Terrorism

Terrorism

Terrorism

Course Overview

Public Law

INTERNATIONAL LEGAL ORDER

International Law: A legal framework that governs the relations between States

Contemporary International Legal System

• Foundational Concepts Underpinning Current International Legal Order
  • Sovereign Equality of States
    • A linchpin of International law embodied in Art. 2(1) of UN Charter
      • “The Organization is based on the principle of the sovereign equality of all its Members.”
        • Equality: regardless of population, economic weight, or military power → all states are at equal footing as an international legal subject
    • Bodin’s Theory of Sovereignty
      • Inward facing dimensions: its exclusive power to wield legal authority over its subjects i.e. pass laws, establish legal institutions + enforce its legislation
      • Outward facing dimensions: no other State seeks to undermine its sovereignty e.g. overthrowing its government or seeking to influence it through coercion.
  • Decentralized Authority
    • International law → recognizes multiple + equal sovereign entities with no legislature standing supreme over States
      • Vertical Legal Order: Domestic courts → a single entity recognized as sovereign e.g. supreme courts, cour de cassation, house of lords, etc.
      • Horizontal Legal Order: No superior authority i.e. no hierarchy → States come together to create new legal obligations through treaties + customary international law
  • Consent
    • Only those obligations to which a State has committed itself will be considered binding
      • i.e. unless they agree to be restricted, they are not
    • Principle of Reciprocity: States consent to limit their freedom of action for mutual benefit
    • Art. 2(2) UN Charter
      • “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.”
        • Good faith: an appeal to mutual consideration + cooperation between States, to act without fraud or malice
    • Art. 26 Vienna Convention
      • “Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

SOURCES OF INTERNATIONAL LAW

Formal vs. Material Sources of International Law

• Formal: methods of law-creation that are legally binding on their addressees and of general application
  • Binding due to the consent of the addressee to them
• Material: Not legally binding but may provide evidence that sheds light on the existence of a legally binding rule

Formal Sources

• Article 38 of the Statute of the International Court of Justice
  • Regarded as the authoritative, complete statement of the sources of International law:

1. “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
   1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
   2. international custom, as evidence of a general practice accepted as law;
   3. the general principles of law recognized by civilized nations;
   4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”

Treaties + Conventions

• Treaties: A formal instrument through which States can agree that certain obligations will be binding between them
  • Synonyms: Conventions, Charters, Agreements, Pacts, Covenants
  • Article 2 (1) VCLT
    • “‘Treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation
  • CONSENT: Treaties create obligations not rules therefore do not affect parties that did not agree to be a part of it; pacta tertiis nec nosent nec prosunt
  • ‘Lawmaking Treaties’
    • Multilateral conventions creating a regime of legal rules of general application + not limited to just the conduct of the parties e.g. the Geneva Convention 1988
    • Create general rules which arguably guide States + other actors that are not parties

Customary International Law

• Customs: Social practices or norms unwritten but gradually accepted as rules by the members of the group
• Customary law: A recurring interaction among individuals + groups that is accompanied by the acknowledgement that such a mode of interaction produces certain expectations of conduct that ought to be satisfied
  • Cutomary law ≠ laws from a deliberate lawmaking process → rather through assertion of social practices of individual actors which crytsallize over a long period of time
• Elements of Custom
  • Usus: Usages
    • Material element; The actual practice of States in their relations
    • Requirement for a ‘general practice’
      • State practice: the action or inaction of States in their relations with each other, or in relation to recognized international actors such as international organizations
        • Ranges from international actions e.g. signing a treaty to internal executive or administrative acts e.g. passing of legislation
  • Opinio juris sive necessitatis: An opinion as to law or necessity
    • Subjective element; Belief of States that such a behavior is ‘law’
      • A psychological element on the part of the State as to its opinion on the legal status of a rule
    • Deliberative element which allows for the rationalization of practice into something more coherent
• Exceptions wherein the Application of Customary Legal Rule is not Universal
  • Persistent Objection
    • Allows a State to exempt itself from the application of a customary rule if it can be proven that it had objected persistently + explicitly when the norm was emerging
    • BUT a State can not claim unilateral to be bound by a special custom applying only to itself
  • Subsequent Objection
    • Accepted the original rule but objects to proposed changes to that rule
  • Particular/Localized Custom
    • Customary laws that only apply to a particular region or localized area
    • Bilateral custom: binding only two States
      • ICJ: “The Court sees no reason why long continued practice between States accepted by them as regulating their relations should not form the basis of mutual rights + obligations between the two States”
• Advantages of Customs
  • Retains an important structuring role
    • Allows for a holistic vision of how treaties interrelate with one another + how treaties can contribute to lawmaking
• Disadvantages of Customs
  • Unwritten
  • Shaped through the practice of ALL States
  • Difficulties in ascertaining whether a new rule has emerged

General Principles Recognized by ‘Civilized Nations’

• Article 38 (1)(c) Statute of the International Court of Justice
  • “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply the general principles of law recognized by civilized nations”
• General principles = NOT derived from the consent of a State to be bound
  • Defined by their structural character:
    • To avoid gaps in the international legal system
    • To aid in the interpretation of other primary sources in novel situations
    • To ensure that international is complete even if there is no immediate and obvious rule applicable to a given international situation
  • Examples
    • Obligation to make reparation for breach of an obligation
    • Abuse of rights + requirement of good faith
    • Nemo judex in sua causa propria
    • Lis pendens
    • Res judicata

Material/Subsidiary Sources

• Article 38 (1)(d) of the Statute of the International Court of Justice
  • “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”
• Rests on the idea that a judge or highly qualified publiscist will rely on formal sources of law to develop their legal argument

Judicial Decisions

• Case law
• Decades of tradition + deference → judicial decisions carry a heightened authority

Writings of the Most Eminent Publiscits

• Role of ‘la doctrine’ that stimulates new directions for policy + practice

Other Sources Beyond Article 38

• Unilateral Acts of a State
  • Defined circumstances = unilateral acts of a State being binding for that State i.e. a State just decides something for themselves in an international environment
    • The act must be accepted, recognized, or somehow acknowledged by another State
• Resolutions of the UN General Assembly (UNGA)
  • General Assembly has no formal power under the UN Charter BUT Some UNGA Resolutions have been highly influential in the development of international law
• Resolutions of the UN Secutiry Council (UNSC)
  • UNSC composed of 15 States elected by the UNGA + primary responsibility under the UN Charter for the maintenance of international peace + security
  • Decisions of the UNSC will be carried out by all of its members
    • Art. 25 UN Charter
      • “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
    • Art. 103 UN Charter
      • “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
• Soft Law
  • Body of standards, commitments, declarations, policy guidelines, codes of conduct + other instruments that do NOT impose legally binding obligations
  • Frequently invoked when States have not yet found the consensus necessary to enter into binding obligations

LAW OF TREATIES

Pacta sunt servanda: The expectation that States will fulfill the obligations to which they have consented

Basic Concepts + Principles

• Article 2(1)(a) VCLT
  • “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”
  • Key elements
    • A written agreement
    • Between international legal subjects
    • Governed by international law

The Making of Treaties

• Formal Conditions to Enter into Treaty Relations
  • Principle that a State/international organization has duly authorized representatives to consent to it being bound
    • Personification of a State incl:
      • Heads of State
      • Heads of government e.g. prime ministers
      • Ministers for foreign affairs
      • Head of diplomatic missions
        • For the purpose of adopting a treaty between the accrediting State and the State to which they are accredited
      • Representatives accredited by States to an international organization
        • For the purpose of adopting the text of a treaty
• Expressing Consent to be Bound
  • Consent by signature
    • Purpose of signature ≠ expressing consent to be bound → usually first step towards ratification, acceptance, or approval under domestic law
    • Does not impose a promise by the signatory to ratify the treaty or to take further steps towards ratification
      • A signatory is only bound to a good faith obligation to ‘refrain from acts which would defeat the object + purpose of a treaty’
    • Can be binding in some circumstances
      • Negotiating parties may agree that signature is the final stage of a treaty-making process + equals consent to be bound
        • Situations of relatively routine + non-contreversial treaties in which States wish to avoid legislative or administrative processes
        • Situations of urgency wherein parties have to act swiftly
  • Consent by ratification
    • Ratification: the process through which the competent authorities within a State, usually a legislature, express their consent to be bound to an international agreement
    • Art. 14 VCLT
      • Ratification = necessary when:
        • The treaty provides for such consent to be expressed by means of ratification
        • It is otherwise established that the negotiating States were agreed that ratification should be required
        • The representative of the State has signed the treaty subject to ratification
        • The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation
    • Parties formally exchange or deposit their respective instruments of ratification → a matter of courtesy
  • Consent by accession
    • Accession: the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.
      • A State joining an existing treaty
    • Circumstances of use
      • The treaty entered into force before the State became a State
      • Any State created after 1945
      • Changes in political circumstances within a State that entitles a change in policy e.g. Spain joining NATO + the EU after its transition to democratic government
    • Only possible if the treaty is OPEN for non-parties to accede

The Entry into Force of Treaties

• • Treaties entry into force → as soon as the consent to be bound of all negotiating States has been establish
  • Multilateral treaties: a treaty to which two or more sovereign states are parties
    • Some require a minimum number of ratifications necessary for the treaty to enter into force
    • Some specify a certain date when it enters into force or within a specified time period
• Ammendment + Modification of Treaties
  • Amendment: Art. 39 + 40 VCLT
    • More formal procedural
    • States have the right to opt out of an amending agreement → stay bound to the existing terms
    • Article 39 VCLT
      • “A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except insofar as the treaty may otherwise provide.”
    • Article 40 VCLT
      • “1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.
      • 2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:
        • a) the decision as to the action to be taken in regard to such proposal;
        • b) the negotiation and conclusion of any agreement for the amendment of the treaty.
      • 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.
      • 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State.
      • 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:
        • a) be considered as a party to the treaty as amended; and
        • b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. “
  • Modification: Art. 41 VCLT
    • Article 41 VCLT
      • “1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:
        • (a) the possibility of such a modification is provided for by the treaty; or
        • (b) the modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

• • • • 2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

Reservations to Treaties

• Reservatons to treaties: unilateral acts through which states choose to exclude or modify the legal effect of a given provision when consenting to be bound by a treaty obligations
• Article 19-23
• Reservations may not be allowed if:
  • Prohibited by the treaty
  • Limited to certain parts of the treaty
  • The reservation is incompatible with the object and purpose of the treaty
• Reservations may be withdrawn at any time by the reserving state
• Identifying a reservation
  • Article 2 (1)(d)
    • “‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”
• Hard vs Soft objections to reservations
  • Hard objections: even if both parties sign the treaty, the treaty (all articles, not just the one w/ reservation) do not apply between those parties, only applies between them & other States
    • Article 20 (4)(b)
  • Soft objections: objection made, but State still wants to be signatory party → other articles still have legal effect
• Legal consequences of impermissible reservations
  • Parties that accept or are silent on the reservation → reservation takes place between those states
  • Parties that reject the reservation → reservation not invoked by the reserving party with the rejecting state

The Scope of Treaty Obligations

• Pacta sunt servanda
  • Article 26 VCLT
    • “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
  • The reciprocal wrongful conduct of the parties could not bring a treaty to an end or justify its termination
  • Parties are obliged to seek a solution within the cooperative context of the binding treaty even in cases of reciprocal breach

Treaties and Third Parties

• A treaty cannot create obligations for a third state without its consent → pacta tertiis nec nocent nec prosunt
• Article 35 VCLT
  • “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”
  • One exception: if the rules set forth in a treaty provision have entered into customary international law, the rule can bind a third state
  • Article 36 does not require the written consent of the third state

Interpretation of Treaties

• Interpretation of a treaty → Article 31-33 VCLT
• Primary means of treaty interpretation
  • Article 31
    • 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
    • 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
      • (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
      • (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
    • 3. There shall be taken into account, together with the context:
      • (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
      • (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
      • (c) any relevant rules of international law applicable in the relations between the parties.
    • 4. A special meaning shall be given to a term if it is established that the parties so intended
  • Common aims of the process of treaty interpretation
    • Objective approach: To discern the objective meaning of the actual text of a treaty provision + to emphasize the analysis of the words used → textuality
    • Subjective approach: To peek behind the text itself + look at the intention of the parties to an agreement as a means to resolve any ambiguities
    • Teleological or Purposive approach: emphasize the object + purpose of a treaty as the foundation against which the meaning of any specific provision should be understood
  • Article 31 → Context
    • The preamble and annexes of a treaty instrument + any external agreement or instrument made by the parties in connection with it
• Supplementary means of treaty interpretation
  • Article 32 VCLT
    • “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
      • (a) leaves the meaning ambiguous or obscure; or
      • (b) leads to a result which is manifestly absurd or unreasonable.”
    • Examples
      • Use of preparatory materials → travaux preparatoires
      • Investigation of the circumstances of a treaty’s conclusion
  • Article 33 VCLT
    • “1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
    • 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
    • 3. The terms of the treaty are presumed to have the same meaning in each authentic text.
    • 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”
• The ‘principle of effectiveness’ + treaty interpretation
  • Ut res magis valeat quam pereat
    • Treaties are to be interpreted with reference to their declared objects and purposes
    • Treaties are to be interpreted to give the fullest effect consistent with the normal sense of the words + with other parts of the text
  • Three results of the principle of effectiveness
    • All provisions of the treaty are presumed to have been intended to have significance/necessary to convey the intended meaning
    • The treaty as a whole including each of its provisions must be assumed to serve some purpose
    • Any interpretation that would make the text ineffective or meaningless would be incorrect
  • Principle of effectiveness can only be invoked to give effect to provisions in accordance with the intentions of the parties + in conformity with international law

Grounds for Invalidity, Termination, and Suspension of a Treaty

• Possible Invalidity of Treaties
  • Relative grounds for invalidity
    • Article 46-50 VCLT
    • May be invoked by one party as against the offending party BUT do not affect the invalidity of a treaty as a whole between the remaining parties
    • Treaty becomes voidable between the invoking and offending parties
    • Often due to:
      • A lack of competence to bind the state
      • A procedural defect
  • Absolute grounds for invalidity
    • Articles 51-53 VCLT
    • Renders the treaty as a whole void + devoid of legal effect between all parties
    • Treaty regarded as having never existed at all + all parties are released from their legal obligations from it
    • Reasons for absolute grounds
      • A treaty has been signed due to coercion of a representative
      • Signed through the threat or use of force by one party against another
  • A treaty in breach of peremptory norms i.e. jus cogens
    • Article 53 VCLT
      • “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”
• Termination + Suspension of Treaties
  • Terminated Treaty = a treaty which no longer generates legal effect
    • Termination of a treaty does not affect any rights, obligations, or the legal situation of the parties created through the treaty prior to its termination
  • Suspended Treaty = the treaty is not definitively put to an end → parties are released from any mutual obligations for a period of time
  • Grounds for termination or suspension
    • Termination or suspension by operation of the treaty
      • Treaty contains a specific provision allowing its termination or suspension
      • All parties give consent to its termination or suspension
    • Termination or suspension without specific provision
      • Many treaties → don’t contain specific provisions regarding denunciation or withdrawal
      • A party then may only terminate or suspend the treaty if the parties intended to allow such a possibility or
      • Where the right may be implied by the nature of the treaty
      • Article 59 VCLT
    • Further grounds
      • Material breach
        • A repudiation of a treaty not permitted by the VCLT
        • The violation of a provision essential to the accomplishment of the object and purpose of that treaty
        • Inadimplenti non est adimplendum
        • Article 60 VCLT

A party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship

• • • • Supervening impossibility of performance
        • Certain circumstances emerge making some obligations impossible → the party may withdraw from or terminate it
        • Only in cases of force majeure → unpredictable extraordinary circumstances
      • Fundamental changes of circumstances
        • Rebus sic stantibus: a fundamental change of circumstances providing grounds to terminate a treaty

Article 62 VCLT definition of ‘fundamental change of circumstance’

Unforeseen

The circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of consent

ICJ Scope

Must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken

IMMUNITIES

Immunities: prevent foreign courts from exercising jurisdiction regarding the conduct of another State + from adjudicating on inter-State disputes without their consent.

Immunities of the State

• Origins + Development
  • Immunity → to be decided immediately BEFORE proceedings with a case
  • Act of State Doctrine
    • Substantive defense
    • A national court must not adjudicate over disputes relating to legislation or other governmental activities of a foreign state wihtin its own territory
  • Rule of non-justiciability
    • Generally bars a court from adjudicating on certain categories of questions relating to sensitive political matters
• Absolute Immunity
  • The State and its representatives are completely immune from foreign jurisdiction in all circumstances and in relation to all activities.
  • Only related to acts committed in the exercise of sovereign authority (acta jure imperii)
• Restrictive Immunity
  • Domestic practice
    • Restrictive doctrine recognizes absolute immunity only relating to acts committed in the exercise of sovereign authority + not for trading activities or acts that a private person could perform.
    • ⅔ of states have adopted a restrictive approach to immunity
      • ⅓ of states still adhere to the absolute immunity rule (e.g. China + India)
  • International practice
    • UN Convention on Jurisdictional Immunities of States and their Propety (2004)
      • Not entered into force → requires 30 ratifications
      • Influential countries like China reject the restrictive immunity doctrine

State Immunity in Practice

• State Immunity as Defined in UNCJISP
  • Two important considerations
    • The nature of the entity performing an act + whether an entitlement to State immunity encompasses the act of that entity
    • The nature of the governmental act itself + whether it may be classified as an act for which a sovereign State may invoke immunity
• Definition of a State in the law on immunities
  • Article 2 (1)(b) of the UN convention on Jurisdictional Immunities of States and their Property
    • "State" means:
      • (i) the State and its various organs of government;
      • (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity;
      • (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State;
      • (iv) representatives of the State acting in that capacity
    • Reflective of customary international law
• Applicability of Immunity to the acts of a State
  • An act has been performed by an entity that may be encompassed within the meaning of the term ‘state’ → whether the act is of a sovereign or non-soverign nature must be determined
  • Acts of a sovereign nature = immune
    • Acta jure imperii: acts of government law (typical state acts) → immune
      • Generally recognized sphere of sovereign activity:
        • The activities of authorities responsible for foreign and military affairs
        • Legislation
        • The exercise of police power
        • The administration of justice
  • Acts of a private or commercial nature tend not to be immune
    • Acta jure gestionis: administrative law (commercial activities) → not immune
      • Articles 10-16 UNCJISP
        • Commercial transactions: the sale of good or supply of services, loans, or other financial transactions
        • Contracts of employment: ordinary professional activities e.g. medical secretary or domestic worker
        • Personal injuries + damage to property: removes immunity in respect of death or personal injury or physical infliction of damage to a person or their tangible property
        • ETC.
      • Decisive criterion = the nature of the conduct or transaction
  • Deciding factor: is the act of its own character a governmental act or an act which any private citizen can perform
• Non-commercial tortious acts
  • Injury to persons + damage to property
    • Article 12 UNCJISP
      • “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission”
    • Two requirements
      • Physical infliction of damage to a person or property
      • Limited to acts occurring on the territory of the forum state
  • Serious violation of human rights or of a jus cogens
    • Historically violations of jus cogens did not amount to removal of State immunity

Immunities Enjoyed by State Officials + Representatives from Foreign Criminal Jurisdiction

• Some individuals gain immunity because they are inseparable from the very personality of the State
• Types of immunity from jurisdiction
  • Both types of immunity raise procedural bars to jurisdiction
  • Immunity ratione personae
    • Attatched to the position
    • A wide personal immunity extending to the totality of the person’s acts both official and private
    • Justified by the function they serve on behalf of the State → so central to the conduct of international relations that absolute personal immunity is necessary
  • Immunity ratione materiae
    • Attatched to the function
    • More restrictive → applies to the acts performed in their official or representative capacity NOT to the person
    • Only acts performed in office
    • When term ends → immunity ends too
• Heads of state
  • Representation of a State = the actions of the person + the state are one
  • Restrictive doctrine for heads of state
    • Heads of state immunity = full immunity from criminal jurisdiction + inviolability of another state which could hinder their performance of their duties
    • Exception: Article 31 (1) VCDR
• Heads of government + ministers for foreign affairs
  • Ratione personae: also extends to heads of government + misters for foreign affair
    • ICJ Judgement Arrest Warrant 2002
• Immunity of other state officials
  • All states (regardless of function) → immunity ratione materiae from civil proceedings
• Immunity for serious crimes under international law
  • The Pinochet judgement
    • One of the first domestic judgements to reject a claim of immunity ratione materiae
  • Remains contreversial → no general exception from immunity presently exists under customary international law
  • ILC Draft Article 7
    • Suggests immunity not apply in six core international crimes: genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance

STATE RESPONSIBILITY

Responsibility → how fault or blame is attributable to a legal actor for the breach of an international legal obligation

Concept of Responsibility in International Law

• ILC Articles on State Responsibility
  • ARSIWA
    • Codification of the law on state responsibility → not binding but authoritative
    • Primary vs Secondary rules of international law
      • Primary: substantive and procedural obligation that bind states e.g. prohibition of the use of force, respect of diplomatic immunity
      • Secondary: consequences of non-performance or breach of primary rules
    • Secondary rules = articles in ARSIWA developed with the logic that the regime of international responsibility falls within the category of secondary rules
• International organizations + other non-state actors
  • ARIO developed modeled after ARSIWA

Core Principles of International Responsibility

• Internationally wrongful act = Article 1 ARSIWA
  • Every internationally wrongful act of a state entails responsibility
  • Wrongful act can also inclue omissions
• Criteria for an Internationally wrongful act: Article 2 ARSIWA + customary international law
  • There is an internationally wrongful act of a State when conduct consisting of an action or omission:
  • (i) Attributable to a state
    • The conduct of an organ of the State (de jure or de facto)
      • Article 4 ARSIWA (article 4-11)
        • “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”
      • Organ de jure
        • Official legal entities
        • Examples: acts of police, soldiers, and other members of a state’s armed forces
      • Organ de facto
        • Equated if the private actor acts in complete dependence on the state

Requires to look beyond legal status alone + grasp the reality of person taking action and the state

• • • • • Acts of private actors can be attributable to a state in exceptional circumstances

ICJ Judgement Application of the Genocide Convention

• • • A person or entity exercising governmental authority on behalf of a state
      • States may implement their will through recourse to independent agencies, parastatal entities, or corporations
      • Article 5 ARSIWA
        • “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance”

(i) empowered under a state municipal law to exercise elements of governmental authority

(ii) has acted in that specific capacity

• • • Responsibility for acts ultra vires
      • Ultra vires: Beyond the power
        • Attribution to a state if state organs or persons exercising governmental authority commit an act that exceeds the competence of the state
      • A state must oversee/control the organs and entities through which it operates → state is responsible even if organs act outside the sphere of their authority or violate internal law
      • Article 7 ARSIWA
        • “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”
    • Other circumstances where a state may be responsible
      • General rule: a state is NOT responsible for acts of other actors which neither act under its authority nor are its oragans or agents BUT
      • Acts under the direction or control of a state
        • Conduct of a private person can be attributed to a state IF they are acting on the instructions of or under the direction or control of the state
        • Whether a state has exercised effective control over the conduct that led to a breach

The Effective Control test

• • • • Insurrections, revolution, and the adoption of private acts by the state
        • Successful insurrections = an act of a state → Article 10 ARSIWA
        • State acknowledges a private actors act as their own = an act of the state
      • Due diligence
        • Corfu channel case

No state may ‘knowingly allow its territory to be used for acts contrary to the rights of other States’ (ICJ, 1949)

• • • Responsibility in connection with the act of another state
      • Circumstances
        • If a state aids or assists another actor in breaching an obligation owed by both of them. State only responsible for aiding and not the breach itself. → Article 16 ARSIWA
        • If a state exercises direction or control over another state in which case the state will be responsible for the breach itself → Article 17 ARSIWA
        • If a state coerces another state to breach an obligation, the state is responsible for the breach itself → Article 18 ARSIWA
        • A State which coerces an international organization to commit an act is internationally responsible for that act → Article 60 ARIO
      • All circumstances, states must have knowledge of the circumstances of the wrongful act committed by the other actor
  • (ii) In breach of an international obligation
    • Violation of an international obligation
      • There has to be a breach or violation of an international obligation to make a state responsible
      • No generalized system of strict liability under international law
      • International obligation must have been binding for a state at the time of the breach
      • Article 14 ARSIWA
        • “The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue”

Circumstances precluding wrongfulness

• An act which would normally be internationally wrongful is not deemed as such due to certain circumstances → Chapter V ARSIWA
  • A justification for specific conduct in a defined situation → does not create an exception to the relevant international obligation
  • A state or international organization cannot invoke any justifications for a violation of a jus cogens
• Circumstances precluding wrongfulness
  • Consent
    • Article 20 ARSIWA
    • A state consenting validly that another state acts in a manner which would have been internationally wrongful without the consent
      • For example: allowing another state to intervene military on its territory to suppress an insurgency
    • Consent is limited + must be constructed strictly
      • A state cannot exceed the limits of the consent given
    • Consent cannot excuse jus cogens
  • Self-defense
    • Article 21 ARSIWA
    • The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defense taken in conformity with the Charter of the United Nations → Article 51 UN Charter
      • Has to be necessary and proportionate
  • Countermeasures
    • Article 22 ARSIWA
      • “The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three”
    • Countermeasures: non-forcible acts which would ordinarily be wrongful but which are justified as a valid means of self-help in response to the internationally wrongful act of another
    • Procedural + substantive conditions for countermeasures
      • Must be taken in response to a previous wrongful act of another state directed against the injured state
      • The injured state must have called upon the wrongdoing state to cease its wrongful conduct ot to make reperation
      • The countermeasure must be commensurate or proportional to the injury suffered
      • It should be reversible
      • It should be terminated as soon as the wrongdoing state complies
  • Force majeure
    • Situations where a state is powerless to act due to unforeseen events wholly beyond its control e.g. natural disasters
    • Force majeure cannot be invoked when the state caused the situation
  • Distress
    • Article 24 ARSIWA
      • “If the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”
  • Necessity
    • Conduct which is the only means for a state to safeguard an essential interest against a grave and imminent peril
      • Essential interest:
        • The conduct must be the only means available to the state
        • The plea cannot seriously impair an essential interest of another state or the interest of the international community as a whole
        • The relevant obligation cannot exclude a plea of necessity
        • The state invoking necessity cannot have contributed to the situation

Invocation of International Responsibility

• General Considerations
  • Another actor must be able to invoke state responsibility
  • Article 42 (a) ARSIWA and Article 43 (a) ARIO
    • Both recognize an specially affected party
    • Both recognize a directly injured state
      • No distinction is made between the two in international law
• Invocation of reposibility
  • Article 48 ARSIWA
  • Erga omnes
    • Obligations of a state towards the international community as a whole
    • Some obligations are erga omnes

Consequences of an Internationally Wrongful Act

• Part II ARSIWA enumerates remedies available to an aggrieved party in response to a breach of an obligation
  • Cessation
    • Article 30 ARSIWA
    • Requires a wrongdoing party to cease a wrongful act + offer assurance and guarantees of non-repetition when appropriate
  • Reparation
    • Article 31 ARSIWA
    • The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
    • “Reparation must wipe out all consequences of the illegal act as much as possible and re-establish the wituation which have existed if the act had not occurred” ICJ Judgement
    • Article 34 ARSIWA forms of reparation
      • Restitutio in integrum
        • Article 35 ARSIWA
        • A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed
      • Compensation
        • Article 36 ARSIWA
        • The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
        • The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.
      • Satisfaction
        • Article 37 ARSIWA
        • Acknowledgment, apologies, remorse
• Aggravated responsibility
  • Serious breaches of premptory norms
  • Article 41 ARSIWA

USE OF FORCE + SELF-DEFENSE

Role of Law in Constraining International Violence

• Historically a lack of clarity on violence between different international actors
  • Most legal efforts in the early 20th centure focused on:
    • Jus in bello: methods of conducting war
    • Jus ad bellum: the right to wage war

Prohibition on the Use of Force

• Article 2 (4) UN Charter
  • “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
    • Regarded as a principle of customary international law, binding on all states → some argue it is jus cogens
  • Threat or use of force
    • Force: armed force used directly or indirectly against another state
    • UNGA definition of aggression
    • Border disputes ≠ use of force

The Right to Self-Defense

• Article 51 UN Charter
  • “Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.
• Necessity, proportionality, immediacy
  • The Caroline correspondence
    • Action taken in self-defense must be reasonable and proportional
    • “It will be for that government to show a necessity of self- defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation”
  • Immediacy: imminent + possibility of pre-emptive self defense, during the attack to stop the attack
  • Necessity: deafening state has no other way of stopping an armed attack than to retaliate
  • Proportionate: measured in relation to what is necessary to halt or repel an armed attack
    • Measured case-by-case
      • Scale of the whole operation
      • Scale + scope of a given operation in relation to the territory of the target state
      • Types of weaponry employed
• Definition of an Armed Attack
  • Conventional sense: a state entering the territory of another state by land, sea, or air
  • UNGA Definition of Aggression → not binding but reflecting customary law:
    • The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
    • Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
    • The blockade of the ports or coasts of a State by the armed forces of another State;
    • An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
    • The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
    • The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
    • The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein
  • Scale + Effects test → Nicaragua
    • Only use self-defense in the instances with a large scale
• Self-defense and Non-state Actors
  • Courts in the past have recognized the notion of an armed attack could also extend to the use of force by terrorist organizations e.g. Al-Qaida, Hizbullah
    • Instances where self-defense against non-state actors is not lawful e.g. DRC v Uganda
  • The Unable or Unwilling Doctrine
    • State which is unable or unwilling to prevent its territory from being used to carry out an attack against another state → that state is aiding and abetting the acts of the non-state actors
• Collective self-defense
  • Can take the form of collective security under the auspices of the UN → regional self-defense alliances can lawfully intervene e.g. NATO: attack against 1 = attack against all
  • Collective self-defense requires the CONSENT of the attacked state i.e. they must have requested help

Other Exceptions to Article 2 (4) UN Charter

• Article 39 + 42 UN Charter
  • Endangerment of peace and security
  • Requires authorization from the UNSC in the cases
• Article 20 ARSIWA
  • Consent of a state = a circumstance that percludes wrongfulness

SANCTIONS

Sanctions

• Measures taken:
  • Ordinarily themselves in breach of an international organizations
  • A coercive response to the breach of another state
  • Taken in execution of a decision of an organ an international orrganization which is legally competent to make a relevant decision or recommendation
• Sanctions in UN practice
  • UNSC determines a breach or threat to the peache under Article 39 UN Charter → UNSC has power to impose any type of measure not involving the use of armed force onto the state
    • Under Chapter VII = binding → Complete or partial interruption of:
      • Economic relations
      • Rail, sea, air, postal, and telegraphic
      • Radio and other means of communication
      • Severance of diplomatic relations

Blacklisting Regimes

Contesting UNSC Blacklisting regime

• Global War on Terrorism + the emergence of pre-emptive security
  • Guantanamo Bay
  • Pre-emptive security
    • Gave UNSC unprecedented power
      • UNSC determines which people (who have not committed a crime yet) are placed for something they MIGHT do
      • No time limit to a sanction
      • Very broad scope and criteria for someone to be put on the list
      • Terrorist suspects become a “prisoner of the state”
      • UNSC decisions cannot be judicially challenged because there is no sovereign power that holds that jurisdiction
    • Human rights treaties do not apply to international organizations → only states
  • The Right to an Effective Remedy (2008) ECJ Kadi decision
  • Global administrative law mechanism
    • Transplant domestic law onto international level
• Ombudsperson de-listing procedure
  • A form of global exceptional governance → not a quasi-judicial tribunal or international human rights body
  • Lack of an effective remedy
    • Under international human rights law → all indiviudals whose rights have been interfered with are entitled to a remedy that is effective, independent and impartial
      • Ombudsperson falls short of this human rights standard
    • The listed individual is unaware that this procedure occurs → therefore, they can be blacklisted and removed without any awareness
      • UNSC does not acknowledge the OG decision for person to be put on the list when delisting them i.e. no recognition of mistake or remorse
      • Frees states from ever having to explain their original rationale on why they listed a person in the first place
  • The problems of secret evidence
    • ‘Classified’ evidence prohibits the ability of a fair trial
  • Listing as preemptive measure
    • Speculative legal standard on the basis of previous allegations on a domestic level extrapolated on an international scale
  • Inequality of arms
    • No balance of power between the defendant and the plaintiff
  • Entangled in the global listing assemblage

Criminal Law

TERRORISM

“One man’s terrorist is another man’s freedom fighter”

The Rule of Law

• UN Definition
  • A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are:
    • Publicly promulgated
    • Equally enforced
    • Independently adjudicated
    • Consistent with international human rights norms and standards
• Formal Aspects of the Rule of Law → The Legality Principle
  • General
  • Promulgated
  • Consistent
  • Stable
  • Clear + Specific
  • Practicable
  • Strictly applied
• Subsantive Aspects of the Rule of Law
  • Fundamental human rights preservation to protect citizens from government abuse
• Tensions with the Rule of Law + Terrorism
  • Seeking to prevent terrorism wtih traditionally reactive criminal law
  • Paradigm of reactive measure changed to proactive measures:
    • Criminalization of preparatory conduct
    • Criminalizing membership in organizations declared to be terrorist
    • Lowering evidentiary standards for the use of coercive investigative measures

Defining Terrorism

• Actus reus of Terrorism
  • The underlying act of a terrorist offence should be a serious offence
• Mens rea of Terrorism
  • Requires both a mens rea for the act itself e.g. hurting someone and a special underlying intent e.g. hurting someone to gain information
  • Dolus specialis → special intent
    • Changes intent from one thing to another i.e. an underlying intention for an act
      • E.g. torture to gain information out of a suspect
• Special Tribunal for Lebanon → CUSTOMARY LAW (very controversial)
  • 2011 Interloctuory Decision on Applicable Law
    • (i) Perpetration of a criminal act or threatening such an act
    • (ii) The intent to spread fear among the population or coerce a government to do or not do something
    • (iii) Transnational

CRIMINAL JURISDICTION OVER TERRORISM

Forms of Jurisdiction

• The power of the State to regulate affairs pursuant its laws
  • Involves asserting a form of sovereignty → causes difficulties when jurisdiction is exercised extraterritoriality due to overlapping sovereignty
• Legislative Jurisdiction
  • The right of a State to pass laws that have a bearing on conduct
    • Some States adopt the view that they can domestically pass legislation covering matters from all over the world → e.g. a UK law that forbids a French person from smoking on the streets of Paris.
  • Enforcement of legislation = difficult → problematic with the principle of non-intervention
• Adjudicative Jurisdiction
  • The extent to which domestic courts are able to pass judgement on matters brought before them.
• Executive Jurisdiction
  • The right to effect legal process coercively e.g. arresting someone, undertake searches→ Most intrusive of jurisdictional claims
    • Done through domestic law enforcement agencies i.e. police
  • The Lotus Case
    • Court held: Jurisdiction is territorial and cannot be exercised by a State outside its territory

Traditional Heads of Jurisdiction

• The Territoriality Principle
  • States have the right to exercise jurisdiction over all events on their territory
    • Includes ships, airplanes, etc.
  • A state has jurisdiction over crimes that may originate or are complete abroad so long as at least one of the elements of the crime occurs on its territory
    • Subjective v Objective Territorial Jurisdiction
      • Subjective: where the crime started e.g. rocket launched from country A
      • Objective: where the crime concluded e.g. rocket landed in country B
• The Nationality/Actice Personality Principle
  • ‘Active nationality/personality’
  • Jurisdiction exercised over crimes committed by its national
  • States are entitled to legislate all of their nationals including those abroad
    • Nationals (incl. Armed forces + citizens) ‘carry the flag’ abroad with them
  • Relies on the link between the national and the State to which they owe their allegiance
  • The person committing the crime is a national of the State
  • Genuine link
    • Nottebohm Case: the person asserting the nationality must have a genuine connection with the State
• The Passive Personality Principle
  • Jurisdiction exercised over crimes committed against its national → Lotus case: judges held customary international law does NOT accept this principle
    • The person who is the victim of a crime is a national of the state
  • A rise of this principle post-9/11
  • Concerns:
    • The principle favoring more powerful states at the expense of weaker states
    • People could be subjected to laws of many states at once
  • Generally accepted regarding war crimes → States have the right to prosecute war crimes committed against their nationals
  • Genuine link
    • Nottebohm Case: the person asserting the nationality must have a genuine connection with the State DURING the time of the offence
• The Protective Principle
  • States are entitled to assert protective jurisdiction over extraterritorial activities that threaten State security
  • Overlaps with territoriality, nationality, and passive personality principles

Universal Jurisdiction

• Jurisdiction established over a crime without any recognized link between the prosecuting State and the crime → Most controversial form of jurisdiction
  • States are entitled to (but not obliged to) assert universal jurisdiction over:
    • War crimes
    • Crimes against humanity
    • Genocide
    • Torture
    • Piracy
  • Based on the idea that international crimes are linked with the entire international legal order
    • International law grants all States the right to prosecute international crimes.
• Approaches to Universal Jurisdiction
  • ICJ Yerodia Case
    • Absolute/pure universal jurisdiction or universal jurisdiction in absentia: when a State seeks to assert jurisdiction over an international crime even when the suspect is NOT present in the territory of the investigating State
    • Conditional universal jurisdiction or universal jurisdiction w/ presence: when a State seeks jurisdiction over a international crime when the suspect IS present in the territory

CASE LAW

Nicaragua v. United States of America - ICJ (Armed Attack + Attribution) 1986

Case Summary

• Nicaragua claimed a suit against the United States because for illegal and paramilitary activies in and against Nicaragua
• US was funding, supplying and organizing BUT was not exercising effective control → NOT attributable to the US

Scale/Effect Test

• Criteria for self-defence to be exercised
  • “Attack was grave enough to warrant use of force” → adding a scale element to the use of self-defense

Effective Control Test

• Specifically an armed attack by a non-state actor
  • For it to be attributed to the state → State has to exercise effective control over the non-state actors
• Whether or not a State has instructed the non-state actors to commit the act
  • If instructions are given → effective control IS exercised

Corfu Channel ICJ - Due Diligence (Attribution) 1949

Case Summary

• British ships hit sea mines in Albanian territory causing damages to the ships. The British wanted to claim damages in front of the ICJ → Albania denied all involvement

Due Dilligence

• The principle of care → States must act with prudence and diligence in order to prevent any risk of foreseeable damage.
  • Must prove that they have known OR that they reasonably SHOULD have known
• States have a duty to prevent their territory from being used by States/organizations that undermine other States
  • E.g. safe havens
• What Albania did = an act of omission
• Pg. 22 States cannot“allow knowingly its territory to be used for acts contrary to the rights of other States”.

Tehran Hostages (United States of America v. Iran) ICJ - Endorsement (Attribution) 1981

Case Summary

• In 1979, Iranian militants attacked the US embassy in Tehran and captured hostages. The court questioned whether Iran could be held responsible for the acts of the non-state actors.

Endorsement

• “While conduct of militants could not be directly attributed to Iran, the Iranian State had done nothing to prevent the attack, stop it before it reached its completion, or obliged the militants to withdraw from the premises and release the hostages” → Concluded that this was endorsement and that the acts are attributable to the State
• Para 71: In any event expressions of approval of the take-over of the Embassy…. Above all, the Ayatollah Khomeini himself made crystal clear the endorsement by the State both of the take-over of the Embassy and Consulates and of the detention of the Embassy staff as hostages.

Jurisdictional Immunites (Germany v Italy) ICJ - State immunity 2012

Case Summary

• Italian courts exercised jurisdiction over Nazis → Italians argued that Germany was in violation jus cogens, therefore, it superseded immunity
  • Germany argued that this was in violation of the principle sovereignty i.e. their immunity

State Immunity

• ALL acte jure imperii is immune REGARDLESS of whether it is in violation of peremptory norms.
• Para 93: “Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity.”

Pinochet Case

Case Summary

• Augustos Pinochet was prosected by the Spanish court and questioned his immunity as a state official.

Pincohet Precedent

• Torture does not count as an official act therefore not covered by their immunity ratione materiae

The Caroline Incident (Self-Defense) 1837

Case Summary

• America and Canada
• Crystalized into customary law

Preemptive Self-Defence

• “It will be for that government to show a necessity of self- defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
• Necessity
  • The State had no other means available to stop the attack
• Proportionality
  • Determined on a case-by-case
  • The scale of the self-defense has to be proportionate to the initial armed attack
• Immediacey
  • Temporal element
  • Has to either have just happened or is very forebodingly going to happen.

El Masri v. the Former Yugoslav Republic of Macedonia

Facts of the Case:

Applicant’s version of events

• 31 December: 2003: Applicant decided to take a short trip but was searched by authorities on possible connections to several islamic organizations
• The Hotel
  • Applicant was detained for 19 days in the top floor of a hotel
  • Allegedly on his 7th day in detention an official told him he could leave if he confessed to being a part of Al-Qaeda
• 23 January 2004: the applicant was filmed by a video camera and instructed to say that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany.
  • Handcuffed and blindfolded, he was put in a car and taken to Skopje Airport
  • Two people violently pulled his arms back. On that occasion he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus

Merits

• Article 3 ECHR - The prohibition of torture and ill-treatment
  • Procedural element
    • When a case of torture is alleged:
      • There should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible.
      • Inestigation must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions
      • The investigation should be independent from the executive
        • Implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms
      • The victim should be able to participate effectively in the investigation in one form or another
  • Substantive element
    • Article 3 ECHR is an absolute right
    • Must be severe
      • Duration of the treatment
      • The effects on the individual both physically and mentally
      • The purpose for which the treatment was conducted and the intention behind it → dolus specialis
      • Ill-treatment vs inhuman or degrading treatment
        • Torture can only be labeled to the most severe cases
    • States are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading, including such ill-treatment administered by private individuals
  • CONCLUSION → The respondent State is responsible for the inhuman and degrading treatment in the hotel and the torture at Skopje airport. The respondent State is also responsible for transferring the applicant into the custody of US authorities, thus exposing him to the risk of further treatment contrary to Article 3 of the Convention
• Article 5 - the right to liberty and security
  • the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness
  • Arbitrary detention
    • There has to be reasonable suspicion for the entire time of the detention

Ibrahim and others v. United Kingdom

Facts of the Case

• 21 July 2005: Bombs were detonated on the London public transport system. The first of the three applicants was arrested for being suspected as the perpetrators.
  • They were refused legal assistance for periods of between 4-8 hours to enable police to conduct ‘safety interviews’ → they denied all involvement during these interviews
• At trial: the applicant acknowledged their involvement but denied intent for the bombs to detonate and the safety interviews were submitted as evidence against them
• Fourth Applicant: Incriminated himself when being interviewed as a witness. The police did not arrest him and advise him with his rights during this witness interview.

→ Applied that their lack of lawyer during the interview period violated their rights under Article 6 ECHR and Article 3 ECHR

Merits

• Established that suspects have a right to a lawyer before and after being interrogated UNLESS there are compelling reasons not to. Established in two steps:
  • Compelling reasons for delay in giving the suspect access to a lawyer
    • Exceptional, temporary, and individual assessment
    • Based on domestic law
    • Public safety exception → A danger to Article 2, 3, 5(1) ECHR rights of the general public.
  • Overall fairness of the trial proceedings
    • When there are no compelling reasons, the overall fairness test will be carried out with strict scrutiny and the onus is on the government to prove that the overall proceedings have been fair
    • The overall fairness of the trial has to be assessed
• CONCLUSION → NO violation of Article 6 ECHR. The authorities were under signicifanct time pressure to protect the general public from bomb threats. It was in domestic law as well. There was no ill-treatment reported by the applicants either, therefore, the overall trial is fair.

LATIN

• Pacta sunt servanda: Agreements must be kept
  • The principle that when all signed treaties and agreements must be complied with
• Pacta tertiis nec nocent nec prosunt: A treaty binds the parties only, and not a third
  • A treaty cannot create obligations onto a State that is not a party to it
• Jus cogens: Peremptory norm
  • Law that is so fundamental that it binds all states and does not allow any exceptions
• Usus: Material element of a custom
  • The actual practice of a custom
• Opinio juris sive necessitatis: an opinion of law or necessity
  • The belief that an action was carried out as a legal obligation
• Ex aequo et bono: According to the right and good
  • A tribunal's consideration of a dispute according to what is fair and just given the particular circumstances, rather than strictly according to the rule of law
• Ut res magis valeat quam pereat: It is better for a thing to have effect than to be made void
  • Suggests that treaties are to be interpreted with reference to their declared objects + purpose and that provisions should be interpreted to give the fullest effect consistent with the normal sense of the words and with other parts of the text
• Inadimplenti non est adimplendum: one has no need to respect his obligation if the counter-party has not respected his own
  • the performance of an obligation may be withheld if the other party has itself failed to perform the same or a related obligation
• Acta jure imperii: By right of sovereignty
  • The public acts that a nation undertakes as a sovereign state. These acts are usually immune from legal action or liability in a foreign country.
• Acta jure gestionis: By way of doing business
  • A nation's commercial or private acts, as opposed to its public or governmental acts
• Ratione personae: By reason of the person
  • Concerns the question of who may be a party to the relevant investment treaty proceedings
• Ratione materiae: By reason of the matter
  • Concerns the tribunal’s jurisdiction over the subject-matter of the dispute.
• Ipso facto: By the fact itself
• Debellatio: Defeating or Conquering
  • When one country wins a war so completely that they get to decide what happens to the other country's land
• Lex arbitri: Applicable law
  • The law chosen by the parties to govern arbitral procedure, or the procedural law governing the conduct of the arbitration
• Jus in bello: Right to war
  • Laws governing whether States may resort to war
• Jus ad bellum: Justice in war
  • Laws governing how a State conducts war
• Forum prorogatum: Prorogated jurisdiction
  • When a power is conferred – by the consent of the parties and following the initiation of proceedings – upon the International Court of Justice, which otherwise would not have adjudicated
• Ultra vires: Beyond the powers
  • Used in law to describe an act that requires legal authority but is done without it
• Male captus bene detentus: Wrongly captured, properly detained
  • A legal doctrine, according to which the fact that a person may have been wrongly or unfairly arrested, will not prejudice a rightful detention or trial under due process.
• Dolus specialis: Special intent
  • A secondary intent that leads to an elevation of a crime
• Ubi societas, ubi jus: Wherever there is society, there is law
  • Maxim stating that law may be found in all forms of stable political organization arising from social collaboration.
• Non liquet: The law is not clear
  • Any situation for which there is no applicable law
• Nemo judex in sua causa propria: No one is judge in their own case
  • One of the cardinal rules of natural justice that no one should act as a judge a case in which they have a personal (vested) interest
• Lis pendens: A suit pending
  • An official notice to the public that a lawsuit involving a claim on a property has been filed
• Res judicata: A matter judged
  • The principle that a cause of action may not be relitigated once it has been judged on the merits
• Aut dedere aut judicare: The obligation to extradite or prosecute
  • The legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition
• Erga omnes: In relation to everyone
  • Rights or obligations are owed toward all
• Male captus bene detentus: Roughly bad capture, good detention
  • An illegal arrest does not necessarily mean that a court cannot proceed against a person brought before them unlawfully.