Joint and several liability for the Halabja attack: Dutch businessman to pay compensation for delivery of mustard gas to Saddam Hussein

 Posted by: Nollkaemper André

On 24 April, the District Court of the Hague in the Netherlands ordered Frans van Anraat, a Dutch national, to pay compensation to 17 victims of chemical weapon attacks by the regime of Saddam Hussein in 1988. The judgment raises interesting questions from a shared responsibility perspective, as Van Anraat obviously only was one of many contributors to the eventual injuries.

The case was brought by 17 survivors of the 1988 attack on the Kurdish city of Halabja in Iraq, in which an estimated 5,600 civilians were killed. Saddam Hussein ordered the Halabja attack as part of a crackdown on a Kurdish rebellion in the north, during the final months of the war with Iraq.

In the 2007 judgment in the criminal trial, the Court had found that Van Anraat was Iraq’s sole supplier of a chemical substance used in the production of mustard gas. He had claimed that he believed the chemical was to be used in the Iraqi textile industry. The Court rejected that argument in the criminal trial, saying that he knew the chemicals might well be used for war crimes. Van Anraat is now serving a prison sentence in the Netherlands.

In the present judgment, the Court dealt with the separate question of liability. It found on the basis of the applicable law of Iraq that Van Anraat had acted wrongfully vis-à-vis the plaintiffs. It rejected, also on the basis of Iraqi law, the defense based on the statute of limitations, and ordered Van Anraat to pay each survivor €25,000.

The practical impact of the judgment may be limited, as Van Anraat is believed to be out of funds. But the holding that a person who contributed to international crimes is potentially not only criminally liable, but can also be sued for damages, may be an important precedent for future cases.

The facts of the case raise fascinating questions of shared responsibility. For whatever may be proven in terms of knowledge and conduct of Van Anraat, it is clear that there was a multiplicity of actors who contributed to, or committed, the attack in Halabja. These actors include the state of Iraq, Saddam Hussein himself, and other persons part of his regime. This argument that Van Anraat’s role was marginal compared to these others was indeed raised by the defense.

The Court rejected this, and found Van Anraat to be jointly and severally liable. It relied on an expert report by Haider Hamoudi (University of Pittsburgh). Hamoudi informed the Court that under Iraqi law, compensation for any intentional, wrongful act was due if three elements were established: fault, harm and a causal link between the fault and the harm. The key question for the Court concerned the third element, the causal link ‘in particular in cases where there are two or more potential wrongdoers who have caused the fault’. On this point, Hamoudi wrote that ‘the general rule is one of joint and several liability in the case of two or more causes of fault’, only subject to an exception when the causal link between fault and harm is broken because of the act of a third party. Hamoudi concluded on the facts that ‘Iraqi law would regard the defendant in this case jointly and severally responsible for damages owed to the Iraqi victims.’

The Court followed this analysis. In response to Van Anraat’s argument that he did not commit a wrong since it was not him who had produced the mustard gas, the Court held that Van Anraat knew, when delivering the chemicals to the Hussein regime, that the weapons would be produced and used. And, crucially, that his delivery was an essential part in the causal chain. That being so, the exception to the rule of joint and several liability (that is: the situation when the causal link as between fault and harm is broken because of the act of a third party) did not apply, and there was sufficient basis to hold Van Anraat liable.

The judgment raises many prospects and questions. What is the relationship between joint and several liability and the eventual determination of the amount of compensation? Would Van Anraat have, under Iraqi law, recourse to other wrongdoers (the state of Iraq?). And what impact would the award of damages may have in a (perhaps hypothetical) future case where other contributors are brought to court – whether at the international or national level. These questions call for further consideration. But as it is, the judgment is a fascinating example of the power of joint and several liability in cases of multiple wrongdoers.

Judge Giorgio Gaja on Shared Responsibility of EU

 Posted by: Boon Kristen

On 11 April, Judge Gaja gave a SHARES lecture entitled “The relations between the European Union and its member states from the perspective of the ILC Articles on Responsibility of International Organizations.” In his remarks, Judge Gaja discussed various aspects of the European Union’s relationship to the Articles, including its plea for special status, the implications of the EU’s forthcoming accession to the European Court of Human Rights, and the application of Articles 14 – 17 to international organizations generally.

Of particular note were his remarks on shared responsibility and the EU.  Under the Articles, the EU responsibility might arise if it breaches an international obligation by act or omission.  Judge Gaja used the Chile v. European Communities case based on dispute between Chile and Spanish fishermen fishing swordfish outside of the EEZ of Chile as an example of a situation where the EU might have been found responsible for failing to achieve a certain result, in this case the preservation of swordfish. Although the case settled, the EU has exclusive competence for the conservation of maritime resources and consequently there is little question it would have been responsible for any breach (see Hoffmeister’s article here).

Judge Gaja hypothesized that the EU might also have ancillary responsibility under international law if it fails to prevent a certain result, or is found to contribute to the harm. Using the example of genocide, and drawing on the ICJ’s decision in the Genocide case, he stated that if the EU has the capacity to prevent acts of genocide and does not, it could be internationally responsible. In other words, there is an ancillary duty to prevent in international law that may at times extend to international organizations.

Finally, Articles 14, 15 and 17 of the Articles on IO Responsibility establish situations under which IOs might be found responsible for aiding and assisting, directing and controlling, coercing, or circumventing obligations through IO decisions that bind members that would be internationally wrongful for the IO itself. Of particular note were Gaja’s observations that EU Mixed Agreements might create a basis for responsibility under Article 14.

The Question and Answer period focused on questions of lex specialis under Art. 64 of the Draft Articles. This provision states that the draft articles do not apply where special rules of international law apply.  Special rules can be derived from an organization’s founding treaty, decisions, resolutions and other acts of the treaty, and by practice. Audience members commented on the difficulty of ascertaining the scope of this provision, including the problematic case of determining which body of specialized law, between for example the EU and WTO would be more specialized. Moreover, the importance of practice, and the implications of the lex specialis provision for third states arose. Judge Gaja’s lecture will be published as a SHARES working paper in the near future.

The Sub-Regional Fisheries Commission Submits a Request for an Advisory Opinion to ITLOS

 Posted by: Plakokefalos Ilias

On 28 March 2013 the Sub-Regional Fisheries Commission (SRFC), an intergovernmental fisheries management organisation, submitted to the International Tribunal for the Law of the Sea (ITLOS) a request for an Advisory Opinion (see here). The SRFC comprises of seven states (Cape Verde, Guinea, Guinea-Bissau, Mauritania, Senegal, Sierra Leone and Gambia) and it covers an area that corresponds to theses states’ Exclusive Economic Zones (EEZ). The SRFC took this decision at its 14th Extraordinary Session, where it adopted a Resolution under article 22 of the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources Within the Maritime Areas under Jurisdiction of the Member States of the SRFC. The Resolution instructed the Permanent Secretary of the SRFC to refer four questions to the ITLOS:

1) What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2) To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3) Where a fishing licence is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4) What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?

IUU is rather extensive in West Africa. NGO and news reports have highlighted the problem of IUU (see here and here). In this context, the United States has also concluded agreements with SRFC states (Gambia, Senegal and Sierra Leone) seeking to be more actively involved in the suppression of illicit transnational activity off the coast of West Africa. These are ‘shipriders agreements’ designed to provide for co-operation between the parties in a number of activities and their scope covers IUU fishing activities.

At the same time, there have been a number of developments concerning fisheries off the coast of West Africa that may be contributing to the context of this request. The European Union (EU) recently concluded a number of Fisheries Partnership Agreements (FPA) in order to gain access to the waters off West Africa with states parties to the SRFC. In most cases it has subsequently renewed these agreements with additional protocols. The exceptions to this practice have been Guinea and Guinea Bissau. In the case of Guinea the EU repealed the provisionally applicable FPA due to Guinea’s government action to open fire against protesting crowds in 2009. In Guinea-Bissau’s case the EU did not set in force the protocol due to the military coup of April 2012. It has been pointed out that the presence of EU fishing vessels in the waters of West Africa and the FPAs have been rather problematic in a number of respects.[1] The Advisory Opinion could shed light to the relationship between the EU and the SRFC states regarding fisheries.

It is interesting to note that ITLOS Judge Tafsir Malick Ndiaye in a paper that discussed the problem of IUU fishing with an emphasis on West Africa, was hinting that a way to move towards a solution to the problems surrounding the area would be to request for an advisory opinion from the ITLOS.[2]

Given the great interest in fisheries in the area, the request for an Advisory Opinion is extremely timely. First, the question of the responsibility of the flag state in the EEZ needs to be explored. It is true that the LOSC provides for the obligation of the flag state to take measures so as to control the fishing vessels flying its flag in the high seas (arts. 62(4), 87(1), 117). A similar obligation in the EEZ may be inferred from the LOSC provisions that stress the coastal states sovereign rights in the EEZ and impose conservation obligations to those states(arts. 56 (1) (a), 56 (1) (b) (iii), 61, 62, 73). At the same time the LOSC provides that other states shall have due regard of the right and duties of the coastal state (art. 58). This obligation probably forms an adequate legal basis so as to engage the responsibility of the flag state. Besides that, and outside the LOSC framework, it is also true that the EU typically includes in its FPAs a provision to the effect that it undertakes to take all appropriate steps so that its vessels comply with the fisheries legislation of the other party. The obligations undertaken in the FPAs could also serve as legal basis for the responsibility of the flag state. Nevertheless, these obligations are framed in a rather general way and the phrasing employed is vague. Assuming that the ITLOS has jurisdiction over the case, it could seize the opportunity to clarify these obligations.

The ITLOS has also an opportunity to clarify the position of the EU as regards the vessels flying the flag of its member states. Especially with respect to fisheries (the EU has filed a declaration in the LOSC, to the effect that is has exclusive competence on fisheries) it would be illuminating to see how the Tribunal would tackle the issue of the obligations of international organizations and their member states and their possible responsibility for violations of these obligations.

Finally, it would be interesting to see how the Tribunal handles the opportunity to examine obligations of coastal states. If one takes into account the fact that fisheries in the EEZ are an exception to the compulsory dispute settlement provisions of the LOSC (art.297(3)), the opportunity seems even greater.

It is clear that the request presents a number of questions that are of great relevance to the concept of shared responsibility. The connection can be seen from three main perspectives. First, the violations of both flag and coastal states obligations to suppress IUU can be seen as a determining factor of the depletion of fish stocks. Second, the relationship between the EU and its member states also raises issues of shared responsibility vis-à-vis the coastal states and/or the SRFC. Third, the collective failure of the coastal states to sustainably regulate fisheries may also lead to shared responsibility. The way the primary obligations are defined will show the extent to which fisheries in the region will be perceived as what it really is: a shared endeavour and a shared problem.

The request for the Advisory Opinion may be based on a regional treaty but in its preamble it also invokes the UN Convention on the Law of the Sea as well as general international law. It seems that the tribunal will have to reply to the questions taking into account both the LOSC and general international law regarding fisheries. Overall, the request for an Advisory Opinion seems to give the ITLOS the chance to elaborate on a pressing and important issue: fisheries. So far the ITLOS only addressed fisheries issues indirectly (e.g. prompt release proceedings). Given the interest generated by the previous ITLOS Advisory Opinion on the obligations of sponsoring states in the Area, it is reasonable to expect that this will be the case with fisheries as well.

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[1] Willa Kalaidjian ‘Fishing for Solutions: The European Union’s Fisheries Partnership Agreements with West African Coastal States and the Call for Effective Regional Oversight in an Exploited Ocean (2010) 24 Emory International Law Review 389.

[2] Tafsir Malick Ndiaye ‘Illegal, Unregulated and Unreported Fishing: Responses in General and in West Africa’ (2011) 10 Chinese Journal of International Law 373, 395-6.

Shared responsibility after EU accession to the ECHR revisited

 Posted by: Lock Tobias

After almost three years of negotiations a final draft agreement on the accession of the EU to the European Convention on Human Rights has been published (here). I considered it therefore appropriate to revisit some of the criticisms I made on an earlier draft in this blog (here). In line with this blog’s remit, I shall again focus on the issue of shared responsibility and will in particular aim to explain the workings of the co-respondent mechanism, which is the agreement’s central innovation.

As explained in my previous post one of the key challenges for the negotiators of the accession agreement was to create, as required by Protocol 8 to the Lisbon Treaty, ‘the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’ The background to this is that it is chiefly the EU’s Member States which apply European Union law. Thus where a provision of EU law is (allegedly) in violation of the ECHR, a claimant will be confronted with an act by a Member State authority and will consequently seek remedies in the courts of that Member State. If these remedies are unsuccessful, the claimant can file an individual application with the European Court of Human Rights (ECtHR). The respondent in such a case would be the Member State. Yet the actual cause for the violation lies in EU law and can only be remedied at EU level (e.g. by amending the piece of legislation in violation of the ECHR). In my previous post I remarked that the solutions found in an earlier draft of the accession agreement were not entirely satisfactory for two reasons: 1) that there was no explicit exclusion of a defence raised by a Member State that it was not responsible for the violation as the violation was rooted in its obligations under EU law; 2) the voluntary character of the co-respondent mechanism. Both flaws have now been removed.

Article 1 (4) of the accession agreement provides that an act or omission of organs of a Member State shall be attributed to that Member State even where it implements EU law. This provision therefore expressly excludes the defence of not being responsible for a violation rooted in EU law. This provision already shows the way in which the accession agreement envisages the primary responsibility to be distributed between the EU and its Member States. The decisive question is which entity has acted vis-à-vis the applicant. If it was an EU institution (e.g. the European Commission fining a company in cartel proceedings) the EU is the correct respondent. If it was a Member State authority (e.g. the Home Secretary freezing the applicant’s assets) it is the Member State, no matter whether the legal basis for the Member State action was rooted in EU law or whether it was purely domestic in nature.

The co-respondent mechanism is designed to address the issue that in the case of the EU and its Member States attribution and responsibility may not coincide. Where the Member States acts because of an obligation under EU law, the act is attributed to the Member State, but in fact the EU may be truly responsible for the violation. In order to allow for the EU to be brought into the proceedings, the mechanism allows the EU to join them not only as a third party intervener, but as a co-respondent. This means that the EU will become a party to the proceedings alongside the Member State so that the judgment will be binding on the EU as well.[1] The precise conditions under which the co-respondent mechanism will be triggered are not exactly straightforward. For the situation in which a Member State is named as the main respondent, Art. 3 (2) of the draft accession agreement provides that:

Where an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.

This means that an applicant must claim that a provision of EU primary or secondary law or a decision by the EU institutions is in violation of the ECHR. In my previous blog post I criticised that the co-respondent mechanism as foreseen in the then available draft was voluntary. Thus the mechanism did not ensure that responsibility between the EU and the Member States in such cases is attributed correctly since there was no guarantee that the EU would actually join the proceedings. The draft agreement itself has not been amended in this respect. However, in Annex II to the draft agreement the European Union makes a declaration promising to ensure that it will request to become a co-respondent in cases where the above conditions are met. Thus while the draft agreement itself does not compel the EU to become a co-respondent, the Union has voluntarily agreed to become a co-respondent whenever this is possible. This is a more than welcome development ensuring an effective protection of the human rights contained in the Convention.

Interestingly, the Member States do not appear to have undertaken a similar obligation in the reverse case where the EU is the main respondent. In such a case the Member States may become co-respondents if the violation is rooted in primary EU law (i.e. the Treaties). This is because violations of the ECHR rooted in primary law can only be removed by way of a Treaty amendment, which all Member States must ratify. In such cases the co-respondent mechanism would only really make sense if all the Member States became co-respondents since the EU’s treaties can only be amended unanimously. It remains to be seen whether the Member States will undertake the same commitment as the Union. Given that Protocol 8 to the Lisbon Treaty obliges them to ensure that applications are correctly addressed, this would certainly be appropriate.

Finally it is worth mentioning that the draft agreement does not provide rules for the distribution of responsibility between the EU and the Member State(s) in case the Court finds a violation. Article 3 (7) merely states that they should be jointly responsible, but it also allows the Court to rule that only one of them should be responsible. If the Court finds the Union and the Member State(s) to be jointly responsible and awards damages to the applicant, the EU and its Member States will have to come to an agreement as to who will ultimately have to pay. This brings us to the next stage of the EU accession negotiations. Now that an agreement has been drafted, the EU will have to adopt internal rules. Apart from the question of who will have to pay, the internal rules will need to lay down the procedure for the involvement of the European Court of Justice (ECJ) in (some) co-respondent cases, address the representation of the Union before the ECtHR and many more details. Once the internal rules have been agreed, they together with the draft agreement will be presented to the ECJ for an Opinion as to their compatibility with the EU’s treaties. If the ECJ gives a green light, the ratification process can finally commence.

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[1] Art 3 (1) of the draft agreement.

The Surrender of Ntaganda to the ICC: A Story of Shared Responsibility Success

 Posted by: Irving Emma

While many have speculated as to why Ntaganda decided, after so many years, to hand himself in, what is interesting from the perspective of shared responsibility under international law is the ease with which he was transferred to the International Criminal Court (ICC). The situation was fraught with potential legal complications, given that it involved multiple international actors with the potential power to prevent the transfer. Despite this, Ntaganda was seamlessly handed over to the ICC within 5 days.

Bosco Ntaganda is a suspected warlord and key figure in the conflict in the eastern Democratic Republic of Congo (DRC). The ICC has issued two arrest warrants against him, one in 2006 and the other in 2012, for international crimes including rape, murder and the recruitment of child soldiers. The arrest warrants concern crimes committed in 2002-2003, however he has continued to be active in the region. More recently Ntanganda is thought to have headed the M23 rebel group, which took the DRC city of Goma last November.

On 18 March, Ntanganda walked into the US embassy in the Rwandan capital and handed himself in, requesting to be transferred to The Hague. However, neither of the parties directly involved in his surrender are party to the Rome Statute which established the ICC, and are therefore not obliged to cooperate with it. Despite this, within days there were ICC representatives in Rwanda to facilitate the transfer, and on 22 March Ntaganda arrived in The Hague.

The only legal provision which is designed to cover such situations is Article 87(5)(a) of the Rome Statute, which reads as follows:

The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

This article provides a flexible approach to cooperation between the ICC and non member States. It allows for anything from a formal agreement to an informal arrangement. Such flexibility is important given that a number of politically sensitive issues can arise. It is clear that some form of cooperation has taken place, given that an ICC delegation was sent to Rwanda to take part in the negotiations between the governments of the US, Rwanda and the Netherlands.

The willingness of the US to cooperate with the ICC is perhaps unsurprising. While originally hostile towards the Court, under Obama, the US administration has had a more positive approach. This is evident from the UN Security Council referrals of the Darfur and Libya situations to the ICC. Rwanda however is in a more complex position. Its cooperation with its ‘own’ international tribunal, the International Criminal Tribunal for Rwanda (ICTR), has been fractious. Furthermore, there are allegations that Rwanda is involved in the conflict in the eastern DRC, in particular backing the M23 rebels. As such Ntaganda may implicate Rwanda in his testimony before the Court.

It is not at this time known whether the cooperation between the parties involved in Ntaganda’s transfer to the ICC had a legal basis in the Rome Statute, or merely a political one. In this sense it is true that the situation is not a typical instance of shared responsibility, given that the actors involved do not owe a legal obligation to cooperate or to surrender Ntaganda to the ICC. However, it is an interesting instance of cooperation between multiple international entities. The absence of a strict formal framework may best cater for these types of shared responsibility (using this term loosely) situations, given the potential political difficulties: there may have been a formal agreement or an informal arrangement, both can be accommodated within Article 87(5)(a). What it clear is that cooperation in this instance of shared responsibility was successful, despite the US and Rwanda not being signatories of the Rome Statute.