The Raid on the Mavi Marmara – Can the ICC hear the case?

Yesterday, the Associated Press reported that the Union of Comoros (an island State in the Indian ocean between Madagascar and mainland Africa) has filed a “complaint” regarding the 2010 Israeli raid on a Turkish backed flotilla heading to Gaza with the International Criminal Court (ICC). The allegations specifically refer to the assault on the MV Mavi Marmara, a Turkish owned but Comoros flagged vessel, where nine protestors/aid-workers were killed during a confrontation with Israeli soldiers in international waters. The Prosecutor of the ICC, Mrs. Fatou Bensouda, has announced that her office will open a preliminary investigation into the events.[1]

Leaving technical issues aside (for example, States do not lodge “complaints” with the ICC but refer situations), this situation raises two very interesting questions related to the ICC: (1) does the Mavi Marmara incident fall within the jurisdiction of the ICC?; (2) would such a case be admissible? These questions are not easily answered. I will do my best here to succinctly set out the law and some preliminary conclusions.

Jurisdiction of the ICC

The first question that must be answered is whether the ICC can exercise jurisdiction over the “complaint” brought to the Court by Comoros. To figure this out we must first look to the law governing the proceedings at the ICC.

Articles 5, 12 and 13 of the Rome Statute of the International Criminal Court (Rome Statute) sets out the scope of the court’s jurisdiction. Read together, these articles permit jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression[2] where the crime took place on the territory of a State party or the perpetrator was a national of a State party. The Rome Statute also allows for jurisdiction absent these requirements where the situation was referred to the ICC by the United Nations Security Council. Importantly, the concept of territory specifically includes “the State of registration of [a] vessel or aircraft” where a crime is alleged to have taken place.

The Mavi Marmara at the time of the flotilla raid was in international waters and flagged as being from Comoros, who is a State part to the Rome Statute and therefore a part of the ICC. Article 12 of the Rome Statute clearly and unequivocally states that crimes occurring on a vessel fall within the jurisdiction of the court if the State of registration is a party to the Court. Comoros is a State party to the Rome Statute.

It appears that there is little doubt that the alleged crimes that took place on the Mavi Marmara fall within the jurisdiction of the ICC. However, just because a matter falls within the jurisdiction of the court does not mean that it will entertain the case.

Admissibility

The ICC is not a court that is designed to investigate all crimes of international relevance. Instead, it exists as a compliment to national justice systems and is only to prosecute cases where the national authorities have abdicated their right to do so, either through inaction, a design to shield the accused or waiver. Article 17 provides in relevant part,

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d)     The case is not of sufficient gravity to justify further action by the Court.

In essence, the existence of prior criminal process by a competent national tribunal prevents the ICC from exercising jurisdiction over a particular crime.

The ICC operates based on the active nationality principle (jurisdiction over nationals who commit crimes) and territory (jurisdiction over acts occurring within a State’s borders). These countries are Israel and Comoros, respectively. It is natural to look first to these States to inquire if there has been a previous or if there is an ongoing criminal action against the accused.

Israel conducted two different investigations into the Mavi Marmara incident, neither of which resulted in the recommendation of bringing criminal cases against those involved.[3] However, given the nature of the allegations and the long standing contentions about the legality of the Gaza blockade, the Israel action alone could be argued (and I by no means am saying that I would believe such an argument) that these investigations were designed to shield the accused and justify the military action. The investigations then would not be enough to render the situation inadmissible before the ICC as Israel would be considered “unwilling […] to carry out the investigation or prosecution ”.

Using the ICC basis of jurisdiction, this leaves the Union of Comoros, the State on whose territory the alleged crimes were committed. There is no public news of any such investigation.[4] All else being equal, an ICC investigation might make sense under these circumstances. However, there are other grounds upon which States can assert jurisdiction.

International law also permits States to assert jurisdiction over alleged crimes when the victim is a national of that State, or in some limited cases, under a universal jurisdiction theory. These cases will also serve as a bar to the ICC’s investigating and prosecuting a particular case as article 17 on refers to “State with jurisdiction” not the territorial and national States only.

The soldiers involved in the Mavi Marmara incident have been investigated in other States as well. Turkey has conducted an investigation and opened criminal cases against some of those involved.[5] South Africa has done the same.[6] Investigations in these States cannot be said as designed to shield the accused. The Prosecutor should immediately reject the “complaint” filed by Comoros as there have been national level investigations. The ICC does not exist to obtain a different result after prior process, but to take action when there has in effect been no prior process.

Conclusion

While the ICC would have jurisdiction over any alleged crimes falling within its mandate that occurred during the Mavi Marmara raid, those cases would be inadmissible due to prior actions at the State level.

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[1] All of this can be found in the AP article, here, http://m.apnews.com/ap/db_268743/contentdetail.htm?contentguid=UL7jgByH.

[2] It is worth noting that prosectutions for this last crime cannot yet be initiated.

[3] http://www.theisraelproject.org/site/apps/nlnet/content3.aspx?c=ewJXKcOUJlIaG&b=7717007&ct=11145441#.UZNCsYLbxCY

[4] This is not surprising. It would be quite absurd for a State to refer a situation after it had already tried to prosecute the offenders.

[5] http://www.crescent-online.net/2012/07/israeli-soldiers-involved-in-mavi-marmara-attack-to-be-tried-in-turkish-court-ahmet-aslan-3156-articles.html.

[6] http://mavi-marmara.ihh.org.tr/en/main/news/1/south-africa-launches-investigation-against-i/1528.

The Enrica Lexie Incident: Further Developments

This past week there have been some exceedingly interesting developments in the Enrica Lexie incident. India allowed the Italian guards to return to Italy in order to vote in the recent elections here, their second release to return to Italy since their arrest. The elections being over, the Italian government has since announced that the guards will not return to India as had been previously arranged. In response, India has threatened to arrest Italy’s ambassador.[1] This post will analyze whether India may legally arrest or detain Italy’s ambassador.

One thing should be made clear at the outset, the Italian ambassador signed a letter as part of the guarantee that the Italian guards would return to India after their release ended. We do not have a copy of this letter and for the purpose of analysis here, will assume it says nothing relevant.

International Law on Diplomatic Immunity

India has threatened to detain the Italian ambassador because of his country’s decision to not “re-extradite” the marine guards back to India after the expiration of their release to vote in the elections. As an ambassador, Italy’s representative benefits from certain rights and privileges under international law. Most of these rights are codified in the Vienna Convention on Diplomatic Relations of 1961. Article 29 reads,

The person of a diplomatic agent [including ambassadors] shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

The plain meaning of this article is that an ambassador, duly accredited, may not be detained in any manner. While the language appears to refer to formal arrest, preventing an agent from leaving a country is a form of detention. The only difference is the cage is much bigger.

Importantly, this immunity is not for the benefit of the diplomatic agent. It belongs to the sending State and may be expressly waived by the sending State.[2]

In case there was any doubt as to this interpretation, other parts of the treaty refer to the fact that a diplomatic agent’s immunity extends until such time as he or she leaves the country. Article 39 (2) reads,

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

In addition, there is also article 44 of the convention applying to armed conflicts, which reads,

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

It appears that they establish a right to immunity until such a time as the diplomatic agent leaves the receiving State, a right they have even in times of armed conflict. These articles establish the basic legal framework of diplomatic immunity under international law.

The Purpose of Diplomatic Immunity

The rule on diplomatic immunity applies to any criminal or civil action.[3] This means that a member a diplomat (or member of his household)[4] cannot be arrested and charged with a crime even if they commit if flagrantly on the territory of the receiving State.[5] This is an incredible shield that can lead to extreme injustice to the victim’s family.

Behind this rule is a fundamental necessity of the international system, the ability to create and maintain open communication channels. The ability to have a representative in a foreign country allows the sending State to bend the ear, as it were, of the local government. Ambassadors, being important representatives of a State, tend to be individuals of some importance. As such, these individuals might be tempting hostages or bargaining chips in the games of high politics. True, when a diplomatic agent commits a crime there may be an injustice. On the other hand, not ever charge against a diplomatic agent is necessarily true. Furthermore, it would not be unheard of for a State to invent charges against an ambassador to hold him or her hostage in an attempt to gain advantage over the sending State. The immunity is to prevent the receiving State from being able to leverage the sending State with threats to the ambassador.

To avoid these and related controversies the international community adopted the rule of ambassadorial immunity, which in any case, has existed since antiquity.

The Case of the Italian Ambassador

As noted at the beginning of this post, India has threatened to detain the Italian ambassador in response to Italy’s decision not to re-extradite the naval guards accused of killing two Indian fishermen. The question is whether or not India could have legal grounds to hold him. The answer is mostly likely not.

The Italian ambassador as a diplomatic agent benefits from the rule codified in the Vienna Convention that he “shall be inviolable. He shall not be liable to any form of arrest or detention”. Furthermore, as an ambassador, he has the right to leave and return to his home country, a right guaranteed in times of war and so seemingly guaranteed in times of peace where tensions would be much less.

Modern international law allows only one way around the immunity of a diplomatic agent: waiver by the State that is the beneficiary thereof.[6] In this case, where Italy is being accused of not honoring an international obligation, it is very unlikely – actually so close to impossible even talking about it seems foolhardy – that the ambassador’s immunity will be waived. As a simple consequence, any proceedings against him or attempts to prevent him from leaving India will be an internationally wrongful act for which India will be responsible.

There is an important caveat to this post. As noted at the beginning, the Italian ambassador signed some form or document when the guards were allowed to leave India. It is impossible to evaluate the situation without knowing exactly the contents of that document. An argument is making the rounds that it contained a waiver of immunity in this type of case. Under governing law any waiver must be “express”. It is possible, if unlikely, that such a waiver was made in the release guarantees.

All else being equal, India does not have the right to detain the Italian ambassador.

Countermeasure?

There is one final possibility that would “legalize” an action against the Italian ambassador. That is for India to claim that the ignoring of the ambassador’s immunity is a countermeasure for the violation of release agreement. This is an argument that needs to be explored in greater depth than the space provided here would allow.

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[1] http://www.repubblica.it/esteri/2013/03/14/news/india_ambasciatore_italiano-54522723/?ref=HREC1-1.

[2] Vienna Convention, article 32 (2).

[3] Vienna Convention, article 31.

[4] Vienna Convention, article 37.

[5] For example drunk driving and vehicular homicide. I am personally aware of such a case.

[6] There may also be the accusation of an international crime, however, this is far outside the scope of this brief blog post.

A Former Pope and the Issue of Immunity

Today at 8 p.m. Pope Benedict XVI will step down after announcing that he would be the first Pope in 600 years leave the papacy by a means other than natural expiration. This decision is history making in many ways and a momentous opportunity for the Church to remake itself. Unfortunately, there are those out there who have taken this opportunity to target the Church for their own purposes. One group in particular, albeit quite on the fringe, has called for the prosecution of the Pope Emeritus for his handling of, among other things, the sexual abuse scandal around the world, in particular Canada, as well as other alleged abuses committed by the Church over the last hundred years or so.

The prospect, no matter how far fetched, of criminal charges (or even a civil case) against a former pontiff is an excellent opportunity to discuss sovereign immunity and its application to acting and former heads of State. The Pope is head of State of the Vatican State after all, so the legal framework applied to State immunity is the proper one for considering the issue.[1]

The Law

The basic text on the issue of immunity, at least when referring to diplomatic agents, is the Vienna Convention on Diplomatic Relations of 1961. This is a good place to start our analysis even though heads of State are not strictly speaking diplomatic agents. Article 31 reads in pertinent part:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)         A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c)        An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

This provision clearly provides for the immunity from suit, including criminal charges, of the members of the diplomatic staff of a consular mission sent from one State to another. A similar rule governs in the case of United Nations Personnel. Sections 18 and 19 of the Convention on Privileges and Immunities of the United Nations of 1946 reads in pertinent part:

Officials of the United Nations shall :

(a)         be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; […]

In addition to the immunities and privileges specified in section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

Like the envoys of States, the envoys of the United Nations cannot be subject to legal process (as regulated by the particular regime of the treaty). This second treaty, however, highlights something that is not mentioned in the Vienna Convention, that the immunity comes in two guises. One is the prohibition on legal action against a person holding a diplomatic/UN office and the other is action against the person for their official acts: personal and functional immunity respectively. These rules also apply to high-ranking State officials such as the head of State.[2]

Article 18(a) makes explicit the otherwise general rule that a person working for a State or organization may not be held liable for their official acts that are attributable to that State or organization. The International Court of Justice in the Arrest Warrant case recognized this rule observing:

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.[3] (emphasis added)

The language makes clear that the “private” capacity means that official acts are outside the reach of other States’ jurisdiction. In other words, when a person leaves office he or she gives up their personal immunity but retain their functional immunity.

An exception exists for the rule regarding functional immunity once a person leaves office: the commission of international crimes subject to universal jurisdiction. This is not the place to enter into a detailed discussion of what crimes are “international”. It should be enough for present purposes to note that the crimes universally recognized as “international” are genocide, war crimes and crimes against humanity.[4]

The Charges

The charges leveled at Benedict are that he, as head of the Church, did not take sufficient care to protect children from abuse by members of the clergy. He is not accused of personally abusing any children or committing or being an accessory to any other abuse related crime. The charges are essentially that he did not do enough as Pope to prevent abuse or make reparations for harm allegedly caused by the Church. If he is to be liable to legal action it must be shown either that the alleged crimes were private acts by the Pontiff or that they amount to international crimes.

Private Acts

The first step in the analysis is to determine whether the alleged acts constituting crimes were taken by Pope Benedict XVI as part of his official duties, or rather, if they were private acts. It should be clear from the nature of the charges that the alleged criminal acts were not private in nature. Benedict is not accused of having personally harmed anyone, but rather of having been a poor leader thereby allowing harm.

Administration of a Sate or public organization is not a private act for which an individual enjoying functional immunity can be prosecuted. To hold otherwise would mean that functional immunity has no effect as any action taken in favor of the State or organization would be private. This is not to say that if there were proof of collusion between the administrator and the direct perpetrators of a crime that no action would lie, only that in the absence of such direct involvement functional immunity bars prosecution.

Therefore, as Pope Emeritus, Benedict will enjoy function immunity preventing legal action on allegations relating to his alleged mismanagement of the Church.

International Crimes

Does institutional child abuse amount to an international crime? The clear answer is no, it does not.

International crimes are those that threaten the international community as a whole and they are comprised of particular elements. Genocide requires the specific intent to destroy a group in whole or in part. War crimes require the existence of an armed conflict. Crimes against humanity require a widespread and systematic attack against a civilian population as such. The allegations, while serious and grave, do not fit these definitions.

What we have, instead, is individual instances (albeit a great number of them) of abuse spread around the world in a sporadic and unconnected manner. Many members of the clergy and hierarchy failed in their duties to protect innocent individuals, and they should be held to account for their actions. However, that does not mean that the crimes, no matter how horrible, are international crimes. This is not to say that the Church is not in any way responsible, only that the invocation of jurisdiction over an ex-Pontiff is not the proper and legal way to search for justice.

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[1] Some might say that the Pope gets immunity as the leader of the Church, a religious institution. This is not the case.

[2] Arrest Warrant Case, ¶ 51 (2002).

[3] Ibid., at ¶ 61.

[4] These crimes can be found in the statutes of the UN international criminal tribunals and the International Criminal Court.

India v. Italy: The Indian Supreme Court Decides

Massimiliano Latorre e Salvatore Girone, i due marò arrestati dalle autorità indiane

On January 18, 2013 the Supreme Court of the Union of India entered the fray of the Enrica Lexie incident by issuing a decision on the fate of the Italian military guards, Massimiliano Latorre and Slavatore Girone, who are accused of killing two Indian fishermen. This incident has been discussed at length on this blog. An overview of the facts and prior developements can be found by following the links here. The court, in clear terms, reaffirmed India’s jurisdiction over the alleged crimes based both on international and national laws. The court also made certain pronouncements regarding internal divisions of jurisdiction within India. My comments here will be limited to the international legal aspects of the decisions.

Italy challenged the jurisdiction of the Indian court on several grounds. The main thrust was that the guards could not be tried before the Indian courts because their actions were taken as part of their official military duties and therefore covered by sovereign immunity.[1] Italy also made arguments based on the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), principally that the flag State has exclusive jurisdiction over the events that take place aboard a vessel on the high seas.[2] Part of this second argument was an assertion that the Indian fishing boat was not “Indian” within the meaning of the convention and that article 97 gave exclusive jurisdiction to Italy.[3]

Attorneys for India responded by making arguments primarily based on national provisions extending the penal code to the areas adjacent to the territorial sea such as the international water where the incident took place.[4] The Union’s international law arguments included a detailed analysis of UNCLOS. India argued that article 97 UNCLOS was limited to collision type events and had no bearing on jurisdiction in the Enrica Lexie case.[5] This fact, along with the assimilation of ships to national territory and the objective territoriality principle, were sufficient to ground Indian jurisdiction.[6] India also argued that the passive personality principle would grant jurisdiction in this case.[7] On the issue of immunity, the Union pointed out that the State has a policy of not entering Status of Forces Agreements excluding national jurisdiction and that there was no basis for a sovereign immunity claim in a criminal case.[8]

The actual decision of the court was issued in a two-page order. The motivation or reasoning of the decision came in two opinions, one by the Chief Justice. These two opinions are not completely consonant even though they agree in the result. We will turn first to the Chief Justice’s views before analyzing those expressed in his fellow judge’s concurrence.

The Chief Justice identified two issues that needed to be resolved in the case: one national and one international. The international problem was that of Indian jurisdiction based on applicable law, including UNCLOS, which India was bound to follow.[9] The Chief Justice started by refuting the Italian argument based on article 97 of UNCLOS. After observing that there was no collision in this case the justice reasoned

The next question which arises is whether the incident of firing could be said to be an incident of navigation.  The context in which the expression has been used in Article 97 of the Convention seems to indicate that the same refers to an accident occurring in the course of navigation, of which collision between two vessels is the principal incident.  An incident of navigation as intended in the aforesaid Article, cannot, in my view, involve a criminal act in whatever circumstances. In what circumstances the incident occurred may be set up as a defence in a criminal action that may be taken, which legal position is accepted by both the countries which have initiated criminal proceedings against the two marines. Even the provisions of Article 100 of UNCLOS may be used for the same purpose. Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial.  If the defence advanced on behalf of the Petitioner Nos. 2 and 3 is accepted, then only will the provisions of Article 100 of the Convention become applicable to the facts of the case.[10]

Following the Lotus case, therefore, jurisdiction would be proper.[11] Next, the justice observed that States only have limited jurisdiction outside of the territorial sea that are limited by UNCLOS.[12] Unfortunately, this limit is not described and the Chief Justice asserts Indian jurisdiction over the incident based on this limited grant without further deliberation.[13]

Judge Chelameswar issued an opinion agreeing with the judgment but on different grounds. His views were almost entirely based on internal law. The important international component was his assertion that jurisdiction itself is based on “the legitimate interests” of the State asserting its authority.[14] He then used the passive personality and the objective territorial principles as evidence of this existing jurisdiction.[15] Either of which would therefore be sufficient to ground jurisdiction in this case.

I would like to begin my analysis by looking to the contentions surrounding article 97 UNCLOS. This provision reads in pertinent part,

In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

Italy argued that the shooting was an “incident of navigation” and so wholly within her jurisdiction.[16] Both opinions corrected concluded that article 97 was implemented with the limited scope of overturning the ruling in the Lotus case when it came to collisions and similar events on the high seas. It was not designed to undo the general principles of State jurisdiction. The problem with the justices’ analysis lies rather with the application of the passive personality principle.

Article 92 of UNCLOS provides,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

This is enough to preclude the application of the passive personality principle. If the nationality of the victim were enough, India would have had jurisdiction over the events if they had occurred entirely on board the Lexie. Such a result would render article 92’s provisions on exclusive jurisdiction without meaning. Such a reading should therefore be avoided. However, given the existence of other bases of jurisdiction, the justices’ overstatement of the application of the passive personality principle is not fatal to the international validity of the judgment.

The most unfortunate part of the Supreme Court’s judgment was its declining to fully address the issue of sovereign immunity for the Italian guards. The court rejected the argument but did so without an analysis of applicable international law. The court instead punted on the issue leaving it to be re-litigated based on the evidence in light of article 100 of UNCLOS. This last provision is nothing more than an obligation for the States party to co-operate in the fight against piracy. Presumably, this means that if the Italian guards were actually fighting piracy, article 100 UNCLOS would protect them from trial. This, however, would be a strange and unfortunate interpretation of a treaty provision that mentions neither jurisdiction nor immunity.

Most of the UNCLOS aspects of the Enrica Lexie incident appear to have been resolved by the Supreme Court of India. What remains now is a determination on the immunity of the guards and the facts of the case. It seems to me, that if the guards are determined to have been “fighting piracy” they will in fact be innocent of the crimes with which they are accused. At the same time, under the court’s probable reading of UNCLOS, this fact will grant them immunity. If they are instead found to have been acting outside of their mandate (for whatever reason) they will in fact be guilty of the crimes with which they are charged and not benefit from immunity. The Supreme Court would have done better to settle this issue once and for all and leave the trial to address the accusations alone.

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[1] Decision of the Supreme Court at ¶¶ 7, 13, 29, 42, 45.

[2] ¶ 26.

[3] ¶¶ 26, 29, 31, 38.

[4] ¶¶ 51-52, 55.

[5] ¶ 64.

[6] ¶¶ 60, 65.

[7] ¶ 63.

[8] ¶¶ 69-70.

[9] ¶ 97.

[10] ¶ 94.

[11] ¶ 95.

[12] ¶ 99.

[13] ¶ 100.

[14] ¶ 25 of the concurring opinion.

[15] ¶¶ 27-28.

[16] Decision of the Supreme Court at ¶¶ 26, 29.

Review of International Tribunal Decisions for the Beginning of 2013

After the start of the New Year we are back with a review of decisions from the different international tribunals. This week has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR).

International Criminal Law

ICTY

Prosecutor v. Popović et. al.[1]

Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero

Background

The accused Milan Gvero was convicted at trial of international crimes and sentenced to five years in prison, he was granted early release in 2010, after which he suffered a stroke.[2] Counsel filed a motion to discontinue the appellate proceedings arguing that because of his medical condition, Mr. Gvero could no longer meaningfully participate in the proceedings.[3] Medical reports were filed and examinations ordered and conducted.[4] The Appeals Chamber denied the motion.

Reasoning

The Chamber noted that an accused’s ability to participate on appeal was based on his “mental capacity to understand [the essential of the proceeding], and the mental and/or physical capacity to communicate, and thus consult, with his counsel.”[5] The Chamber weighed conflicting medical reports, but concluded that Mr. Gvero “has sufficiently recovered from his stroke to enable him to participate” and so the proceedings could proceed.[6]

ICC

Prosecutor v. Muthaura & Kenyatta[7]

Order Requesting Observations in Relation to the “Defence Application for Change of Place Where the Court Shall Sit for Trial”

The two defense teams filed applications requesting the Trial Chamber to conduct the trial either in the Republic of Kenya or in the Republic of Tanzania at the site of the ICTR.[8] These requests were rejected on procedural grounds that under Rule 100, the application needs to be sent to the Presidency.[9] The defense resubmitted its application to the Presidency, which in turn issued a decision requiring the Chamber to “establish” the views of the parties before making a recommendation on moving the trial.[10] In accordance with this order, and following Article 3 and Rule 100, the Chamber requested the Prosecutor, the defense and the legal representatives of the victims to make their views known on moving the trial to Kenya or Tanzania.[11]

Prosecutor v. Katanga

Decision on the Request for Suspensive Effect of the Appeal Against Trial Chamber II’s Decision on the Implementation of Regulation 55 of the Regulations of the Court

Background

The trial against Mr. Katanga was severed from that against Mr. Chui and also informed the parties that it would consider alternate forms of liability for the accused.[12] In December 2012, Mr. Katanga was granted leave to appeal the decision and rejected a request to extend the time limit to file his views on the consequences of the impugned decision until after judgment by the Appeals Chamber.[13] He renewed this request before the Appeals Chamber as part of the interlocutory appeal.[14] The Prosecution did not oppose the motion.[15] The Appeals Chamber ordered the stay.

Reasoning

The Appeals Chamber held, “that, in this appeal, which is directed against a decision that was rendered at the final stage of the trial proceedings, the need to preserve the integrity of the proceedings overrides any other consideration. In this regard, if the trial proceedings continued based on the Impugned Decision, and that decision were eventually reversed on appeal, any adverse effects on the overall faimess of the proceedings and the rights ofthe accused might be difficult to correct. Similarly, even if the Appeals Chamber were to confirm the Impugned Decision, the Appeals Chamber’s judgment may have a significant impact on the further conduct of the trial proceedings. Therefore, the Appeals Chamber finds that the Trial Chamber should not proceed with the trial on the basis of the Impugned Decision and decides that the appeal shall have suspensive effect.”[16]

Prosecutor v. Gaddafi & Al-Senussi[17]

Decision on the Defence for Abdullah Al-Senussi’s “Urgent Application pursuant to Regulation 35”

The Pre-Trial Chamber ordered Libya to file its observations on the Accused Al-Senussi’s request that they transfer him to the ICC on an expedited basis based on the defense indication that Libya intended to try him before a military court before the end of January 2013.[18]

International Human Rights Law

ECtHR

Agnelet v. France & Legillon v. France[19]

Chamber Judgment

Background

In both cases the applicants complained of a lack of reasoning in the assize court judgments by which they were convicted and sentenced to imprisonment.

Reasoning

The Court reiterated the conclusions it reached in the Taxquet v. Belgium case3, and in particular the fact that the absence of a reasoned verdict by a lay jury does not in itself constitute a breach of the accused’s right to a fair trial. Having examined both the bill of indictment and the questions put to the jury in each case, it found that Mr Legillon had had sufficient guarantees to enable him to understand the verdict by which he was convicted, but that Mr Agnelet had not.

Eweida and Others v. the United Kingdom[20]

Chamber Judgment

All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s desire to manifest her religious belief. On the other side of the scales was the employer’s wish to project a certain corporate image. While this aim was undoubtedly legitimate, the domestic courts accorded it too much weight.

As regards Ms Chaplin, the importance for her to be allowed to bear witness to her Christian faith by wearing her cross visibly at work weighed heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important than that which applied in respect of Ms Eweida and the hospital managers were well placed to make decisions about clinical safety.

In the cases of Ms Ladele and Mr McFarlane, it could not be said that national courts had failed to strike a fair balance when they upheld the employers’ decisions to bring disciplinary proceedings. In each case the employer was pursuing a policy of non- discrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention.

Sükran Aydin and Others v. Turkey[21]

Chamber Judgment

The case concerned the applicants’ complaint about a law, amended in 2010, which prohibited the use of any language other than Turkish during election campaigns. The Court held in particular that, while States had discretion to determine their linguistic policies and were entitled to regulate the use of languages during election campaigns, a blanket ban on the use of unofficial languages coupled with criminal sanctions were not compatible with freedom of expression.

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[1] IT-05-88-A, 16 January 2013.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶¶ 5-7.

[5] Ibid. at ¶ 21.

[6] Ibid. at ¶ 29.

[7] ICC-01/09-02/11, 17 January 2013.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶ 3.

[10] Ibid. at ¶¶ 4-5.

[11] Ibid. at ¶ 6.

[12] Ibid. at ¶ 1.

[13] Ibid. at ¶ 2.

[14] Ibid. at ¶ 3.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 9.

[17] ICC-01/11-01/11, 23 January 2013.

[18] Ibid. at ¶¶ 10-12

[19] Application numbers 61198/08 & 53406/10, 10 January 2013. All text is taken from the press release.

[20] Application numbers 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013. All text is taken from the press release.

[21] Application no. 49197/06, 22 January 2013. All text is taken from the press release.

The Republic of Catalunya

Since the end of last year there have been a series of street protests^[1] and digital petitions^[2] circulating online calling for the creation of an independent Catalan State to be carved out of the Kingdom of Spain. The new State would be comprised at a minimum of the current Spanish region of Cataluña centered around Barcelona. There are political, social and historical arguments both for and against such independence. There are also serious questions about the scope or scale of any such independence (territorially speaking), how such a decision would be made, who would be nationals of the new State and about whether such a new State should be allowed into the European Union. This first post on the question of Catalan independence will address the preliminary issue of whether there is a right for Cataluña to secede from Spain and form an independent State. The analysis here will be in the context of secession and not “self-determination” as this second term has found its greatest application in the colonial context, which this s not.

An Brief Overview of the History of Cataluña

International law on secession requires a look to the historical situation of a territory and its people. For this reason, it will be useful to provide a basic overview of Catalan history before delving into the details of the legal regulation of secession.

Cataluña has always had an identity distinct from that of the central Spanish authorities in Madrid. Spain has always been blessed (and cursed) with a great linguistic and cultural diversity. Two northern regions have local populations that speak indigenous Iberian languages other than Spanish (Castilian), which is the local language of the regions around Madrid. The area around Bilbao in the north forms part of the Basque country^[3] where the local language is one of the most unique in the world with no apparent relationship to any known language.^[4] Likewise, the language spoken n the northeastern region of Cataluña is distinct from Spanish. Unlike Basque, however, both Catalan and Spanish are Romance languages independently descended from Latin. After the fall of the western empire the regions around Madrid and Barcelona formed part of different kingdoms and followed their own distinct historical paths. Cataluña only became part of what would eventually be known as Spain, the Kingdom of Castile and Leon, in 1469 when the crowns of Castile and Aragon were united with the marriage of Isabella and Ferdinand, the Catholic Monarchs. Spain itself would not be “united” until 1492 with the conclusion of the “Reconquista” and the defeat of the last Moorish kingdom of Grenada.

The relationship between the central authorities in Madrid and the people of Cataluña has not always been smooth, but for much of ther history together, the two regions mostly tended to their own affairs. The relationship between Cataluña and Castile began to erode as early as the 1700’s (if not before) due to increased tension provoked by Madrid’s attempts to centralize authority and the intervention of other European powers. Several wars were fought as part of larger European conflicts and tensions remained through the Spanish Civil War. The situation remained strained during the regime of Francisco Franco. Franco’s nationalist regime included campaigns to “spanish-ize” the region and reduce the influence and use of the Catalan language.

Legal Framework

Secession in cases where the “mother” country does not consent to the territory’s separation, outside of the colonial context, is not a common occurrence. As a result there are very few international decisions on the subject and even fewer that likely carry substantial legal weight. There are two judicial decisions, one international and one national, that are generally referenced when analyzing the issue of non-colonial secession and independence. These are the Aaland Islands Case and the Quebec Case.

The Aaland Islands Case is notable for its context in that the territory in question wanted to secede from a newly formed State that had just itself seceded from another State, namely Finland from the Russian Empire. The question of Aaland separation from Finland was referred to a panel of experts by the League of Nations, the UN-type body formed after the end of the First World War. The Aaland islanders, a predominately Swedish speaking people, wanted to leave Finland and join the Kingdom of Sweden. The islands had been part of the Russian Empire and administratively part of its Finnish provinces. The argument went that if Finland could secede from Russia, why could they not secede from Finland?

The expert panel responded by saying that secession would be possible but only if two conditions are cumulatively satisfied. These conditions were, in broad strokes, that the territory in question was well defined and that its people were the victims of systematized discrimination. While the panel felt that the Finns had a defined territory and were subject to discrimination by the Russian authorities, there was no evidence of such treatment of the Aaland Islanders by the Finnish authorities. Furthermore, the islanders were permitted to use their own language and were given administrative autonomy. Under those circumstances the panel felt that secession would not be appropriate.

The Quebec Case, heard by the Supreme Court of Canada, dealt with the right of Quebec to secede from Canada. Quebec is of course the primarily French-speaking region of an otherwise Anglophone country. The region has a different linguistic and cultural history from the rest of Canada and from time to time there is a flair up in nationalistic sentiment and talk of secession to form an independent State. The Supreme Court in hearing the case adopted the criteria of the Aaland Islands Case that in order to secede a group must have a defined territorial unit and that they people must suffer from persecution by the central authorities from which they would like to separate.

However, the court added another consideration that was not present in the Aaland Islands Case, that of democracy. The Supreme Court considered that participatory democracy and the full inclusion of a people and the territory would act as a cure legally removing the right to secede. Essentially, by having full participatory rights, if the people of a territory did not like the way they were being governed they could remedy the problem by modifying government policy with their votes. To have a right to secession in a democracy it would have to be shown that for whatever reason the ballot box is an inadequate remedy.

There are more recent occurrences of territories seceding or at least attempting to secede from an already existing State. Most followed wars and involved political interests of the surrounding States who afforded the new entity recognition. Examples include Bangladesh and South Sudan. The extent and type of the violence involved in these cases make them very different from that of the Aaland islanders or the Québécois. As such, these situations are also very different from the case of Cataluña. One might also be tempted to refer to the case of Kosovo and the recent decision by the International Court of Justice on the legality of the Kosovar declaration of independence. However, the situation in the ex-Yugoslavia at the time was very different from the present situation in Spain. Furthermore, the decision did not reach the issue of Kosovar independence but only addressed the legality of a declaration of independence under international law.

Under current law, in order to have a legal right to secession, Cataluña would have to demonstrate that its people are subject to discrimination by the central authorities, that they posses a defined territory and that any of their problems cannot be addressed by the curative effects of democracy.

Independence?

It is not my goal here to enter into a debate about the nature of the historical relationship between Cataluña and the rest of Spain, nor to debate whether there has been discrimination against the Catalan by the central authorities in Madrid. More importantly, I do not mean to pronounce on whether any historical discrimination has continued into the 21^st century. I will assume for the sake of argument that such discrimination has taken place in sufficient amount to satisfy the standard set out by international law for this discussion, as I do not believe that the lack or presence of such discrimination is important.

The above discussion should make it clear, without too much discussion here, that Cataluña does not at present have a right to secede from Spain as far as international law is concerned. The territory is an administrative unit and it has a history of being separate within Spain. There is also the allegation that the central authorities have historically and continue to discriminate against the Catalan people. Whatever the truth to these statements, there is no one who argues that Spain is undemocratic to the extent of imposing the will of the central authorities on Cataluña without their input or ability to participate in the national political/policy decisions.

My question though is why does the existence of a democratic State mean that there is no right to secede? It is true that allowing territories to leave already established States on the will of a vote would lead to significant amounts of instability in the international community. But in a modern Europe that is ever more integrated across national frontiers, why not let them go their separate way and join the Union? In effect the changes would be more administrative than substantive. If the people of a territory with a distinct history and language wish to peacefully form their own State, the only reason not to let them quietly leave is adherence to an outdated view of State power. A compelling reason for disallowing such a separation is necessary where the State is at the service of the people and not the other way around.

We may in fact have such a situation here where other interests outweigh the right of a people to leave a State and form their own. Even though Europe is continuously moving toward a greater degree of integration, the system is not yet mature enough to cope with such a fundamental shift in its internal political boundaries and possibly continual shifts in national boundaries. The precedent would run the risk of setting off a cascade of secessions creating political and social instability accross the continent, the very thing the Union was designed to prevent. The international system, and the European one at that, are not stable enough to allow as a general rule anything but amicable separations. However, future events may change the situation.

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^[1] http://edition.cnn.com/2012/09/11/world/europe/spain-catalonia-protests/index.html

^[2] e.g., http://epetitions.direct.gov.uk/petitions/32321; http://elpais.com/elpais/2013/01/10/inenglish/1357847642_514841.html.

^[3] The Basque country also includes part of southwestern France.

^[4] http://www.britannica.com/EBchecked/topic/55366/Basque-language.

India v. Italy – A Decision by the Indian Supreme Court

The Indian Supreme Court today issued a decision confirming Indian jurisdiction over the two Italian guards caught up in the Enrica Lexie incident, something that has been talked about at length on this blog. The Court while reaffirming Indian jurisdiction, declared that the case should not be heard in the State of Kerala, the closest Indian state to the incident.

The exact motivation of the decision and an analysis of its content will come at a later date.