The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

Posted by:

Irving Emma

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.

 

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[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

Sharing Responsibility for UN Targeted Sanctions

 Posted by: Tzanakopoulos Antonios

Cross-posted on EJIL:Talk!

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as Kadi, Nada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice.

The UN Security Council has imposed obligations on member-states to implement asset freezes, travel bans, and arms embargoes on ‘listed’ individuals and legal entities ‘associated’ with the Taliban, Al-Qaida, and Osama bin Laden, by virtue of Resolution 1267 (1999). This sanctions regime, conveniently abbreviated until recently as the ‘1267 sanctions regime’, continues in force, even though it has now been split in two by Resolutions 1988 and 1989 (2011). The former resolution (and associated regime) refers to the Taliban and the latter refers to Al-Qaida. The differences between the two regimes focus primarily on the delisting procedure, which is significantly more advanced in the 1989 regime regarding Al-Qaida. In the remainder of this short contribution I will focus on this ‘1267/1989 sanctions regime’.

The targeted sanctions imposed by the 1267/1989 sanctions regime, both as they operated in the past and as they operate today, may be seen as being in violation of the right of access to a court and the right to an effective remedy of the targeted individuals and legal entities (hereinafter, when I refer to individuals this should be understood as encompassing legal entities as well) as this exists in customary international law (apart from its entrenchment in various instruments for the protection of human rights, notably the ICCPR, the ECHR, and the ACHR). Τhe sanctions regime has targeted individuals for a significant period of time (for some of them over a decade) and imposes significant restrictions on them, which may even be characterized as criminal in nature, in particular in view of their duration. Targeted individuals had no real recourse against these restrictions until Resolution 1904 (2009) introduced an ‘Office of the Ombudsperson’. This independent and impartial organ has been established to receive delisting requests from individuals, look into them, and make ‘recommendations’ to the competent Sanctions Committee of the Security Council regarding delisting. However, despite further enhancement of the delisting process in Resolution 1989 for the Al-Qaida regime, recourse remains limited, since in the final analysis delisting remains within the discretion of the Security Council.

We are dealing here with complex conduct, which involves both Security Council and member-state conduct. For its part, the Council sets up a sanctions regime and imposes an obligation on member-states to implement it. For their part, member-states comply with their obligations by implementing the regime against individuals found in any way within the reach of their jurisdiction. The outcome of this complex conduct is the denial of any effective avenue for challenge of restrictive measures on the part of targeted entities, and thus the violation of certain aspects of the right to a fair trial, a right under customary international law. This obligation to respect the right to a fair trial, which includes the right of access to a court and the right to an effective remedy, is incumbent on both the Security Council and the member-states, independently of any relevant (and overlapping) treaty obligations (of member-states only, in practice). This obligation is breached through conduct taken, prima facie, both by the Council and the member-states. How is responsibility for this internationally wrongful act to be shared between the United Nations and its member-states?

In order to answer this question we must untangle the complex conduct, and seek to attribute it to the various implicated entities. The conduct of the UN (through the Council) in setting up the regime and imposing obligations on member-states to implement it is normative in nature. Such normative conduct may itself constitute a breach of the obligation to respect the right to a fair trial: the keeping in force of normative acts in breach of international obligations may constitute an internationally wrongful act even if the normative act has not (yet) been implemented. But if not implemented, there is little chance of any real impact of the act in the ‘real’ world, and thus responsibility for it, while engaged, may remain theoretical. The normative act in our case, however, is implemented by the member-states through their organs, in compliance with their international obligations under Article 25 of the UN Charter. They take both normative and physical conduct in implementing the regime designed by the Council. Already at this point we can detect some ‘sharing’: the UN and the member-states must co-operate, act together, in order to create effects in the real world, that is in order to actually freeze accounts and ban travels, leaving those targeted with no real remedy.

The conduct of the Security Council in setting up the binding regime is attributable to the UN, because the Security Council is a UN organ. The conduct of member-states’ organs in implementing the regime is attributable in the first instance to their states, even though this conduct is strictly conditioned by the obligation imposed upon the states under Article 25 of the UN Charter to comply with binding Security Council decisions.

If we can establish that the normative conduct of the Council is enough to violate the UN’s obligation under customary law to respect the right to a fair trial, then there is little problem: the UN becomes responsible for that violation, while the member-states become responsible for the same violation by virtue of their own conduct in implementing. However, it may be argued that the normative conduct of the Council is not wrongful in and of itself. It is rather its implementation by the member-states that first breaches the international obligation to respect the right to a fair trial. But of course this member-state conduct is imposed by the Security Council. The question is then, how may the UN become responsible for conduct which is, in the first instance, attributable to the member-states (the implementation of the regime)?

There is no reason why the implementing conduct of member-states should not be concurrently attributable to the United Nations. This conduct is taken by member-states’ organs, but it is effectively controlled by means of a binding decision of the UN which imposes on these organs a strict obligation to achieve a given result (the freezing of the accounts of a named individual, among others). The member-state then is acting as an ‘agent’ of the UN (‘a person through whom the organisation acts’). However, the ILC Draft Articles on the Responsibility of International Organisations block this simple concurrent attribution (even though they do in principle admit the potential for concurrent attribution) by requiring, in cases where the alleged agent is an organ of a state, that the international organisation exercise effective factual control over that organ (ie not normative, but actual control on the ground along the lines of Nicaragua and Article 8 of the ILC Articles on the Responsibility of States). In any event, this still allows the UN to be held responsible for the wrongful act of the member-states through the provision on ‘circumvention’ (Article 17 DARIO). This is a problematic provision that does not reflect customary law. It also confuses primary with secondary norms, since it purports to allocate responsibility for the acts of member-states to the international organisation, when in reality what it does is to prohibit ‘circumvention’ of obligations by the international organisation (an act that remains wrongful even when the member-state acting in implementation of the binding decision of the organisation does not perpetrate an internationally wrongful act itself). But the bottom line is that both entities, international organisation and implementing member-states, will engage their international responsibility in the end.

Whether through the parallel perpetration of an internationally wrongful act by independent conduct, then, or through concurrent attribution of conduct, or even through derivative responsibility for the act of another, both UN and member-states are responsible for violating the right of access to a court and the right to an effective remedy. How can this responsibility be implemented in practice?

This is the point where we can see shared responsibility in action, and it’s all on account of significant practice on the part of domestic and regional international courts. Taking domestic courts first, in which I include the EU courts, these may not have jurisdiction over the UN, but they do have jurisdiction over domestic implementing measures of the member-states of the UN. Individuals targeted by the 1267/1989 regime have brought cases before these courts seeking to have the domestic implementing measures struck out or set aside. Here is how domestic and regional international courts have dealt with such claims:

I. If courts recognize that state conduct is conditioned by the UN-imposed obligation, they have difficulty holding the state responsible for the violation of the right to a fair trial, even if they do attribute the implementing act to the state. In doing this, they confirm concurrent, or ‘shared’, attribution of the conduct complained of, but then they either (i) accept that by reviewing the implementing act they must also review the UN act, and thus lapse into a very lax standard of review (see eg Kadi in the CFI, Nada in the Swiss Federal Tribunal); or (ii) they accept that they must incidentally review the act of the international organisation (as above) but then defer to allegedly equivalent protection at the level of the international organisation (Bosphorus in the ECtHR).

II. Neither of the two options above allows courts to properly review either the conduct of the UN, or the implementing conduct of the member-state. So eventually courts abandoned the approach under I. and started pretending that the state implementing conduct was not conditioned by the UN act. This radical disengagement of the two courses of conduct is of course wrong—to claim, as the ECJ did in Kadi, or the UK Supreme Court in Ahmed, or the ECtHR in Nada, that the 1267/1989 regime allows any margin of discretion in its implementation cannot withstand scrutiny. When the Council demands that a particular person must have her account frozen, the obligation is one of result. If the account is not frozen, then the obligation is violated, and so no margin of appreciation or discretion is allowed to the implementing state. And yet, domestic courts have quashed the implementing acts for violation of the right to a fair trial (as guaranteed under domestic law, which in substance coincides with the guarantee in international law). In effect, they can be seen as offering ‘juridical restitution’ (withdrawal of the offending normative act), which is but a method of implementing the international responsibility of the state for violation of the right to a fair trial. Even if it can be argued that such implementation is ‘internal’ to the state (through the action of its domestic courts), the decision of the ECtHR in Nada is a clear example where a state is held internationally responsible for not offering an effective remedy, even though it was internationally bound to act in the (wrongful) way that it did.

In this second set of cases, ‘sharing’ is not limited to attribution (as in the first set, where avoidance mechanisms kick in), but it is taken to its logical conclusion: a type of ‘shared’ responsibility. Here is how: the domestic court implements the responsibility of the state for the violation of the right to a fair trial by effecting ‘juridical restitution’ in striking down the domestic implementing measure. (Even better, the regional international court holds the state internationally responsible and requires that it effect juridical restitution and make compensation in favour of the beneficiary of the rule.) This is the state responsibility ‘part’. The state, however, is forced in this way to breach its obligation to comply with the Security Council decision. Aside from being able to justify this disobedience as a countermeasure, the state is in any event forced in practice to put pressure on the UN to reform the sanctions regime to have it comply with the right to a fair trial. This leads to the implementation of UN responsibility for the violation of the right, and constitutes the international organisation responsibility ‘part’ of the shared responsibility regime. Indeed, the model is not imaginary, but reflects what has happened in practice over the last years, even with the admission of the Security Council itself (which in Resolution 1904 recognises that the reform of the delisting regime is in response to continued legal challenges in member state courts). Responsibility then for the violation of aspects of the right to a fair trial (access to a court and right to an effective remedy) is shared in practice between the member-state and the UN. The member-state is forced by courts implementing its responsibility to implement itself the responsibility of the UN.

Update – The Dutch Courts and Asylum at the ICC: From Shared Obligations to Obligations of No One

 Posted by: Irving Emma

In October 2012, the SHARES Blog carried a post that discussed a September Dutch Court decision concerning the on-going asylum situation at the ICC. Since then there are have been two important developments: the matter has been taken to the European Court of Human Rights (ECtHR) and the original Dutch decision has been overturned on appeal.

First, one of the detained witnesses sought to challenge his detention by bringing a claim against the host State of the ICC before the European Court of Human Rights (ECtHR). However, the application in Longa v The Netherlands was declared inadmissible on the basis that The Netherlands had no jurisdiction under Article 1 of the European Convention on Human Rights. While acknowledging that jurisdiction is primarily linked to territory, the ECtHR drew on previous case law dealing with the ICTY to decide that the mere presence of the ICC on Dutch territory is not sufficient to engage Dutch jurisdiction. It went on to dismiss the arguments made that the level of human rights protection at the ICC is deficient, and then rejected the notion that by accepting jurisdiction to hear the asylum claims the Netherlands had also accepted jurisdiction under the Convention. The Court held that there was no obligation on member States of the ECHR to allow a person to await to outcome of an asylum claim on its territory.

Armed with the Longa decision, the Dutch authorities filed an appeal to the earlier Dutch Court decision that would have compelled The Netherlands to take over control of the witnesses. The Appeals Court overturned the first instance decision on 18 December 2012. In this decision, the Dutch Appeals Court denied the lower court’s assertion that the witnesses were in a dead end detention situation, which as it had no end in sight, had therefore become illegal. It was held that just because the asylum procedure was lengthy, did not mean it was unending. The Court held that in any case, it was not for it to consider whether there was a conflict between the detention and Articles 5 and 13 ECHR: as the ECtHR had said in Longa, the Netherlands lacked jurisdiction under Article 1.

Once the ECtHR handed down its opinion on the situation of the detained witnesses, The Netherlands was offered an easy way out of the compromising position which the judge of the first instance court had placed it in. The Dutch authorities were no longer compelled to take over the witnesses, and suffer the precedential and political consequences that would entail. However that does not remove the question of whether the Longa decision was indeed a good one. On closer inspection, one might wonder whether the precedent the ECtHR relied on was not easily distinguishable. Having read the arguments of the applicant, one is struck by the fact that the ECtHR seems to have overlooked a number of relevant facts which may have led it to a different conclusion.

It is to be regretted that an unconvincing decision of the ECtHR has left the witnesses detained at the ICC unprotected. The September Dutch Court decision arguably took the better approach to the legal questions raised by the situation. Now the most pertinent question is to whom can the witnesses turn to seek relief? Not to the ICC, nor the DRC, and now not to the Netherlands. The result is an example of where shared obligations result in obligations for no one.

The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?The ECtHR Finds Macedonia Responsible in Connection with Torture by the CIA, but on What Basis?

 Posted by: Nollkaemper André

Cross-posted from EJIL: Talk!

On 13 December 2012, the European Court of Human Rights (‘the Court’) found that the Former Yugoslav Republic of Macedonia (‘Macedonia’) was responsible in connection with the ill-treatment and torture of Khaled El-Masri. The judgment adds a further chapter to the Court’s rich case law on situations where a state party is held responsible in connection with the (wrongful) acts of another state.

El-Masri, a Lebanese-born German national, alleged that in the period from 31 December 2003 to 29 May 2004 he had been subjected to a secret rendition operation, in which agents of Macedonia had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who then transferred him to Afghanistan, where he had been detained and ill-treated for over four months.

No one who reads the facts of the case will argue with the Court’s conclusion that Macedonia had to bear international responsibility. The question is on what grounds one can base this conclusion.

The approach chosen by the Court may surprise many international lawyers. Influenced by decades of work of the International Law Commission (‘ILC’), their approach would be a combination of attribution of conduct on the one hand and the breach of an international obligation, on the other: Macedonia then would be responsible for handing over El-Masri to the CIA, in the face of risk (if not certainty) that he would be ill-treated and tortured. They would not normally say that the act of ill-treatment at the hands of the CIA itself is attributed to Macedonia, but limit Macedonia’s responsibility to its own wrongful conduct. This distinction may seem a legal nicety, but it may have practical relevance (for questions of evidence and reparation) and also reflects that what is essentially a sovereignty-based consideration: it should not easily be presumed that a state is responsible for acts committed by another subject of international law.

The Court takes a somewhat different approach. But it is quite difficult to figure out exactly what this approach is. While the fact that the Court does not feel compelled to follow the ILC’s conceptual straightjacket is in many respects refreshing, its own line is at times somewhat inconsistent and confusing. For one thing, it is difficult to see why the Court uses interchangeably the terms ‘attribution’ and ‘imputation’ – one may guess that the Court uses the latter when it seeks to leave aside the ILC’s approach, but it would be nice if the Court would not invite us to speculate.

A more substantive point is that, without clear rationale and justification, the Court intertwines the concepts of attribution of conduct and attribution of responsibility. For instance, the Court found that the responsibility of Macedonia was engaged with regard to the applicant’s transfer into the custody of the United States authorities and eventually his transfer to Afghanistan, despite the existence of a real risk that he would be subjected to further treatment contrary to Article 3 of the European Convention on Human Rights (‘ECHR’) (para. 223). This follows the Soering case law, and fits in traditional doctrine: Macedonia would only be  responsible under Article 3 for its own conduct and not for the torture in Afghanistan itself. But it is then hard to understand why the Court speaks in this context of attribution of responsibility (para. 215), rather than attribution of conduct.

Nonetheless, amidst all this confusion, an interesting thought emerges. In regard to two allegations, the Court concluded that Macedonia was not (only) responsible for the act of handing over El-Masri, but that it was responsible for conduct that clearly was not its own. Macedonia had handed over El-Masri to a CIA rendition team at Skopje Airport, where he was ill-treated before being sent off to Afghanistan. The Court found Macedonia ‘responsible for the ill-treatment to which the applicant was subjected at Skopje Airport by CIA agents’. And in respect to the detention in Kabul, once the CIA had flown EL-Masri there, it found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity in Kabul (para. 240), and imputed the detention (an act committed by the CIA) as such to Macedonia (see also para. 235).

This approach of making a state responsible for acts that are not its own may be explained by the scope and contents of the particular obligations of states under the ECHR. That is particularly clear for the events at Skopje airport. The Court could have approached this as a Soering type situation, and could have held Macedonia responsible for handing over a person to a foreign state in the face of a risk of torture. However, the difference was that the CIA mistreated El-Masri at the airport itself, and this was therefore not just a question of handing someone over in the face that he would be mistreated in another state. The Court thus had to take a different approach and stated in para. 206 that:

the acts complained of were carried out in the presence of officials of the respondent State and within its jurisdiction. Consequently, the respondent State must be regarded as responsible under the Convention for acts performed by foreign officials on its territory with the acquiescence or connivance of its authorities.

The Court’s finding that Macedonia was responsible under the Convention for the acts performed by foreign officials on its territory with the acquiescence, or connivance of its authorities, reminds us that there is a world outside the conceptual framework established by the ILC. The Court did not attempt to explain its approach in ‘ILC terms’ – none of the four Articles of the Articles on State Responsibility (‘ASR’) that the Court referred to (Arts. 7, 14, 15 or 16) is relevant in this context. Driven by the general obligation of states to protect rights of persons under their jurisdiction, the Court’s approach seems to be Macedonia is responsible for the wrongful act of handing over El-Masri and that because of its acquiescence or connivance, this responsibility extends to El-Masri’s ill-treatment by the CIA.

This approach follows the Human Rights Committee, which in a 2006 case against Sweden determined that ‘a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party’ (Mohammed Alzery v. Sweden, para. 11.6).

A striking aspect of the Court’s reasoning is that it equates the responsibility of a state vis-à-vis the conduct of another state (here the US), with the responsibility of a state vis-à-vis the acts of private persons. It refers, for instance to Ilascu v. Moldova and Russia, in which the Court said that ‘the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention’ (para. 318).

The Court’s equation of state responsibility vis-à-vis conduct of private actors on the one hand, and vis-à-vis foreign states on its territory, is logical from the perspective of the ECHR. Once the scope of states’ obligations to protect rights of persons within their jurisdiction was extended to obligations to secure, that third parties within their jurisdiction did not interfere with rights and freedoms of individuals, there is no compelling basis for distinguishing between private parties and states that acted within the territory of the state party.

The justification of the construction then lies in the combination of the (positive) obligations of states party under the Convention, and the fact that the conduct in question took place on its territory with its acquiescence or connivance, which in turn was incompatible with the positive obligations. The primary rules thus in a way incorporate questions that in the ILC texts are considered as freestanding secondary rules, just as the Court considers the question of facilitation of ill-treatment of El-Masri as a breach of positive obligations (e.g. para. 211), not in terms of a responsibility under Article 16 of the ILC Articles (even though the Court did list this as a relevant norm of international law).

Although all of this thus can be explained with the framework of the Convention, a reading of the judgment raises many questions concerning this approach. The statement that Macedonia was responsible under the Convention for acts performed by foreign officials on its territory is somewhat ambiguous. Since the Court did not go as far as attributing CIA conduct to Macedonia, this wording may be taken to suggest that Macedonia would be responsible without itself having committed a wrongful act. That of course is not what the Court intended to say, but a more solid explanation would help.

Somewhat mysterious is also that whereas Macedonia’s responsibility for handing over El-Masri to the CIA was based on the traditional Soering case law (Macedonia was responsible for the act of transferring El-Masri into the hands of the CIA in the face of risk of torture (para. 223), not for the torture in Kabul, just as in a Soering case, the extraditing state is not responsible for the death row or the death penalty that later occurs), it took a different line in regard to the responsibility of Macedonia for the illegal detention by the CIA of El-Masri in Kabul. Here the Court found Macedonia to be responsible for a violation of Article 5 during the entire period of his captivity (para. 240) and suggested that it imputed the detention (in the hands of the CIA) as such to Macedonia (see also para. 235).

This could be explained as extension of responsibility based on criteria of foreseeability and causation, but then it is not obvious why these factors were not applied in regard of the removal of the applicant to Kabul, where the Court only held Macedonia responsible for the removal, not for the torture in Kabul itself. All of this seems a connection of unfinished and not systemically developed thoughts.

Yet, in this midst of all this there is a thought that matters. For all its incoherence and lack of clarity, the Court’s language has a hint of normative power that the general law of responsibility lacks. The general law of responsibility by its conception of responsibility-based-on-wrongfulness, prefers determinations that one is responsible for the handing over of a person or for its inaction, not for the resulting torture itself.  In contrast, the Court’s approach may allow us to say that if a state hands over a person to another state in the knowledge that the person is tortured, and stands by when that torture happens, it bears responsibility for the torture itself.

The hint of a fresh approach to the law of responsibility deserves to be taken forward. There is no other international Court that has a similarly rich case-law on responsibility of states in connection to conduct of other states. It is about time that the Court starts clarifying the grounds of responsibility of states under the Convention, and in particular the grounds for extending such responsibility to acts that were committed by other states.

Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR

 Posted by: Lock Tobias

The negotiations on accession by the EU to the ECHR have recently entered their final stage. Representatives of the EU and of the forty-seven parties to the ECHR (the so-called Group 47+1, which has published the reports of its first and second meeting) are scheduled to meet twice this autumn to agree on a final accession agreement. It is likely that it will largely be based on the draft agreement on EU accession, which was made publicly available last year. Once final agreement has been reached, it is very likely that the Court of Justice of the EU (CJEU) will be asked for an Opinion on whether the agreement is compatible with the EU Treaties. Should the CJEU give the agreement a green light, the ratification process can begin.

This blog entry asks whether the co-respondent mechanism provided for in the draft agreement leads to a sensible allocation of responsibility between the EU and its Member States for violations of the Convention post-accession.[1] By introducing the co-respondent mechanism, the drafters aimed to resolve the problem that after accession both the EU and its Member States will be parties to the ECHR. Since it is mainly the EU’s Member States which implement obligations laid down in EU primary and secondary law, an applicant will usually hold the implementing Member State responsible in the European Court of Human Rights after having exhausted the domestic remedies in that Member State’s legal order. The problem is that the violation of human rights may not necessarily be the Member State’s fault as it may well have been contained in a provision of EU law. Thus even if the Member State is convicted in Strasbourg, it will be unable to remedy the violation since it lacks the competence under EU law to do so. In such cases it would therefore make sense to involve the EU in proceedings and thus to extend the binding reach of the judgment to it. The same is true in the reverse situation where the EU is held responsible for alleged violations contained in its primary law (mainly the EU’s Treaties). In such a case it would make sense to make the Member States join the proceedings as it is only they which can agree on a Treaty change.

As a solution to this problem, Article 3 of the draft accession agreement introduces the co-respondent mechanism. It provides that where a Member State is taken to the ECtHR and it appears that the alleged violation of the ECHR calls into question the compatibility with Convention rights of a provision of EU law, the EU may become co-respondent. The same is true in the reverse situation. Where the EU is respondent in proceedings before the ECHR and it appears that the allegation calls into question the compatibility with Convention rights of a provision of EU primary law, the Member States may become co-respondents.

The status of co-respondent will be unique in the ECHR legal order. Its main features are that the co-respondent becomes a party to the proceedings so that the judgment is also binding on it. The key difference to the status of an ordinary respondent is that the applicant does not need to exhaust the domestic remedies in the co-respondent’s legal order. Procedurally, it therefore reduces the burden for the applicant and is to be welcomed.

The main flaw of the mechanism, as laid down in the draft agreement, is that the co-respondent cannot be forced to join proceedings. Rather, the status is voluntary. This calls into question the main rationale behind the mechanism, which is the ‘correct’ attribution of responsibility between the EU and its Member States. From the perspective of EU law, this attribution cannot be undertaken by the European Court of Human Rights since it would violate the autonomy of European Union law if a court other than the EU’s Court of Justice made such an assessment (for details see here). The rationale for the voluntariness of the co-respondent status given in the explanatory report is that a party cannot be forced into proceedings where it was not named in the initial application. Yet this argument is based on a mere technicality and is hardly convincing. There is no reason why an applicant should not ask another party to join proceedings at a later stage provided that the procedural rights of that party are respected, especially regarding their right to be heard. In addition, the draft appears to contradict the rationale for the co-respondent mechanism. According to the explanatory report, the main reason for its introduction is to avoid gaps in the participation, accountability and enforceability in the Convention system. But a voluntary mechanism leads to exactly such gaps. The EU or a Member State may well decide to steer clear of proceedings even though they would be responsible for the alleged violation. The fact that the applicant can nominate both from the outset does not remedy this problem since it would force the applicant to exhaust domestic remedies in all legal orders concerned, which is not only costly but also time-consuming. It should especially be borne in mind that an applicant before the ECtHR does not need to be represented by a lawyer so that she may not even be remotely aware of these requirements. It follows that the current draft only achieves sub-optimal results regarding the efficiency of human rights protection for individuals.

This is coupled with the danger that a Member State raises the defence that it was not responsible for the violation as the violation was rooted in its obligations under EU law and it had no discretion. If such a defence were possible, neither the EU nor the Member State would be responsible in the ECtHR[2], which would defeat the whole purpose of EU accession. The draft and the explanatory report are silent regarding this possibility. It is important that the ECtHR would not accept such a defence. Otherwise, the human rights protection as regards EU law would risk being less effective than it is now. It is suggested that the draft presupposes that no such defence should be possible. It is therefore suggested that the responsibility in such situations should generally be joint. Neither the Member State nor the EU should have a possibility to escape it. This seems to have been recognised by the EU as it tabled an amendment to the draft accession agreement during the first meeting of Group 47+1, which states that acts of the EU’s organs remain attributable to the Member States even where they occur when the Member States are implementing their EU law obligations.[3]

It would therefore be welcome if the on-going negotiations on EU accession revisited this issue and came to a more convincing solution. The co-respondent mechanism is generally a good solution to balance the interest of the EU and its Member States in not allowing an external court to decide who was internally responsible with the interest of a potential victim of a human rights violation to get an effective remedy. But the co-respondent mechanism can only work if it leads to truly shared responsibility before the ECtHR. Otherwise, there is a risk of thwarting the overall aim of EU accession to the ECHR, which is the improvement of human rights protection in Europe.

For a more detailed version of the arguments made in this blog post see my forthcoming article “End of an epic? The draft agreement on the EU’s accession to the ECHR” in the Yearbook of European Law 2012. A pre-edited version of that article can be found here.

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[1] This blog post repeats part of the argument I made at my SHARES lecture on 4 October on EU accession to the ECHR and the co-respondent mechanism. It is limited to explaining the main rationale for the co-respondent mechanism and to criticising its voluntary character. Other issues of shared responsibility could not be addressed (e.g. the question of who should have to pay ‘just satisfaction’ where the co-respondent mechanism applies).

[2] This argument assumes that in most cases an applicant would not be able to bring a case against EU legislative acts directly against the EU since it would lack the status of a victim required by Article 34 ECHR.

[3] Meeting report 47+1(2012)R02, page 15.

From Shared Obligations to Individual Obligations: The Hague District Court and Asylum at the ICC

 Posted by: Irving Emma

On 27 September 2012, the District Court of The Hague handed down this important decision in an ongoing situation regarding three detained witnesses of the International Criminal Court (ICC) who have sought asylum in the Netherlands. The decision raises a number of fundamental issues concerning the relationship between ICC jurisdiction as opposed to the Netherlands jurisdiction, as well as important human rights issues.

The defence team in Prosecutor v Katanga sought the transfer of three detained witnesses being held in the Democratic Republic of Congo (DRC). Prior to being brought to the ICC, the three witnesses had been detained in the DRC on suspicion of killing United Nations peacekeepers. The transfer to the ICC was effected pursuant to Article 93(7) of the Rome Statute, which sets out the transfer procedure to be followed for detained witnesses, and involves and obligation on the ICC to return the witnesses to the DRC as soon as their testimony is complete.

Following their testimony before the ICC, the witnesses presented an asylum application to the Dutch immigration authorities on 12 May 2011. They claimed that because their testimony to the ICC implicated the incumbent DRC President, Joseph Kabila, on return to the DRC they would be subjected to persecution, inhumane or degrading treatment, and their fair trial rights would be violated. From the perspective of the SHARES project, this application raises interesting questions. Both the ICC and the Netherlands have human rights obligations towards the individual witnesses, which may include a prohibition on refoulement. However do these obligations have the same content? Does one prevail over the other, and if so how and why? The decision of the Hague District Court unfortunately answers few of these legal questions.

As far as the ICC is concerned, Trial Chamber II held in a decision of 24 August 2011 that assurances provided to it by the DRC, guaranteeing that certain protective measures would be put in place, enabled the witnesses to be safely returned. However, in a previous decision of the 9 June 2011, the Court held that it would not order the return of the witnesses while the asylum applications were pending, as this would compel the Netherlands to act contrary to its obligation to process an application for protection from refoulement. The ICC has sought to consult with the Netherlands in order to transfer the witnesses to the Dutch authorities, but to date these consultations have failed to yield result. The Netherlands maintains that it lacks jurisdiction to take the witnesses because they were transferred to the Dutch territory pursuant to an agreement between the ICC and the DRC.

The witnesses remain therefore, more than one year later, in detention at the ICC’s facility, raising the issue of their right to liberty. Under the Headquarters Agreement the ICC cannot release the witnesses into the Netherlands without the latter’s consent, but the Netherlands claimed it was not within their jurisdiction to take them. This situation of shared responsibility has therefore left the witnesses in a legal limbo.

This legal limbo may now be resolved, at least for practical purposes. On 12 September 2012 a hearing took place before The Hague District Court in which lawyers for the witnesses claimed the ongoing detention violated their right to liberty under Article 5 European Convention on Human Rights. Just over two weeks later a summary judgement was issued by the Hague District Court, which has brought the witnesses closer to being released.

In this decision, handed down on 27 September 2012, the District Court of The Hague ruled that the continued detention of the witnesses was unlawful. This followed from the fact that there was no prospect of release or trial within a reasonable period of time. The Court recognised that asylum applications might interfere with the system envisaged by international law (presumably the obligation on the ICC to return witnesses transferred pursuant to Article 93(7) Rome Statute), but stated that the state was simply bound to examine the request (para 3.7 of decision).

The Dutch Court rejected the Netherlands’ argument as to jurisdiction. It held that irrespective of whether the witnesses are under the jurisdiction of the Netherlands, they cannot be left in a detention situation which has no end in sight. The State was ordered to consult with the ICC and take over the witnesses within a period of four weeks. The Dutch Court stressed the importance of the asylum proceedings, given that the witnesses have access to no other remedy. In this way the Court distinguishes the European Court of Human Rights case of Galic (para 3.6). In that case it was held that human rights violations which might have occurred at the ICTY were not attributable to the Netherlands merely because the ICTY was on Dutch territory. The important distinction is that Galic had access to the procedural safeguards of the ICTY, whereas the witnesses in the current situation do not (para 3.5 and 3.7 of decision). The same distinguishing factor was present in another The Hague District Court decision in Milosevic v The Netherlands, in which the court ruled that matters relating to detention at the ICTY had been transferred to the ICTY and the Netherlands retained no jurisdiction over it.

The Dutch Court appears to be ruling that human rights concerns, in particular the right to a remedy, take precedence over the particularities set out in the Headquarters Agreement dealing with the distribution of jurisdiction between the ICC and the Netherlands. While this is surely a desirable result in many ways, one might wonder what the legal basis is for finding a hierarchy in international law, when such norms of hierarchy are extremely limited (namely, limited to jus cogens norms).

The Dutch Court was barred from reviewing the ICC’s assessment on whether it is safe to return the witnesses by, among others, Article 5 of the Headquarters Agreement. As a result, the Hague District Court has resorted to transforming what was a shared obligations situation, to an individual obligations case in which the Netherlands must perform its human rights obligations as if the ICC had no role. This approach is clear from the Dutch Court’s concern that no other remedy was available to the witnesses. A Dutch Court can, after all, only command the Dutch government. It is concerning however, that the lack of an international mechanism to mediate the issue has led to a single entity approach in a situation which is inherently one of shared obligations and responsibilities.

Europe’s torture watchdog on shared responsibility of Belgium and the Netherlands for Tilburg prison

 

Posted by:

Heijer Maarten den

Topics:

International Criminal Law, International Human Rights

Belgium has for many years been struggling with significant prison overcrowding. The Netherlands, on the other hand, has in recent years seen its prisons gradually emptying due to a decline in crime, forcing the Dutch government to close eight of its prisons. The two countries came up with the obvious solution, although one never adopted before in Europe: Belgium would rent an already staffed and equipped prison in the Netherlands. The location chosen was Tilburg prison, which is quite close to the border with Belgium.

The terms of the rent are set out in the Interstate Convention of 31 October 2009 (Dutch only), which entered into force on 1 February 2010. According to the agreement, Belgium will rent the prison for the sum of €30.000.000 per year for up to 500 detention places, with €212.917 more for every extra 50 places. With a maximum capacity of 681 places, of which 675 have now been filled, Tilburg Prison is in fact Belgium’s largest prison for sentenced prisoners. The Interstate Convention details a number of aspects of the relations between the two Contracting Parties, including matters such as the applicable law, the protection of privacy, and the Belgian director’s powers and general responsibilities.  It also covers the placement of prisoners within Tilburg Prison, arrangements for sentence enforcement, prisoners’ complaints and actions, medical care outside the prison, transport, escapes, deaths, and security.  Further, the Interstate Convention includes provisions on criminal matters and provisions relating to inviolability and immunities.

The agreement raised some issues for the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – the Council of Europe’s Anti-Torture watchdog – which regularly monitors prisons within the 47 Member States of the Council of Europe. Last week, the CPT published its report on the visit it brought to Tilburg prison in October 2011. The CPT explains its role in connection to this unprecedented form of cooperation as follows:

‘The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, of 1989, provides that “Each Party shall permit visits, in accordance with this Convention, to any place within its jurisdiction where persons are deprived of their liberty by a public authority” (Article 2). In application of the Interstate Convention, the Netherlands makes available the prison premises and the prison and medical staff and transfers the prisoners. Dutch criminal law is applicable within the prison. On the other hand, all the inmates present in the prison are serving final sentences imposed by Belgian courts, in pursuance of Belgian legislation, and the prison regime is Belgian. All the staff working in the prison are Dutch with the exception of the Prison Director, two Deputies and the staff from the Penitentiary Psychosocial Service. Taking account of the Interstate Convention, and particularly the aforementioned elements, there is clearly shared jurisdiction where Tilburg Prison is concerned. Consequently, the visit to this prison was notified to the Netherlands and Belgium in pursuance of Article 8, paragraph 1 of the Convention. Furthermore, the visit report has been forwarded to both States Parties, and it is for the authorities of these two States to reply, each in respect of the matters for which they are responsible.’

In effect, the CPT’s report reads like any other report it publishes, the only difference being that its recommendations are directed at two Contracting States instead of one. The CPT thus leaves any question of which party should follow up on which recommendations up to Belgium and the Netherlands to solve. Such issues should in the first place be answered on the basis of the treaty. Of practical importance is that the treaty provides that all complaints channels open to prisoners are directed to the Belgian prison authorities. But it is not unimaginable, especially in view of the fact that Dutch staff is responsible for the daily security and treatment of the prisoners, that the Netherlands would share in part of the obligations as well. The specific tasks and duties of Dutch staff are set out in a further (unpublished) cooperation agreement between the Belgian Directorate-General for Penitentiary Institutions and its Dutch counterpart. The Belgian Minister for Justice explained (Dutch only) to the Belgian parliament that in practice, ‘there would be a mixture of obligations that could fall under either Belgian or Dutch law’.

Fortunately, the report is quite positive about the treatment in Tilburg prison. Although the CPT notes some issues such as inter-prisoner violence and a lack of educational and cultural activities, the prisoners seem quite pleased about the treatment in the Netherlands, emphasising ‘the professional attitude and respect shown to them by the prison staff’ and making ‘particularly favourable comments about the difference in attitude – characterised by dialogue and constant contact – between the staff at Tilburg and those at other Belgian prisons’.

One issue which does bother the prisoners however, is the Dutch food. As in any Dutch prison, the main dish is delivered frozen, pre-packaged and uniform. In Belgium however, dishes cooked on the spot are the norm. The CPT delegation was told that up to 30% of the frozen food was deposited in the bin straight away. But the CPT was pleased to note that, being aware of the issue, the prison authorities have taken the initiative of installing small kitchens in the detention units where the prisoners can cook themselves.

‘Left to die’ boat reveals collective failure to rescue migrants at sea

 Posted by: Heijer Maarten den

This week, a committee of the Parliamentary Assembly of the Council of Europe released a draft resolution and report on the fateful voyage of what has been dubbed the ‘left to die’ boat – a story that was first picked up by The Guardian. The tragedy involved a boat carrying 72 Sub-Saharan migrants who fled from the conflict in Libya in March 2011, but ran into trouble and, despite a distress call by satellite from the ship’s Ghanaian “captain” to an Eritrean priest living in Italy who alerted the Rome Maritime Rescue Coordination Centre (Rome MRCC), eventually washed up on the shores of Libya 15 days later. By then, only 11 people were still alive.

The story was made all the more rueful because of testimonies from the survivors that, while adrift somewhere between the Italian island Lampedusa and Libya, they had made contact with several boats (commercial fishing vessels and allegedly an aircraft carrier belonging to France, which was however denied by France and NATO) and even a military helicopter which had lowered down bottles of water and biscuits into the vessel and then flew away, never to return – but their calls for help were all but ignored.

The report finds that pretty much everything went wrong: there was a failure of NATO, the United Nations and individual States in planning the Libyan military operations and preparing for an expected exodus by sea; a failure of the Italian and Maltese authorities in coordinating the rescue and launching a rescue operation; communication misunderstandings; a failure of NATO vessels in the vicinity and commercial fishing boats to follow up on repeated navigational distress warnings. In short, the report concludes: a collective failure.

Although the report was unable to verify all allegations and leaves many questions – especially the legal ones – unanswered, it vividly uncovers how all kinds of dynamics (war, migration) and the sharing of responsibilities between States and international organizations may result in no-one actually undertaking any action.

For me, this is the Council of Europe at its best. Although mainly known for housing the European Court of Human Rights – the Parliamentary Assembly, but also the Committee for the Prevention of Torture (CPT), have often engaged in fact finding activities that later turned out to have major political repercussions. Think, for example, of the frequent CPT’s visits to the imprisoned PKK-leader Öcalan on Imrali island and very recently its visit to the detained former Ukrainian prime-minister Yulia Tymoshenko (see also here and here). Think also of the persistent efforts of Swiss senator Dick Marty and member of the Parliamentary Assembly, to uncover the spider’s web of extraordinary renditions and secret CIA prisons in Europe after 9/11. His efforts eventually lead, some five years after his first report and despite earlier denials, to evidence that such prisons had indeed existed in Europe.

As to the present report’s legal implications, one might expect that it would at least re-open the debate on necessary amendments to the maritime SAR framework (after the 2004 overhaul of the Annex to the International Convention on Maritime Search and Rescue). Some specific points mentioned in the report concern the distribution of responsibilities for coordinating and undertaking rescue operations (one obvious issue was the responsibility vacuum for Libya’s SAR zone), the question of how to enforce duties of rescue on the part of private shipmasters, and the interpretation of what constitutes a vessel in distress (should not any unseaworthy and overcrowded vessel with barely any supplies, navigational equipment and an untrained captain be considered to be in distress, regardless of whether it is still running on its engines? – something which according to the report was disputed by the Rome MRCC).

And then there is the question of distribution of responsibilities between NATO and its Member States. In a letter to rapporteur Ms. Tineke Strik from the Netherlands, NATO explained that it had forwarded all emergency alerts to NATO task force units under its operational control. It further succinctly referred to information provided by the Spanish and Italian authorities that their vessels in the vicinity at the time had often engaged in rescue operations and that they were well aware of their relevant obligations under maritime law. It is at least disturbing to see how readily NATO command discharges itself of any responsibility – and fails to announce for example, that it will try to get to the bottom of things.

Perhaps more than anything, the whole episode signifies how European authorities and societies have learned to look away from the constant flow of migrants packed in makeshift vessels trying to make their way to Europe. The foremost challenge to be confronted then, is reminding ourselves that international legal standards apply equally to all those who embark upon such fateful journeys. This very notion was recently underscored by the European Court in the case of Hirsi v Italy.

From Nicaragua to R2P: Continuity and Change

 Posted by: Nollkaemper André

Cross posted on Opinio Juris

The ICJ’s decision in Nicaragua surely is one of its most cited judgments. It remains the leading authority on attribution of conduct of non-state actors and on (collective) self-defense. It also is a popular point of reference in analyses of the formation of customary law and on the jurisdiction of the Court. In his excellent The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Marcelo Kohen points out that the Judgment also is a relevant source for understanding the concept of responsibility to protect (R2P), even though that concept only came into existence some twenty years after the judgment.

Kohen rightly argues that R2P, by placing emphasis on collective security and discounting unilateral action, has been placed firmly in the footsteps of – and is fully consistent with – Nicaragua’s holdings on non-intervention, and that there is nothing in the concept of R2P ‘allowing for a reversal of the principle of non-intervention or otherwise allowing states to intervene without SC authorization.’ (at 163).

It is hard to expect otherwise. The application of the concept of R2P continues to give rise to controversies between states and other relevant actors. The small step forward that appeared to be brought by SC Res 1973 (2011) proved to be two substantial steps backward, following the overly broad interpretation that led NATO to overthrow Gadaffi. The absence of consensus on meaning, scope and implementation at the political level obviously means the lack of a basis for a change in the relevant principles of international law, notably those on protection of human rights, non-intervention and the use of force.

Nonetheless, as Julia Hoffmann and I argued in our recent book, rereading Nicaragua in the light of the wide variety of controversial issues surrounding R2P makes sense. On the one hand, the US had based its support for the contras in part on the fact that Nicaragua had committed violations of human rights (eg par. 267), the same rationale that underlies the aspirations of many who relied on R2P in the context of Libya or Syria. On the other hand, the main ambition of the US was not so much to protect human rights as to (support the) overthrow of the regime. This may not be a generally accepted aim of R2P doctrine, but it certainly can be part of the agenda of R2P supporters. The middle way that the Court had to find between the laudable ambitions to protect human rights on the one hand, and the no-go area of allowing a state to support the overthrow of a foreign regime, is potentially relevant to the R2P debate.

The main relevance of the judgment for R2P does not lie so much in the parts dealing with use of force – what R2P has to say on this is clear: nothing in R2P envisaged any change in the established rules on the use of force. Rather, the judgment is of interest for what it does (not) say on policy measures that seek change (or protection) in a foreign state, short of the use of force.

Kohen rightly points out that the Court’s key holdings on this point are of continuing relevance for R2P: even an argument based on the alleged need to protect human rights cannot justify interventionist policies, whether these are carried out by use of force or short of the use of force (such as funding the contras) (par. 268). If we consider the agenda of western states in regard to Libya and now Syria, in particular their aim to support insurgents, this is a message that bears repetition. The surge in attention for human rights protection since Nicaragua has not really changed the cardinal rule that such support may lead to a breach of the prohibition of intervention.

But this is about as far as Nicaragua goes. Beyond this, it hardly helps our understanding of the legality of policies that seek to protect civilians against repressive government that may qualify as international crimes (and thus trigger R2P). The key question is not so much whether intervention is or is not prohibited (clearly it is), but what does and what does not amount to intervention. Unsurprisingly given the facts that were before the Court, there is to be a wide gap between what the Court had to say in Nicaragua on the one hand, and the variety of policy questions that may be considered in applying the principle of R2P. Moreover, it is not in all respects clear that the sometimes strict wording of the Court has survived the passage of time.

In particular two fundamental questions stand out. One is what is and what is not covered by the prohibition of intervention. The other is how otherwise prohibited intervention may be justified by the nature of the acts to which R2P related policies respond.

As to the first question, the Court did not proceed much beyond the often quoted definition that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely… Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention’ (par. 205). One problem here is the term ‘free’. Surely it would not be contended that human rights policies are ‘free’ ones. Yet we cannot assume that the Court meant that in regard to such policies there can be no prohibited intervention (see below on the link with countermeasures).

Leaving this aside, the two most concrete clues that the Court provided as to what constitutes intervention, were that funding contras is not covered by use of force, but is covered by the prohibition of intervention (par. 228), and that economic sanctions are not covered by prohibited intervention (par. 245). Kohen provides a few other examples (at 161, another article of relevance can be found here), but the spectrum of policy measures that have been considered as part of R2P is very diverse. Does the prohibition of intervention prohibit the setting up of ‘safe zones along the Turkish-Syria and Jordan-Syria border with humanitarian corridors leading up to them’, as proposed by some European politicians? Does it prohibit support to NGOs who campaign for freedom? Does it prohibit humanitarian assistance, through local or transnational NGOs? On the latter question, the Court suggested that this would be allowed (par. 242), but added, by referring to the principles adopted by the Red Cross, that such assistance should make no discrimination as to political opinions. Yet, it would seem that humanitarian assistance in Libya was channeled primarily to victims among the insurgents, rather than to the wounded on the side of the government forces. We cannot really say that Nicaragua is of much help in distinguishing what is prohibited intervention and what is not. In this respect, a fresh look at recent state practice is likely to yield more clues than the Court provided.

The second question is what is the legal relevance of the fact that the conduct to which R2P-based policies respond, constitute wrongful acts (as far as the state is concerned) and international crimes (as far as individuals are concerned). The judgment is less than clear here. The Court suggested that human rights monitoring was a task of international institutions rather than states (par. 267), but then noted that ‘the use of force could not be the appropriate method to monitor or ensure such respect’ (par. 268), perhaps suggesting that measures short of the use of force could be justified. But it did not explore this in terms of counter-measures. This link between (non-)intervention and countermeasures was also hinted at in the already cited rather confusing sentence that ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.’ (par. 205) This cannot be right as a general proposition. Even if states are not permitted to decide freely, for instance by committing large scale human rights abuses, intervention surely still can be prohibited. But one way to make sense of it is by linking intervention to (collective) countermeasures. It then could be argued that if a state is no longer to decide freely on human rights protection, and would carry out policies that contravene the limits that international law set to that freedom, other states might be entitled to take countermeasures. The Court expressly confirmed the ban on armed countermeasures in this context (par. 211, par. 249) and otherwise suggested to embrace a ban on third-state countermeasures (par. 249). This latter position remains of course contentious (cf Art. 54 of the Articles on State Responsibility), but it is not necessarily clear here that the rather strict wording of the Court is in keeping with the practice of R2P related policies – and the response thereto.

In sum, while Kohen correctly observes that there is nothing in the concept of R2P that leads to a reversal of the principle of non-intervention, it also is true that the contents of (non-)intervention, as well as the exceptions that are based on prior crimes, was left ambiguous by the Court and that it is precisely in these two areas that R2P relevant practices (whether or not based on express reference to R2P) reduce the continued relevance of Nicaragua.