” (Para. 97)  These rights include respect for the rights of the defense and the right to effective judicial protection. What is notable about this latest decision is that:
  • The Court finds that judicial review is indispensable to ensure a fair balance between the maintenance of (i) international peace and (ii) international security (para.131), suggesting that Courts will play a role in the collective security going forward, particularly where fundamental rights are at stake.
  • Despite the improvements in the listing / delisting process represented by the creation of the UN Office of the Ombudsperson, the Court decides that UN processes do not “provide to the person whose name is listed on the Sanctions Committee Consolidated List … [with] the guarantee of effective judicial protection.” (133)
  • This decision may set a new standard for the review of Security Council acts in other fields.
Another notable aspect of the judgment is its emphasis on a high level of procedural and substantive review.  The ECJ stated that:
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15 Jul

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.] The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings -- even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A's courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B. The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims. Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.
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