Complaining about violations of the ICCPR

Complaining about violations of the ICCPR - If a state is a party to ICCPR and the Optional Protocol I, that state then has accepted the jurisdiction of the human rights committee. As a result, an individual of that state can then use the individual complaints procedure as provided for in art. 1 and 2 of optional Protocol I of the ICCPR. If a state hasn’t accepted the optional Protocol, then these rights can only be domestically be used in courts (art. 93/94 Dutch constitution). - This procedure implies that individuals can fill in a complaints document and the Human rights committee will consider that complaint if admissible and issue legal non-binding views. Art. 2 jo. 5 (2)(b) of the Optional Protocol states that the individual must have exhausted all available domestic remedies and the complaint must be written. - Other admissibility criteria can be found in art. 5(2) Optional Protocol. Sub a states that (fill in) and this means that a complaint may not simultaneously be under examination by another court or committee. Sub b states that (fill in) and this means that the complaining individual should institute proceedings before the national judge first and proceed to the highest national level, before the case is admissible before the Human Rights Committee.

Complaining about violations of the ICCPR

Complaining about violations of the ICCPR

-          If a state is a party to ICCPR and the Optional Protocol I, that state then has accepted the jurisdiction of the human rights committee. As a result, an individual of that state can then use the individual complaints procedure as provided for in art. 1 and 2 of optional Protocol I of the ICCPR. If a state hasn’t accepted the optional Protocol, then these rights can only be domestically be used in courts (art. 93/94 Dutch constitution).

-          This procedure implies that individuals can fill in a complaints document and the Human rights committee will consider that complaint if admissible and issue legal non-binding views. Art. 2 jo. 5 (2)(b) of the Optional Protocol states that the individual must have exhausted all available domestic remedies and the complaint must be written.

-          Other admissibility criteria can be found in art. 5(2) Optional Protocol. Sub a states that (fill in) and this means that a complaint may not simultaneously be under examination by another court or committee. Sub b states that (fill in) and this means that the complaining individual should institute proceedings before the national judge first and proceed to the highest national level, before the case is admissible before the Human Rights Committee.

ICCPR and derogation

ICCPR and derogation

Legal issue: it is allowed to derogate from provisions of the ICCPR

 

Rules:

-          As a principle rule, the ICCPR does provide for the possibility to derogate from the provisions of the ICCPR. Only possible under strict conditions. Art. 4 ICCPR contains the derogation clause.

-          Firstly, there must be a situation of public emergency which threatens the life if the nation. Secondly, this situation must officially be proclaimed. Furthermore, derogation is only permitted to the extent strictly required by the exigencies of the situation. In addition, art. 4 requests that the measures are not inconsistent with other obligations under IL and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin.

-          Par 2 of art, 4 also determines that derogation from specific rights is not allowed. These rights are contained in art. 6,7,8,11,15,16.18 ICCPR.

-          The final condition to be met is that the state that wishes to derogate has to inform the other state parties to the ICCPR through the intermediary of the Secretary General of the United Nations about its derogation.

-          It can thus be argued that art. 4 permits state parties to the ICCPR to derogate from provisions contained in the convention. State parties are however obligated to derogate within the clearly prescribed limits of art. 4 par 1 en 2. Derogation from the prohibition of torture, cruel, inhuman and degrading treatment is prohibited under art. 4(2) jo. Art. 7. Other measures not constituting a violation of art. 4 (2) would thus be permitted.

-          It can thus be concluded that it is indeed possible to derogate from provisions under the ICCPR. Art. 4 sets out the requirements. Derogation from the prohibition of torture is prohibited under art. 4(2). As regards art. 21 and the right to peacefully assembly, it is concluded that derogation is permitted within the prescribed limits of art. 4(1).

Done strike and human right law/law of armed conflict

Done strike and human right law/law of armed conflict

Legal issue: The legality of the drone strike under human rights law and the law of armed conflict

 

Rules:

-          Both the law governing IACs and NIACs allow states to use military force against combatants, civilians directly participating in hostilities and fighters pursuant to the principle of distinction. Collateral damage among civilians and civilian objects is not excluded, however, provided that is nit excessive to the military advantage anticipated. For IACs this rule has been codified in art. 551 (5)(b) API.

-          Human rights law does not cease to remain applicable in times of armed conflict, including right to life. This was confirmed by the ICJ in Wall Opinions par 106. In case of conflict, the law of armed conflict will be the lex specialis

-          However a state party to the ICCPR or the ECHR must only observe its obligations under both conventions towards people under their jurisdiction. The ECtHR had interpreted this requirement under art 1 ECHR, restrictively by requiring that the relevant state has effective control over a particular area (jaloud v. the Netherlands).

·       Operating a drone over Syria may be insufficient to establish that the Netherlands had effective control over a particular area, although this had not yet been established by the ECtHR (jaloud case is different). There is no spatial or personal jurisdiction. If the Netherlands had had jurisdiction over XXX and his family members, then it would have had tor respect their right to life pursuant to art. 2 ECHR jo art. 6.

-          However the Netherlands conduct would have to be assessed by reference to the law of armed conflict, however, as the relevant les specialis. Under the law of armed conflict, XXX appears to have been a legitimate target as a member of IS. It would depend on the military advantage of his killing and the knowledge of the Netherlands when they operated the drone to what extent the death of XXX’s mother and brother would be proportionate,

Conclusion:

The applicability of the ICCPR and the ECHR is debatable in this case since it would have to be established that the Netherlands exercised jurisdiction over XXX and his family. To the extent of human rights law, in particular the right to life, would be applicable to this case, then the drone operation would be assessed under the law of armed conflict, which allows the killing of combatants, civilians directly participating in hostilities, and fighters. XXX appears to qualify as a legitimate target and the killing of its family members will depend on the military advantage by killing XXX.

State Responsibility

State Responsibility

Legal issue: to what extent is country X responsible under Public International Law for the damage etc.

 

Rules:

-          Customary rules on state responsibility are codified in the ARSIWA. Art.1: responsibility required a wrongful act. Art. 2: wrongful act requires a breach of an obligation under public international law which can be attributed to a state. Art. 12 further explanation breach. Art. 4-11 ARSIWA rules on attribution.

-          Main rule is that only the conduct of de jure or de facto state organs can be attributed to the state (art. 4). A de jure organ is an organ which qualifies as an organ of the state under the laws of that state. A de factor organ is a group which is completely dependent on that state (genocide case).

-          The conduct op private individuals or groups can only be attributed to a state of their conduct is directed by or under the effective control of a state (art. 8 jo. Genocide case)

-          Under particular circumstances the wrongfulness of a certain conduct can be precluded. There circumstances include force majeure (art. 23) and necessity (art. 25). The threshold for necessity is very high as was confirmed by the ICJ in the Gabcikovo-Nagymaros. And other precluding circumstances.

When is a case admissible before the ICC?

When is a case admissible before the ICC?

Admissibility of cases before the ICC are based on the complementarity principle, meaning that the ICC will only admit cases that are handled by national court in contravention of art. 17 jo 1 ICC statute, like when a state is unable and unwilling to prosecute a case.

When can the ICC exercise jurisdiction?

When can the ICC exercise jurisdiction?

Legal Issue: whether the ICC can prosecute certain people

 

Rules

-          The scope of application of the Rome Statute determines the jurisdiction of the ICC in all cases.

-          Art. 13 for exercise of jurisdiction in 3 situations. These are alternative and not cumulative, so fulfilment of one condition is enough to satisfy thus precondition for the exercise of jurisdiction by the ICC.

-          The formal scope of application is limited to the states that consented being bound by the Rome Statute. If a State becomes a party to the Rome Statute it accepts the jurisdiction of the ICC in relation to crimes committed on the territory of that state (art. 12(2)(a)) and in relation to its nationals who are accused of committing crimes (art. 12(2)(b)).

-          The material scope of applicate and thus the material jurisdiction of the ICC is limited to the four categories of crimes listed in 5-8 and 8bis Rome Statute.

·       This list includes war crimes, in particular when committed as a part of a plan or policy or committed at a larger scale (art. 8 (1)). Art. 8 distinguises between war crimes committed during AIC (art. 8 (2)(a)(b)) and a NIAC (art. 8 (2)(c)-(e)).

-      In view of the principle of complementary (art. 1), the admissibility of a case would depend on the question to what extent a member state of the ICC is unable or unwilling to genuinely instigate proceedings, art. 17 Rome Statute

Use of force

Use of force

Legal issue: The question is whether the military operations were legal under public international law or more specifically whether the use of force was lawful under these circumstances.

 

Rules:

-          The use of force is generally prohibited under PIL. Art. 2(4) UN Charter prohibits the use of force against other states as a starting point (jo. Art. 2(3) UN Charter). This rule qualifies as rule of customary international law. See the Nicaragua judgment par. 188 and 190.

-          There are however 2 exceptions. A State may only use force against another State if the UN Security Council authorises member states to use all necessary means on the basis of art. 39 jo 42 UN Charter. A state may also use force against another state if it is entitled to invoke the right of self-defence pursuant to article 51 UN Charter, which also reflect customary law.

-          A State is entitled to invoke self-defence if it subject to an armed attack, which qualifies as the gravest from of the use of force with a victim state(Nicaragua par 51+191). Not every use of force qualifies as an attack; there must be a certain level of gravity. An armed attack suffices.

-          According to the ICJ in the Nicaragua case, the armed attack must be attributed to a state to justify any use of force against that state (par. 195 and Wall Opinion par. 139), even though art. 51 does not specifically provide so.

The ICJ refers to irregular forces sent by a state or acting on the behalf of another state. In the Wall Opinion the ICJ observed that an armed attack must come from another State and may not be carried out from within the territory of the injured state (par.139).

·       In practice however states have increasingly relied on the rights of self-defence against armed attacks carried out by armed/terrorist groups, or in other words non-state actors (and the host state is unable or unwilling to stop the attacks). In 2014 the US and other states justified their operations against IS in Syria by stating that Syria was unwilling and unable to prevent the armed attacks from IS against Iraq. This seems to indicate that the armed attacks from IS are still somehow attributed to Syria, even though this attribution is not based on active support (effective control) or even logistical support (which was rejected by the ICJ in Nicaragua par195).

·       Art. 51 does not answer this question as it does not indicate who the attacker must be (vb state). This leaves open the possibility that attacks by non-state actors can give rise to the right of seld-defence. The unable and unwilling doctrine comes into play here, as states and commentors have argued that there is a right of use of force in self-defence where the state that is hosting the non-state actors is unwilling an unable to take action to deal with such terrorist threats. The ICJ has not definitely answered this question!!

·       Any use of force in self-defence (the taken measures must meet the unwritten criteria if necessity and proportionality (Nicaragua 194). So there must be no other peaceful means available and the measures must be proportionate in relation to the harm suffered as result of the armed attack.

·       They must declare that they are under attack (Nicaragua)

·       The measures must be reported to the Security Council (art. 51). When the SC takes measures the self-defence actions must stop (art. 51)

ICCPR vs. ICESCR rights – the differences

ICCPR vs. ICESCR rights – the differences

-          The ICCPR covers first generation rights which are the oldest and classical ones, like the right to freedom of speech.

-          These rights are primarily phrases as negative obligations of a state: they require states to abstain/refrain from certain actions.

-          Moreover, these rights involve an obligation of result: the immediate realisation of the right  as listed in the ICCPR is required.

-          This can be deducted from art. 2(1) ICCPR, which states that states are obligated to respect and ensure the rights as enshrined in the ICCPR.

-          The ICESCR covers second generation rights/social rights, like the right to work and to education.

-          These rights generally require a state to undertake action: positive obligations so more political nature.

-          Moreover these rights imply an obligation of conduct rather than result. The progressive realisation of rights enlisted in the ICESCR is required and not the immediate realisation. à art. 2 (1) ICESCR stipulates that states should undertake steps with a view to achieving the full realisation of these rights.

-          However: sometimes the line is blurred. There can be positive obligations under ICCPR rights (urgenda case art. 2 ECHR) and negative obligations under the ICESCR.

Gatt – principles

Gatt – principles

-          3 basic principles to seek to prevent member state from discriminating between products: most favoured nations’ treatment under art 1 (1), national treatment under art. 3(4) and a prohibition on quantitative restrictions under XI(1).

-          Art. III(4) of the GATT when we are talking about certain products being banned and national products not. This provision determines that important good shall receive treatment no less favourable than that accorded to national products with regards to all laws, regulations and requirements affecting internal sale.

-          Question: are these products the same? 1. Concept of likeness, see Japan alcoholic Beverages-case. We must look at

1.      Physical characteristics of the products

2.      The nature and quality

3.      The uses of the product

4.      The consumers tastes and preferences

5.      The tariff classifications

-          Art. XI(1) GATT prohibits WTO-member states from imposing quantative restrictions on the import and export of goods to and from other WTO-member states. This applies to a weapon ban as well, art. XXI c exception when the UN SC wants it

T/F The ICJ can only hear cases involving states that have accepted its compulsory jurisdiction under art. 36(2).

False the ICJ can also hear cases of disputes that states have referred to it by means of a compromis or in a case of prior consent by means of a compromissory clause. A state may even accept the jurisdiction of the ICJ if the accept an invitation of the ICJ to appear before it upon request of a claimant state (forum prorogatum)

State A has urged state B to appear before the ICJ. State B appears and states that the court is not competent to rule this case since state B has not given its state-bound councent to the ICJ. Does the ICJ now have jurisdiction?

State B had not given consent in the form of a special agreement, compromissory clause or optional clause (art. 36). State B has indeed apeared before the court, but they have argued that the state is not competent. Forum Prorogatum does not apply here.

Does the Vienna Conventio on the Law of treaties govern the interpretation of provisions of treaty A?

art. 4 VCLT: the VCLT only applies to treaties concluded after entry into force of the VCLT

T/F: Under the ECHR the right to a fair trial is absolute and cannot be subjected to any limitations?

False: Art. 6 ECHR, in the mothers of sebrenica case the European Court of Human Rights clarified that the right to a fair trial is subject to certain limitations provided by law and necessary in a democratic society. They need to serve a legitimate objective and need to be proportionate

Can you derrogate from the prohibition of torture and the right to peaceful assembly in the ICCPR (terrorism)

Rules: art 4 ICPR

• As a general rule the ICPR does not provide the possibility to derogate from the provisions of the ICCPR. It is only possible under strict conditions.. Art. 4 contains the derogation clause.

• 1. There must be a situation of public emergency which threatens the life of the nation

• 2. this situation needs to be officially proclaimed

• art 4 requests that the measures are not inconsistent with other obligations under IL and nit not invoke discrimination

• par. 2 some rights are not allowed

• article 6,7,8,11,15,16,18

• final condition: state whishes to derogate had to inform other state parties to the ICCPR through the intermediary of Secretary General of the United Nations: duty to inform

Anwser: thet can derogate

art. 4 (2) jo 7 jo 21

T/F: Under international humanitarian law, all situations of armed conflict are governed by the same rules

False: IHL distinguishes IACs and non-international armed conflicts. Subject to different rules

NIAC—> Common art. 3 GC and additional protocal II

AIC among other treaties art. 4 geneva conventions and additional prot. I

The ICC may exercise juridiction over civilians of state A that have died in state B pursuant to the Rome Statute. State B is a party, state a not

True For a state refferal pursuant to art 13a RS, a state needs to comply with the territorial or personal scope of jurisdiction of the ICC as mentioned in art. 12 (2) RS.