1. GATT: Fundamental principles
The predecessor of WTO, GATT, aims at the reduction of tariffs and the elimination of discriminatory treatment in international commerce (Preamble GATT 1994). Note that parties to the WTO have given their consent to be bound by the treaty; therefore, it is only logical that GATT imposes obligations on these state parties.
Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN, Article I GATT), the National Treatment clause (NT, Article III GATT), the General Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and Countervailing Duties (Art. VI GATT).
1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-discrimination principle.
Art. I (1) GATT provides that any advantage granted by any contracting party to any product originating or destined for any other country, shall be accorded immediately and unconditionally to the like product originating or destined for the territories of all other contracting parties.
Art. III (2) GATT provides that the products of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied to like domestic products; moreover, the products imported into the territory of another contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin (only differential charges may be applied, based on the means of transport and not nationality of the product).
1.2. Market liberalization
Aiming at the liberalization of the global trade, tariffs need to be reduced and consolidated, Article II GATT (Schedules of Concessions). For the conditions of liberalization to be satisfied, Article III GATT is as necessary as it is for realizing the non-discrimination principle. Without the provisions of Art. III GATT, Article II GATT would be rendered of its practical value.
An example to explain this. State Q. confines itself to the reduction and consolidation of the tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by the Dispute Body) to 5%.
Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately render the Schedules of Consessions from their effect; it could simply do so by favouring its internal market. From this example, it should be clear that provisions on market liberalization cannot do without the principle of non-discrimination (not without reason, MFN and NT are fundamental principles).
1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could invoke exeptions to justify the application of restrictive measures. General exceptions are found in Article XX GATT; important exceptions are, for example, the protection of human, animal and plant life or health (b) and the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.
Is the restrictive measure jusitified, the measure needs to meet the requirements under the "Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
Thus, assuming that a measure is related to one of the purposes of the general or specific exceptions, any discriminating application of the measure is a violation of the exceptions provided.
2. WTO Dispute Settlement Understanding (WTO-DSU)
Before bringing a dispute before the Panel, Members should utilize diplomatic means, the first of these being consultations (Article 4 DSU). If the consultations fail to settle a dispute within sixty days after the date of receipt of the request for consultations, the establishment of an ad hoc panel may be requested (Art. 4(7) DSU). The Procedures before the Panel are set out in Article 12 DSU.
The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only parties to the dispute may appeal a panel report, but third parties which have notified the DSB of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be limited to issues of law, covered in the panel report and legal interpretations developed by the panel (Art. 17(6) DSU).
Both the panel procedure and appellate review work on a system of negative consensus: the DSB panel report will be adopted, unless all member decide by consensus not to adopt the report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-automatic", as a decision by one or more, but not all Members, cannot affect the adoption of the report.
vrijdag 10 maart 2017
maandag 6 maart 2017
On international human rights law and enforcement mechanisms
1.1. Internationalization of human rights law
With regards to the internationalization of human rights, the UN Charter refers in several Articles to the human rights movement, of which 1(3) contains an important principal objective: "The purposes of the UN are [..] to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction.." In this respect, other articles worth noting are 13(1)(b), 55 (Eco-Soc operation), 62(2) and 68 of the UN Charter.
2. Doctrine: categorization of human rights
2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the individual is primary the rights holder. The State could ultimately be held accountable or even responsible if acts that violate human rights and which are performed by non-state actors, are attributable to the State.
2.2. Generations of human rights
Proposed by K. Vasak is a division of human rights in three generations, the first being the classic freedoms (negative State obligations, not to interfere), the second ecosoc-cultural rights (positive obligations, to pro-actively fulfil human rights). The third generation, solidarity rights (peace and environmental rights), raises questions on the position of bearers of duties and holders of human rights. Also, human rights law still mainly emphasizes the universal acceptance of indiviual rights.
2.3. Beneficiary
As the individual is traditionally the rights holder, it is important to note that human rights can be enjoyed by the collective and by people in an association. An example is the protection of persons belonging to a minority group, as set out in Article 27 of the ICCPR (International Convenant on Civil and Political Rights).
2.4. Negative v. positive obligations
The last category to discuss is one of importance. Whereas the classic negative obligations (to a great extent stemming from the Age of Enlightenment) impose on States the obligations to refrain from interference and to respect human rights, a fundamental human right like the right to life also requires that a state proactively promotes the safety of its citizens. The obligation to "protect and fulfil" imposes positive obligations on states.
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009, application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain from the international and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to protect the right to life, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life (para 130).
Upon the alleged failure to protect life, the Court decides on questions concerning the scope of the case (i), whether the local authorities could have foreseen a lethal attack by the offender (ii), whether the authorities have displayed due diligence to protect the right to life (iii) and the effectiveness of the criminal investigation by the authorities.
The Court reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome, is sufficient to engage the responsibility of the State (para 136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of criminal prosecution when a victim withdraws his or her complaints, there seems to be an acknowlegdement of the duty on the part of the authorities to strike a balance between the Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the authorities hold the view that interference would amount to a breach of the victims' rights under Article 8 and that private matters are incompatible with positive obligations) cannot supersede victims' human rights to life and to physical and mental integrity (para 147).
3. A clash of human rights: which right should prevail?
Well-known to States Parties to the ECHR and ICCPR is an ongoing discussion on the clash of human rights. As people likely tend to forget or wish to forget to alter the outcome of the debate on social and cultural human rights, the provisions on the freedom of expression contain a clause in the second or third paragraph.
For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise of the freedom of expression, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions and penalties as are prescribed by law and are necessary in a democratic society". From this follows that the rights holder is not free of responsibility. These provisions aim to ensure the human rights of other individuals.
Thus, the requirements for governmental interference are: the interference has to be in accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of others in a democratic society) and interference should be necessary to ensure a democratic society. Upon deciding whether certain measures, e.g. restrictions and punishment should be deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the proportionality of the measures in question.
On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom of expression is applicable, not only to "information" or "ideas" that are favourably received or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society".
3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98
3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context [..] may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane. This being so, as a matter of principle it may be considered necessary to punish improper attacks (para 24).
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in a democratic society", the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. In case, the Contracting States have a wider margin of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against offensive attacks. In that respect, it finds that the measure may reasonably be held to have met a "pressing social need". The authorities cannot be said to have overstepped their margin of appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that the insignificant fine imposed was proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this judgment, the dissenting judges state that the "offense of the majority does not appear to be a sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the dictum from Handyside would be deprived of all effect. In our view, this consistent case-law seems to place too much emphasis on conformism or uniformity of thought".
4. Human rights protection: Charter-based and treaty-based enforcement mechanisms
Before discussing the Charter-based and treaty-based enforcement mechanisms, a distinction between UN monitoring (enforcement) mechanisms and regional monitory/ supervisory mechanisms (as is the ECtHR): the UN monitoring mechanism is not such a strong enforcement mechanism.
4.1.1. Charter-based enforcement mechanisms
According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.
The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are Charter-based, as they were established by resolutions of principal organs of the UN, whose authorities flow from the UN Charter. In fact, the General Assembly has established the HRC and the task of the HRC is to report its universal periodic review to the UNGA. The current Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of the UN Charter provide that ECOSOC is able to make recommandations and to set up commissions.
4.1.2. Treaty-based enforcement mechanisms
Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set of issues, codified in the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.
Currently, there are nine UN human rights conventions with monitoring bodies to supervise the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents
Article 28 of the ICCPR stipulates the establishment of the HRC, which shall be composed of nationals of the States Parties to the Convenant.
The types of issued documents are, as follows:
1. The ICCPR Convenant provides in Article 40 that reports shall be submitted ("States parties reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications relating to States parties to the First Optional Protocol. These "views", based on Art. 1 OP, are not legally binding.
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR stipulates that reports shall be submitted to the Secretary General of the UN, who shall transmit copies to the ECOSOC for considerations in accordance with the provisions of the Convenant. By issuing general comments, the
Committee provides the interpretation of the content of human rights provisions. The State reporting mechanism, according to Article 16 ICESCR, implies that the Committee can address these reports by means of concluding observations.
The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP (non-binding views) and an inter-state complaints procedure, Art. 10 OP.
4.2. Bill of Rights
The predecessor of the Human Rights Council sent its draft on the Bill of Rights to the Charter-based ECOSOC. The UN General Assembly adopted the Universal Declaration of Human Rights through Resolution 217 A III, referred to as an instrument of "soft law", as this document is legally not-binding. Together with the UDHR, the later on adopted treaties ICCPR and ICESCR form the International Bill of Rights. The "soft law" character of the resolutions notwithstanding, the human rights conventions ultimately have a legally binding effect, as the UDHR general standards are translated into treaties for universal and regional protection.
5. Regional human rights protection: enforcement body of the ECHR
Articles 33 and 34 of the ECHR provide the jurisdiction of the ECtHR. The admissibility conditions are to be found in Article 35 ECHR: these are the exhaustion of local remedies and the condition that a complaint must not be ill-founded.
As was said before, the UN monitoring mechanisms are not quite as strong as the regional enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based nature of the ECHR implies that these judgments are, as an integral part, binding for Member States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from the parties' consent to be bound under treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjöld Library (available via Research.un.org);
Lowe, International law, Oxford University Press (2007).
With regards to the internationalization of human rights, the UN Charter refers in several Articles to the human rights movement, of which 1(3) contains an important principal objective: "The purposes of the UN are [..] to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction.." In this respect, other articles worth noting are 13(1)(b), 55 (Eco-Soc operation), 62(2) and 68 of the UN Charter.
2. Doctrine: categorization of human rights
2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the individual is primary the rights holder. The State could ultimately be held accountable or even responsible if acts that violate human rights and which are performed by non-state actors, are attributable to the State.
2.2. Generations of human rights
Proposed by K. Vasak is a division of human rights in three generations, the first being the classic freedoms (negative State obligations, not to interfere), the second ecosoc-cultural rights (positive obligations, to pro-actively fulfil human rights). The third generation, solidarity rights (peace and environmental rights), raises questions on the position of bearers of duties and holders of human rights. Also, human rights law still mainly emphasizes the universal acceptance of indiviual rights.
2.3. Beneficiary
As the individual is traditionally the rights holder, it is important to note that human rights can be enjoyed by the collective and by people in an association. An example is the protection of persons belonging to a minority group, as set out in Article 27 of the ICCPR (International Convenant on Civil and Political Rights).
2.4. Negative v. positive obligations
The last category to discuss is one of importance. Whereas the classic negative obligations (to a great extent stemming from the Age of Enlightenment) impose on States the obligations to refrain from interference and to respect human rights, a fundamental human right like the right to life also requires that a state proactively promotes the safety of its citizens. The obligation to "protect and fulfil" imposes positive obligations on states.
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009, application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain from the international and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to protect the right to life, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life (para 130).
Upon the alleged failure to protect life, the Court decides on questions concerning the scope of the case (i), whether the local authorities could have foreseen a lethal attack by the offender (ii), whether the authorities have displayed due diligence to protect the right to life (iii) and the effectiveness of the criminal investigation by the authorities.
The Court reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome, is sufficient to engage the responsibility of the State (para 136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of criminal prosecution when a victim withdraws his or her complaints, there seems to be an acknowlegdement of the duty on the part of the authorities to strike a balance between the Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the authorities hold the view that interference would amount to a breach of the victims' rights under Article 8 and that private matters are incompatible with positive obligations) cannot supersede victims' human rights to life and to physical and mental integrity (para 147).
3. A clash of human rights: which right should prevail?
Well-known to States Parties to the ECHR and ICCPR is an ongoing discussion on the clash of human rights. As people likely tend to forget or wish to forget to alter the outcome of the debate on social and cultural human rights, the provisions on the freedom of expression contain a clause in the second or third paragraph.
For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise of the freedom of expression, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions and penalties as are prescribed by law and are necessary in a democratic society". From this follows that the rights holder is not free of responsibility. These provisions aim to ensure the human rights of other individuals.
Thus, the requirements for governmental interference are: the interference has to be in accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of others in a democratic society) and interference should be necessary to ensure a democratic society. Upon deciding whether certain measures, e.g. restrictions and punishment should be deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the proportionality of the measures in question.
On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom of expression is applicable, not only to "information" or "ideas" that are favourably received or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society".
3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98
3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context [..] may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane. This being so, as a matter of principle it may be considered necessary to punish improper attacks (para 24).
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in a democratic society", the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. In case, the Contracting States have a wider margin of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against offensive attacks. In that respect, it finds that the measure may reasonably be held to have met a "pressing social need". The authorities cannot be said to have overstepped their margin of appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that the insignificant fine imposed was proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this judgment, the dissenting judges state that the "offense of the majority does not appear to be a sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the dictum from Handyside would be deprived of all effect. In our view, this consistent case-law seems to place too much emphasis on conformism or uniformity of thought".
4. Human rights protection: Charter-based and treaty-based enforcement mechanisms
Before discussing the Charter-based and treaty-based enforcement mechanisms, a distinction between UN monitoring (enforcement) mechanisms and regional monitory/ supervisory mechanisms (as is the ECtHR): the UN monitoring mechanism is not such a strong enforcement mechanism.
4.1.1. Charter-based enforcement mechanisms
According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.
The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are Charter-based, as they were established by resolutions of principal organs of the UN, whose authorities flow from the UN Charter. In fact, the General Assembly has established the HRC and the task of the HRC is to report its universal periodic review to the UNGA. The current Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of the UN Charter provide that ECOSOC is able to make recommandations and to set up commissions.
4.1.2. Treaty-based enforcement mechanisms
Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set of issues, codified in the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.
Currently, there are nine UN human rights conventions with monitoring bodies to supervise the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents
Article 28 of the ICCPR stipulates the establishment of the HRC, which shall be composed of nationals of the States Parties to the Convenant.
The types of issued documents are, as follows:
1. The ICCPR Convenant provides in Article 40 that reports shall be submitted ("States parties reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications relating to States parties to the First Optional Protocol. These "views", based on Art. 1 OP, are not legally binding.
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR stipulates that reports shall be submitted to the Secretary General of the UN, who shall transmit copies to the ECOSOC for considerations in accordance with the provisions of the Convenant. By issuing general comments, the
Committee provides the interpretation of the content of human rights provisions. The State reporting mechanism, according to Article 16 ICESCR, implies that the Committee can address these reports by means of concluding observations.
The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP (non-binding views) and an inter-state complaints procedure, Art. 10 OP.
4.2. Bill of Rights
The predecessor of the Human Rights Council sent its draft on the Bill of Rights to the Charter-based ECOSOC. The UN General Assembly adopted the Universal Declaration of Human Rights through Resolution 217 A III, referred to as an instrument of "soft law", as this document is legally not-binding. Together with the UDHR, the later on adopted treaties ICCPR and ICESCR form the International Bill of Rights. The "soft law" character of the resolutions notwithstanding, the human rights conventions ultimately have a legally binding effect, as the UDHR general standards are translated into treaties for universal and regional protection.
5. Regional human rights protection: enforcement body of the ECHR
Articles 33 and 34 of the ECHR provide the jurisdiction of the ECtHR. The admissibility conditions are to be found in Article 35 ECHR: these are the exhaustion of local remedies and the condition that a complaint must not be ill-founded.
As was said before, the UN monitoring mechanisms are not quite as strong as the regional enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based nature of the ECHR implies that these judgments are, as an integral part, binding for Member States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from the parties' consent to be bound under treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjöld Library (available via Research.un.org);
Lowe, International law, Oxford University Press (2007).
zondag 5 maart 2017
International humanitarian law
1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand, aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and Geneva Conventions are to be observed by all States, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law" (para 79). Furhermore, the Court notes that these principles of humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the Hague and Gevena Conventions apply to armed conflict, because these conventions embody the rules of customary international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these coventions being considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There always uncertainty on the precise scope of humanitarian international law. Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we find that an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Humanitarian law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC. Humanitarian international law applies at the very moment of any act of force between States- with respect to international humanitarian law, one could say it is "war at first shot", as Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other side, require "protracted or large-scale armed violence" for international humanitarian law to be applicable.
2.1. Lotus doctrine and si omnes clause
The rationale behind this distinction is State sovereignty. International law would foremost be applied in conflicts between States, or High Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating that provions could only apply if States, party to a conflict, were both parties to the convention that would be applied. According the Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings clause. This clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva Convention expressly rejects the si omnes clause. It does so by stating "Although one of the Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international humanitarian law: treaties concerning humanitarian law should not be terminated along the line of material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians (defined by Art. 50 AP I). A civilian is any person who does not belong to one of the categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict, have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the equivalent of the protection accorded by Convention III and AP I. In order to garantuee as much protection as possible to all categories of combatants and non-combatants, main rule prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized hostilities and civilians participating in levée en masse. The latter, spontaneously participating in non-organized hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the principles of distinction and the principle not to cause unnecessary suffering in paras 95-97. The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary suffering as a result of warfare. From the application of Common Article 3 follows that the humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions I, II, III and IV respectively. These provisions allow for state parties to denounce the conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than unavoidable to achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the military advantage anticipated" as indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation to refrain from causing greater harm than unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to take precautionary measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall be taken to spare civilians and civilian objects. While AP I does not apply to NIACs, customary international law imposes on the parties to a NIAC the obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić case could be considered an international armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to attribute the acts of military or paramilitary groups to a State, it must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber makes clear that a higher threshold has to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements have to be met in order to pass the threshold for the application of rules regarding a NIAC: "The test applied to the existence of an armed conflict for the purpose of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law. The threshold in Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:
"..organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence."
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel) groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and eventually legitimizing the existence and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although the (codification of) customary international law aims to guarantee human rights and stems from universal human ideals of what global society should be like, it goes to show that many (non-) state actors don't live up to guarantee those rights. When non-State actors and States lack natural authority, one could image well how these actors resort to the threat with or use of violence and how they would rely on an arms race to scare off future, existent or imaginary enemies; living up to their human rights commitments would be the last to be concerned about. In practice, non-compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty give their consent to be bound, there will always be ambiguity when conflicts arise. That is why many of the rules of international law apply in theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand, aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and Geneva Conventions are to be observed by all States, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law" (para 79). Furhermore, the Court notes that these principles of humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the Hague and Gevena Conventions apply to armed conflict, because these conventions embody the rules of customary international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these coventions being considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There always uncertainty on the precise scope of humanitarian international law. Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we find that an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Humanitarian law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC. Humanitarian international law applies at the very moment of any act of force between States- with respect to international humanitarian law, one could say it is "war at first shot", as Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other side, require "protracted or large-scale armed violence" for international humanitarian law to be applicable.
2.1. Lotus doctrine and si omnes clause
The rationale behind this distinction is State sovereignty. International law would foremost be applied in conflicts between States, or High Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating that provions could only apply if States, party to a conflict, were both parties to the convention that would be applied. According the Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings clause. This clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva Convention expressly rejects the si omnes clause. It does so by stating "Although one of the Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international humanitarian law: treaties concerning humanitarian law should not be terminated along the line of material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians (defined by Art. 50 AP I). A civilian is any person who does not belong to one of the categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict, have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the equivalent of the protection accorded by Convention III and AP I. In order to garantuee as much protection as possible to all categories of combatants and non-combatants, main rule prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized hostilities and civilians participating in levée en masse. The latter, spontaneously participating in non-organized hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the principles of distinction and the principle not to cause unnecessary suffering in paras 95-97. The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary suffering as a result of warfare. From the application of Common Article 3 follows that the humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions I, II, III and IV respectively. These provisions allow for state parties to denounce the conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than unavoidable to achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the military advantage anticipated" as indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation to refrain from causing greater harm than unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to take precautionary measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall be taken to spare civilians and civilian objects. While AP I does not apply to NIACs, customary international law imposes on the parties to a NIAC the obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić case could be considered an international armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to attribute the acts of military or paramilitary groups to a State, it must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber makes clear that a higher threshold has to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements have to be met in order to pass the threshold for the application of rules regarding a NIAC: "The test applied to the existence of an armed conflict for the purpose of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law. The threshold in Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:
"..organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence."
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel) groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and eventually legitimizing the existence and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although the (codification of) customary international law aims to guarantee human rights and stems from universal human ideals of what global society should be like, it goes to show that many (non-) state actors don't live up to guarantee those rights. When non-State actors and States lack natural authority, one could image well how these actors resort to the threat with or use of violence and how they would rely on an arms race to scare off future, existent or imaginary enemies; living up to their human rights commitments would be the last to be concerned about. In practice, non-compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty give their consent to be bound, there will always be ambiguity when conflicts arise. That is why many of the rules of international law apply in theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
zaterdag 4 maart 2017
On the jurisdiction of ICC, Tribunals and domestic courts
1. International Criminal Courts
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made clear that the category of "crimes against humanity" (the category of "violation of peace" alike) would interfere with a state's sovereignty with respect to domestic jurisdiction and governmental activities, such as the waging of war. Also, the category of "crimes against humanity" would be contary to the universal principle "nullum crimen sine lege" (Art. 22 Rome), as no such category of crimes was recognized before the IMT was set up.
The first international case to give rise to a wide recognition of individual responsibility for war crimes, whether they were committed on an international scale or within the boundaries of a state, was the Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals. The Court has jurisdiction over natural persons pursuant to the Statute, according to Article 25 of the Rome Statute. The International Criminal Court was established by the Rome Statute. The jurisdiction of the ICC is based on the principle of complementarity, as Article 1 of the Rome Statute reads. The primacy of domestic courts with respect to exercising jurisdiction over crimes, implies that the ICC only has jurisdiction when a State is unwilling or unable genuinely to carry out the investigation or prosecution, as Art. 17 ( Issues of admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the material jurisdiction, consists of four core crimes, as Article 5 of Rome puts it: "The jurisdiction shall be limited to the most serious crimes of concern to the community as a whole. The Court has jurisdiction with respect to: the crime of genocide, crimes against humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the fulfilment of actus reus and mens rea. With respect to actus reus, the crimes of genocide, war crimes and crimes against humanity are covered by articles 6-8 of the Rome Statute, the category of war crimes being the most elaborate. For an individual to be prosectuted and ultimately convicted for the crime of genocide, the decisive criterion is to be found in Article 2 of the Genocide Convention: the requirement of an intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech) case has set out that the term "in part", as meant in Article 3 of the Genocide Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić). Although the ICTY Appeals Chamber in the Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct when determining that the part of the group that has been killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this substantial part of a group, the Trial Chamber did not depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy" requirement for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent to kill"? The mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the ICC: a person has intent where (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the Rome Statute. Article 33 provides possible grounds for the exclusion of criminal responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of responsibility, unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in part 3 of the Rome Statute, define the temporal jurisdiction of the ICC: from "nullum crime sin lege", "nulla poena sine lege" and the non-retroactivity ratione personae, follows that the Court has no jurisdiction with respect to criminal activities committed prior to the entry into force of the Rome Statute, see Art. 11 along with 24 of the Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory of which the conduct has taken place, is a party to the Rome Statute or has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art. 12 Rome Statute). From this follows that the ICC can exercise jurisdiction if the state of which an accused individual is a national, is a party to the Rome Statute or has accepted its jurisdiction as set out.
Note that the limitation of territorial and personal jurisdiction does not apply to the situations as provided for in Articles 13(b) and 15 ter of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its complementary role, Article 12(2) of the Rome Statute provides that State consent is a precondition to the exercise of jurisdiction by the ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article 13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no primacy, as states have first responsibility, unless they are unwilling or genuinely unable to carry out investigation or prosecution, which is an issue of admissibility. Once a case is genuinely being investigated or prosecuted by a domestic court, the case will no longer be admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the International Criminal Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in common: the permanent status of the ICC demands from the Court that individuals only be prosecuted for or convicted of crimes that meet the condition of nullum crime sini lege in accordance with Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the International Criminal Tribunals are able to respond to recent activities, regardless of a strict ex ante codification of crimes that the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC, if that person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted commission of such a crime. Such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or be made in the knowledge of the intention of the group to commit the crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces under his effective command and control, where that military commander either knew or should have known that the forces were committing such crimes and that military commander failed to take necessary and reasonable measures within his power to prevent or repress their commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a Government or a superior, shall not relieve that person of responsibility, unless that person was under a legal obligation to obey, the person did not know that the order was unlawful and the order was not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However, the crime of genocide and crimes against humanity are manifestly unlawful; thus, a person cannot be relieved from responsibility with respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to individual responsibility shall affect the responsibility of States under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn between the subjective territoriality (initiation of a crime) and the objective territoriality/ effects doctrine (fulfilment of a criminal offence). If two states are concerned, both the state in which the crime was initiated and the state in which the crime was executed, are entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its jurisdiction over its own nationals, regardless of the territory on which a crime was committed.
The passive nationality principle aims to protect a state's own nationals against offences, even if they are committed by another national in another state. Exercising passive nationality would interfere with the right of another state to exercise its territorial jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction over non-nationals in the territory of another state. The requirement is that an offender commits a crime that affects the vital interests of a state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection against the commission of such crimes is required, regardless of territoriality and nationality issues. From this follows that states need to exercise universal jurisidiction with respect to the prosecution of offenders.
Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention stipulates that an offender shall be tried by a competent tribunal, which may exercise its jurisdiction over the territory of the Party State in which the crime of genocide was committed. The preamble to the Torture Convention reads that "the desire is to make more effective the struggle against torture and other cruel treatment throughout the world". Article 7 of the Torture Convention stipulates that the State Party submit the case to its competent authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have been met (territory issues).
5. The jurisdiction of the ICTY and ICTR
While the ICC and Neuremberg Tribunal were established by a treaty, the ICTY and ICTR were established by binding Resolutions of the UN Security Council, acting under the provisions of Chapter VII of the UN Charter. Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la compétence de compétence", the Tribunal has the incidental or inherent competence jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the exercise of the judicial function of the tribunals and as such, this practice was accepted by general international law.
With respect to the questioning of the power of the UNSC to set up ICTY by means of a resolution, the Appeals Chamber determines that the legal basis is to be found in the authority of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although the Tribunals have concurrent jurisdiction with domestic courts, the Tribunals have primacy with respect to the prosecution of international crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY Statute.
The second ground of appeal in the 1995 Tadić Decision on the Defence Motion by the ICTY Appeals Chamber attacks the primacy of the International Tribunal over domestic courts (para 49).
However, the plea of State sovereignty must be dismissed. The Appeals Chamber provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity] brought about the establishment of an international judicial body by an organ of an organization representing the community of nations: the Security Council. This organ is empowered and mandated, by definition, to deal with trans-boundary matters which may affect "international peace and security". It would be a travesty of law, should the concept of State sovereignty be allowed to be raised succesfully against human rights. When an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, there would be a danger of international crimes being characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One final remark on the immunity of HRSO from foreign jurisdiction. It should be clear that an incumbent HRSO or a former HRSO with respect to crimes committed in acting out official capacities, cannot enjoy immunity before the ICC and the International Tribunals. Article 27 of the Rome Statute stresses that HRSO do not enjoy immunity before the ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the "official position of any accused person, whether as Head of State of Government, shall not relieve such person of criminal responsibility nor mitigate punishment".
1.1. Why is the prosecution of individuals for crimes against humanity, deemed controversial?
The prosecution of war criminals by the Nuremberg Tribunal (IMT) made clear that the category of "crimes against humanity" (the category of "violation of peace" alike) would interfere with a state's sovereignty with respect to domestic jurisdiction and governmental activities, such as the waging of war. Also, the category of "crimes against humanity" would be contary to the universal principle "nullum crimen sine lege" (Art. 22 Rome), as no such category of crimes was recognized before the IMT was set up.
The first international case to give rise to a wide recognition of individual responsibility for war crimes, whether they were committed on an international scale or within the boundaries of a state, was the Tadic case of the ICTY.
1.2. How is the jurisdiction of the ICC defined?
The jurisdiction ratione personae of the ICC is limited to individuals. The Court has jurisdiction over natural persons pursuant to the Statute, according to Article 25 of the Rome Statute. The International Criminal Court was established by the Rome Statute. The jurisdiction of the ICC is based on the principle of complementarity, as Article 1 of the Rome Statute reads. The primacy of domestic courts with respect to exercising jurisdiction over crimes, implies that the ICC only has jurisdiction when a State is unwilling or unable genuinely to carry out the investigation or prosecution, as Art. 17 ( Issues of admissibility) of the Rome Statute makes clear.
1.2.1. material jurisdiction
The substantive component of international criminal law, making up the material jurisdiction, consists of four core crimes, as Article 5 of Rome puts it: "The jurisdiction shall be limited to the most serious crimes of concern to the community as a whole. The Court has jurisdiction with respect to: the crime of genocide, crimes against humanity, war crimes and the crime of aggression".
1.2.2. core crimes
Conviction of the individual for committing core crimes, requires the fulfilment of actus reus and mens rea. With respect to actus reus, the crimes of genocide, war crimes and crimes against humanity are covered by articles 6-8 of the Rome Statute, the category of war crimes being the most elaborate. For an individual to be prosectuted and ultimately convicted for the crime of genocide, the decisive criterion is to be found in Article 2 of the Genocide Convention: the requirement of an intent to destroy has to be met.
The ICTY in the Krstić (pronunciation: kerr-steech) case has set out that the term "in part", as meant in Article 3 of the Genocide Convention, contains a substantiality requirement. The Trial Chamber determined that Krstic had the intent to kill, thus, the requirements of Art. 4(2)(a) of the Rome Statute have been met (para 598 case IT-98-33-T, Prosecutor v. Krstić). Although the ICTY Appeals Chamber in the Judgment of 19 April 2004 acknowledges that the Trial Chamber should have exressed its reasoning more carefully (para 22), the remark is made that the Trials Chamber was correct when determining that the part of the group that has been killed, was "substantial" as with respect to the crime of genocide.
In concluding that some members of the VRS Main Staff had intented to destroy this substantial part of a group, the Trial Chamber did not depart from the legal requirements for genocide (para 38).
For an individual to be prosecuted for crimes against humanity, a "specific intent" exists when there is "knowledge of the attack". This is a less strict criterion than is the "intent to destroy" requirement for prosecuting one for the crime of genocide.
How does one determine, however, when the individual has had the "intent to kill"? The mental element as such, mens rea, is described in Article 30(2) of the Rome Statute of the ICC: a person has intent where (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of the events.
The grounds for excluding criminal responsibility are to be found in Articles 31 and 32 of the Rome Statute. Article 33 provides possible grounds for the exclusion of criminal responsibility; paragraph 1 gives a negative formula: "..shall not relieve that person of responsibility, unless..." one of the three options in (a)(b)(c) applies.
1.2.3. temporal jurisdiction
The first of the general principles of criminal law, as laid down in part 3 of the Rome Statute, define the temporal jurisdiction of the ICC: from "nullum crime sin lege", "nulla poena sine lege" and the non-retroactivity ratione personae, follows that the Court has no jurisdiction with respect to criminal activities committed prior to the entry into force of the Rome Statute, see Art. 11 along with 24 of the Rome Statute.
1.2.4. territorial and personal jurisdiction
The Court can exercise its jurisdiction if a state within the territory of which the conduct has taken place, is a party to the Rome Statute or has accepted the ICC's jurisdiction in accordance with paragraph 3 (Art. 12 Rome Statute). From this follows that the ICC can exercise jurisdiction if the state of which an accused individual is a national, is a party to the Rome Statute or has accepted its jurisdiction as set out.
Note that the limitation of territorial and personal jurisdiction does not apply to the situations as provided for in Articles 13(b) and 15 ter of the Rome Statute.
1.2.5. no universal jurisdiction
No universal jurisdiction of the ICC is recognized; with respect to its complementary role, Article 12(2) of the Rome Statute provides that State consent is a precondition to the exercise of jurisdiction by the ICC.
1.3. What are the conditions for action by the ICC?
There are three ways to enable the ICC's jurisdiction, Article 13 of the Rome Statute:
1. A State Party may refer a situation to the Prosecutor, in accordance with Article 14 of the Rome Statute (Art. 13(a) Rome);
2. The Security Council of the UN, acting under Chapter VII of the UN Charter, may refer a situation to the Prosecutor (Art. 13(b) Rome);
3. The Prosecutor may initiate investigations proprio motu (Article 13(c) in conjunction with Article 15 Rome).
Note that referral by a State Party and investigation proprio motu by the Prosecutor, Article 13(a) and (c) Rome, are subject to the conditions in Article 12(2)(a)(b) of the Rome Statute.
2. How do the jurisdiction of the ICC and the Tribunals differ in relation to domestic courts?
As said before, the nature of the jurisdiction of the ICC is complementary; the Court has no primacy, as states have first responsibility, unless they are unwilling or genuinely unable to carry out investigation or prosecution, which is an issue of admissibility. Once a case is genuinely being investigated or prosecuted by a domestic court, the case will no longer be admissible before the ICC: look up relevant Articles 1 and 17-19 of Part 2 of the Rome Statute.
No such conditions are imposed on the Criminal Tribunals; the International Criminal Tribunal of the former Yugoslavia shall have primacy over national courts, in accordance with Art. 9(2) of the ICTY. The same holds good for the Rwanda Criminal Tribunal, as Article 8(2) of the ICTR (UNICTR) was a mere predecessor of the concurrent jurisdiction provisions in the ICTY.
The International Tribunals have another main advantage over the ICC in common: the permanent status of the ICC demands from the Court that individuals only be prosecuted for or convicted of crimes that meet the condition of nullum crime sini lege in accordance with Article 22 of the Rome Statute. No such provisions are to be found in the ICTY and ICTR: the International Criminal Tribunals are able to respond to recent activities, regardless of a strict ex ante codification of crimes that the individual could be convicted of.
3. How is the responsibility of the individual addressed?
3.1. Individually or jointly committed crimes and contribution to the commission of crimes
An individual should be held criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC, if that person:
1. Commits such a crime, whether as an individual, jointly with another or through another person
(art. 25(3)(a) Rome Statute);
2. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists
(art. 25(3)(c) Rome Statute);
3. In any other way contributes to the commission or attempted commission of such a crime. Such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or be made in the knowledge of the intention of the group to commit the crime
(art. 25(3)(d)(i)(ii) Rome Statute).
3.2. Responsibility of commanders
A person shall be held criminally responsible if that person:
1. Orders, solicits or induces the commission of such a crime (art. 25(3)(b) Rome Statute);
2. A commander shall be held responsible for crimes committed by forces under his effective command and control, where that military commander either knew or should have known that the forces were committing such crimes and that military commander failed to take necessary and reasonable measures within his power to prevent or repress their commission [..] (Art. 28 Rome Statute).
3.3. Persons pursuant to superior orders
The fact that a crime is committed by a person, pursuant to an order of a Government or a superior, shall not relieve that person of responsibility, unless that person was under a legal obligation to obey, the person did not know that the order was unlawful and the order was not manifestly unlawful (Article 33(1)(a)(b)(c) Rome Statute). However, the crime of genocide and crimes against humanity are manifestly unlawful; thus, a person cannot be relieved from responsibility with respect to such crimes (Art. 33(2) Rome Statute).
3.4. State responsibility
Article 25(4) provides that no provision in the Rome Statute relating to individual responsibility shall affect the responsibility of States under international law.
4. How can a state exercise domestic jurisdiction over international crimes?
The principles from which state jurisdiction is derived, are territoriality, protection, nationality and universality.
4.1. Territoriality principle
Regarding the territoriality principle, a distinction can be drawn between the subjective territoriality (initiation of a crime) and the objective territoriality/ effects doctrine (fulfilment of a criminal offence). If two states are concerned, both the state in which the crime was initiated and the state in which the crime was executed, are entitled to exercise their jurisdiction.
4.2. Nationality principle
The active nationality principle implies that a state may exercise its jurisdiction over its own nationals, regardless of the territory on which a crime was committed.
The passive nationality principle aims to protect a state's own nationals against offences, even if they are committed by another national in another state. Exercising passive nationality would interfere with the right of another state to exercise its territorial jurisdiction.
4.3. Protective principle
The protective principle implies that a state can exercise jurisdiction over non-nationals in the territory of another state. The requirement is that an offender commits a crime that affects the vital interests of a state.
4.4. Universality principle
Certain crimes are so grave in nature, that a universal protection against the commission of such crimes is required, regardless of territoriality and nationality issues. From this follows that states need to exercise universal jurisidiction with respect to the prosecution of offenders.
Note that treaty law imposes on states, party to a treaty, the obligation to exercise universal jurisdiction regarding the repression of universally recognized, grave crimes. The crimes of genocide and torture are crimes of such gravity. Article 6 of the Genocide Convention stipulates that an offender shall be tried by a competent tribunal, which may exercise its jurisdiction over the territory of the Party State in which the crime of genocide was committed. The preamble to the Torture Convention reads that "the desire is to make more effective the struggle against torture and other cruel treatment throughout the world". Article 7 of the Torture Convention stipulates that the State Party submit the case to its competent authorities for the purpose of prosecution, assumed that the requirements from Art. 4-6 have been met (territory issues).
5. The jurisdiction of the ICTY and ICTR
While the ICC and Neuremberg Tribunal were established by a treaty, the ICTY and ICTR were established by binding Resolutions of the UN Security Council, acting under the provisions of Chapter VII of the UN Charter. Recall that Articles 7 and 8 of the ICTY and ICTR Statutes provide the Tribunals with both territorial and temporal jurisdiction.
5.1. The Appeals Chamber in the Tadić case of 2 October 1995: Kompetenz-Kompetenz
Concerning its jurisdiction, the Appeals Chamber in the Tadić Interlocutory Appeal of 2 October 1995 remarks that, according to the principle of "Kompetenz-Kompetenz" or "la compétence de compétence", the Tribunal has the incidental or inherent competence jurisdiction to determine its own jurisdiction (para 18). It is a necessary component of in the exercise of the judicial function of the tribunals and as such, this practice was accepted by general international law.
With respect to the questioning of the power of the UNSC to set up ICTY by means of a resolution, the Appeals Chamber determines that the legal basis is to be found in the authority of the Security Council, as was decided by the (paras 32-38 and 40).
5.2. Questioning the primacy of International Tribunals
Although the Tribunals have concurrent jurisdiction with domestic courts, the Tribunals have primacy with respect to the prosecution of international crimes, as laid down in Articles 8 of the ICTR Statute and 9 of the ICTY Statute.
The second ground of appeal in the 1995 Tadić Decision on the Defence Motion by the ICTY Appeals Chamber attacks the primacy of the International Tribunal over domestic courts (para 49).
However, the plea of State sovereignty must be dismissed. The Appeals Chamber provides us with several important considerations.
The public revulsion against similar offences [crimes against humanity] brought about the establishment of an international judicial body by an organ of an organization representing the community of nations: the Security Council. This organ is empowered and mandated, by definition, to deal with trans-boundary matters which may affect "international peace and security". It would be a travesty of law, should the concept of State sovereignty be allowed to be raised succesfully against human rights. When an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, there would be a danger of international crimes being characterised as "ordinary crimes" (para 58).
6. Do HRSO enjoy immunity before the ICC and Tribunals?
One final remark on the immunity of HRSO from foreign jurisdiction. It should be clear that an incumbent HRSO or a former HRSO with respect to crimes committed in acting out official capacities, cannot enjoy immunity before the ICC and the International Tribunals. Article 27 of the Rome Statute stresses that HRSO do not enjoy immunity before the ICC; Articles 7(2) of the ICTY and 6(2) of the ICTR read that the "official position of any accused person, whether as Head of State of Government, shall not relieve such person of criminal responsibility nor mitigate punishment".
zaterdag 25 februari 2017
Immunity from foreign (domestic) jurisdiction for States and HRSO
1.1. State immunity: par in parem non habet imperium
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of fa ederal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdictio in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity rationae materiae and rationae personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between actes performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can trial HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICY reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of fa ederal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdictio in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity rationae materiae and rationae personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between actes performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can trial HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICY reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
A brief description of the use of force in self-defence
Before considering whether the right to exercise self-defence justifies
any measures taken by a State, let's take at look at the general rule of
international law regarding the use of force. The general prohibition
of the use of force is provided by Article 2 para 4 of the UN Charter.
Two exceptions to this prohibition are (1) authorization by the UN
Security Council (Article 42 UN Charter) and (2) self-defence (Article
51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
Use of force as a means of self-defence
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
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