Monthly Archives: October 2012

No Civil Suit Against Paul Kagame

The United States Court of Appeals for the Tenth Circuit issued an opinion on 10 October 2012 dismissing a civil suit against Rwandan President Paul Kagame following a request to do so by the Executive Branch (i.e., the State Department). Plaintiffs filed suit based on the Alien Tort Claims Act and other laws alleging that Mr. Kagame ordered the assassination of Presidents Habyarimana and Ntaryamira of Rwanda and Burundi, respectively, thereby setting off years of violence in the region and, most notably, the Rwandan genocide. It was alleged that the assassination of the ethnic Hutu presidents was designed to provoke violence against the Tutsi minority and justify Kagame’s seizure of power in Rwanda.

The Court of Appeals affirmed the district court dismissal of the action by citing, among other things, US case law on sovereign immunity[1] and the Foreign Sovereign Immunities Act of 1976.[2] Essentially, the case law and statute amounted to a carte blanche for the executive to decide which individuals receive immunity and who do not based on their present status as a member of a foreign government.

Dismissing the suit against Kagame was with out a doubt the correct outcome in this case. Courts of one State do not have the authority to entertain a case against a sitting Head of State of another country. What is remarkable (in as much as it is not really remarkable at all) is that the Court of Appeals did not mention any of the fundamental international points of reference, such as the Arrest Warrant case or the recent judgment in Italy v. Germany both before the International Court of Justice. A foot note to either of these decisions would have been appropriate, especially given the fact that the US Executive’s position mirrors the present state of international law as elucidated by the ICJ.

[1] The principle citations were Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974); Samantar v. Yousuf, 130 S. Ct. 2278, 2285 (2010); Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945); Ex parte Republic of Peru, 318 U.S. 578, 589 (1943); Ye. V. Zemin, 383 F.3d 620, 626 (7th Cir. 2004).

[2] Codified in 28 U.S.C. §§ 1330, 1602-11.

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Review of International Tribunal Decisions for the weeks of October 15 & 23, 2012

This week’s review has decisions form the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). The range from the legality of the tribunals, protective measures to extradition.

International Criminal Law


Prosecutor v. Stanišić & Simoatović[1]

Decision on Serbia’s Requests for Provisional Protective Measures In Relation to Defence Documents


Serbia requested provisional protective measures for several documents in the possession of the defense.[2] Some of the documents were voluntarily provided by Serbia to the defense and some were Serbian documents independently acquitted by the Defense.[3] The Prosecution objected to the request for protective measures for the documents not provided by Serbia on the grounds that the State lacked standing to make the request.[4] The Chamber granted the request for provisional protective measures.


The Chamber noted that neither the rule nor the Appeals Chamber jurisprudence provided for, nor denied, the granting of protective measures for material not supplied by a State but otherwise originating from its official documents.[5] The Chamber then noted that the purpose for the relevant rule was to protect the national security interests of a State and thereby promote cooperation with the Tribunal.[6] However, such an order would apply on to use at the Tribunal and not to the source of material, which could do as it so pleases.[7] With these limits in mind, the Chamber granted the provisional protective measures.


Prosecutor v. Ayyash, Bareddine, Oneissi & Sabra[8]

Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”


The Defense challenged the legality of the Tribunal before the Trial Chamber and lost, this is the resulting appeal. The Appeals Chamber also rejected the Defense challenge.


The Appeals Chamber rejected the Defense challenge finding that the UN Security Council created the Tribunal and that such decisions were not reviewable by the Tribunal. This is because the decision was based on “a plethora of complex legal, political, and other considerations” for which no “meaningful standard of review” existed. Furthermore, the existence and means for dealing with a threat to international peace and security “lies in [the Security Council’s] discreation”.

International Human Rights Law


Makhmudzhan Ergashev v. Russia[9]

Chamber Judgment


The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national, who is an ethnic Uzbek, to Kyrgyzstan. The Court found a violation of the European Convention.


The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if extradited, in particular in view of the widespread use of torture against members of the Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was doubtful that the local authorities could be expected to abide by the central government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had erupted in 2010.

Smolorz v. Poland[10]

Chamber Judgment


The case concerned a journalist who published a highly critical article on the subject of communist-era architecture in the city of Katowice, Poland. He received a civil penalty for having damaged the good reputation of one of the architects named in the article. The Court found a violation of the applicant’s right to the freedom of expression


The Court held, in particular, that Mr Smolorz and his opponent were public figures who had been engaged in a public debate concerning an issue that could be described as “historical”. The Court found that the Polish courts had demonstrated rigidity and had given insufficient consideration to the context and nature of the disputed article. It also reiterated that the registers of sarcasm and irony were perfectly compatible with journalistic freedom of expression.

[1] IT-03-69-T, 19 October 2012.

[2] Ibid. at ¶¶ 1, 5.

[3] Ibid. at ¶¶ 2-4.

[4] Ibid. at ¶¶ 2, 4.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid. at ¶ 15.

[7] Ibid. at ¶ 16.

[8] STL-11-01/PT/AC/AR90.1, 24 October 2012. These notes are taken from the Headnote of the decision, a more detailed discussion will follow at a later date.

[9] Application no. 49747/11, 16 October 2012. All text is taken from the press release.

[10] Application no.17446/07, 16 October 2012. All text is taken from the press release.

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Reply to Comments on Syria Part 2

There have been a few comments on our last post on Syria dealing with the possibility of intervention based on an assertion of self-defense by Turkey. I thought it might be best to address them together in a separate post.

The first issue that came up was the possibility that the international community could intervene if Syria were to be suspended or expelled from the United Nations. The underlying legal assertion being that the prohibition on the use of force contained in the UN Charter is a contractual obligation flowing only between the States party/member of the United Nations. The wording of Article 2(4) of the Charter would seem to indicate otherwise. It reads,

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

Members agree not to use force in their international relations, full stop. It does not provide, as argued, that this prohibition applies against only other members of the UN. In any case, it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law (See, Antonio Cassese, Diritto Internazionale, Bologna 2005). Member or not of the United Nations, Syria benefits from the prohibition on the use of force absent United Nations Security Council authorization.

A second point raised what that the events in Syria amount to genocide and crimes against humanity and therefore the ICC is competent to act. This is undoubtedly true; a UN report has classified the events in Syria in these terms. However, this fact alone does not found jurisdiction for the ICC, which is instead governed by Articles 12 and 13 of the Rome Statute. These articles set out that there is jurisdiction only in cases where the territorial State (where the crimes took place) or the State of which the accused is a national have accepted the competence of the Court or when the United Nations Security Council has referred the given situation to the Court. None of these circumstances exists in the case of the ongoing events in Syria. Ergo, the ICC does not have jurisdiction to act regarding alleged crimes in that country.

The last legal point raised was the alleged consensus of the United Nations Security Council regarding action in Syria. The view noted that neither Russia nor China shared this view and had prevented any formal adoption on intervention. The view appears to be that if the majority of the Security Council is in favor of action then this is tantamount to authorization by the Council. This is however in error. The Security Council cannot act without the affirmative votes or abstention of all five permanent members of the Council, including Russia and China. This is the so-called “veto power”. For better or for worse, all permanent members must agree (or abstain) to avoid deadlock.

Finally, a moral obligation to act in the face of allegations of international crimes was raised. I will abstain from this argument as it is extra-legal and raises many issues (worthy of discussion) that are outside the scope of the original post.

Thank you very much for the comments; they were very thoughtful and insightful.


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Would Intervention in Syria Violate International Law? : Part 2

Civil war continues to envelope Syria as international attempts to resolve the situation continually fail.[1] Some weeks back I addressed the legality of any intervention in Syria and concluded that no such action would be legal. My analysis was limited to the application of the oft-cited doctrine of the Responsibility to Protect. Now, however, there is a new factor in play that could change the equation on intervention.

Ever since the beginning of the Syrian conflict, tensions have been growing between the Assad regime and its northern neighbor Turkey. Recently the tensions have lead to reprisal by Turkey for shells landing on her territory from Syria.[2] The Turkish Chief of Staff even said that future responses would be “even stronger” to any future shelling incidents.[3] Should an armed conflict develop between the two countries it is likely that Turkey will be viewed by the international community as the victim and so entitled to respond.[4] If this were to happen, the door would be open to multi-lateral intervention in Syria under the rubric of collective self-defense.[5] The question would therefore be what the legal scope of any such action would be. The legal framework on the use of force will shed some light on this issue.

The legal discipline of ius ad bellum or the recourse to armed force is currently governed by article 2(4) of the United Nations Charter. It reads in pertinent part,

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This of course leaves open the possibility of self-defense as it is contained in article 51 of the Charter, which reads,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence (sic) if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence (sic) shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The resulting discipline is triggered by an “armed attack”, without which there can be no legal recourse to self-defense.[6] Some argue, and not without good reason, that an immanent attack is sufficient to trigger a targeted State’s right to self-defense and that there is no need to wait until the violence of an armed attack is actually unleashed.[7] In any case, the situation on the Syria-Turkey border and it currently escalating violence seem to remove any need to rely on such a doctrine.

Another cornerstone of the doctrine of self-defense is that any action must be proportionate to the threat that it is meant to shield against. It must also be done out of necessity and designed to put an end to the threat, not as a form of punishment for the attack. What then would be the proportional response given the current situation? History provides good reason to believe that only limited action would be appropriate and that it would have to fall short of regime change.

One useful example is the 1967 Arab-Israeli War which provides an example of the limits of self-defense when it comes to intervention in surrounding hostile States. Israel (after launching an anticipatory attack) took control of the West Bank from Jordan, the Sinai Peninsula from Egypt and the Golan Heights from Syria. There was no attempt (likely would have been futile anyway) to take over or overthrow the governments of the attacking parties.[8] Again here, the response was limited to securing territory to make sure the enemy could not launch new attacks. It is not my intention to enter into the merits of the war, but only to point out the limit of the response.

Another example is the 1991 Gulf War in response to the Iraqi invasion and occupation of Kuwait. The United States and her allies (who took action on the UN mandate)[9] did not take over the country and overthrow the regime. This was in part because the collective action had achieved its stated goals by expelling the invaders and creating the conditions (such as a no-fly zone) to prevent a reoccurrence of the violence.[10] There was no need to take over the country. If a response by the international community to a complete invasion fell short of regime change, in part because such a response would be disproportionate, then such a response to border clashes would also seem to be inappropriate. This would bring us to the conclusion that any defensive action taken by Turkey (and her allies) would therefore be limited to ensuring the protection the border areas.

The normative picture is not so clear however. The American invasion of Afghanistan (and the eventual overthrow of the Taliban regime) was in part justified based on the right to self-defense.[11] If such an action were acceptable it would then be arguable that a more robust reaction to Syrian border incursions could be justified as self-defense. One argument could be that a greater involvement in the conflict is the only way to ensure that the attacks do not continue without unnecessarily prolonging the conflict.

Right now the international community is playing a dangerous game of chicken with the Syrian Civil War. On one hand there are States that do not want to see another intervention and regime change as happened in Libya. On the other hand there are States that are just looking for an excuse either to flex some muscle or push forward the Arab Spring. Unfortunately, innocent people are caught in the middle of this high stakes political struggle. Self-defense may be a mechanism to put an end to this continuing conflict. Something needs to be done, and as has been acknowledged, the current attempt to calm the situation is failing miserably.

[1] The former envoy, Kofi Annan, called his mediation efforts “Mission: Impossible”. See, Rick Gladstone, Veteran Algerian Statesman to Succeed Annan as Special Syrian Envoy, NYT, 17 August 2012.

[3] Ibid.

[4] Of course, it is likely that any action by Turkey will be seen as illegitimate by those countries that support the Assad regime or at least are against any intervention in this as-to-now internal conflict.

[5] Turkey is a member of the North Atlantic Treaty Organization (NATO). Per the North Atlantic Treaty, an attack on any single member is an attack on all members necessitating collective action in self-defense. See, Article 5 (“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence (sic) recognised (sic) by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”)

[6] On this point see, Natalino Ronzitti, Diritto internazionale dei conflitti armati, p. 38 (Torino 2001), citing, ICJ, Nicaragua v. United States, 1986 Reports 103.

[7] This is often based on the “Caroline Affair” and the resulting doctrine of preemptory self-defense. The incident arose out of the British destruction of an American ship in New York State that was being used to supply rebels in British Canada. See, Moore, A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, at pp. 409-410 (1906). Others point to the 1967 Arab-Israeli War and the preemptive strike of Israeli forces against the Egyptian air force. On the extreme, some make mention of the 2003 invasion of Iraq as preventative self-defense.

[8] As noted, Israel attacked first, however this is generally understood as an example of anticipatory self-defense al a Caroline.

[9] UN Security Council Resolution 678 (1990).

[11] Admittedly, this argument has been criticized. See i.e., Jonathan I. Charney, The Use of Force Against Terrorism and International Law, 95 A.J.I.L. 835 (2001)


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Hamdan’s Conviction Overturned

The US Circuit Court of Appeals for the DC Circuit overturned the conviction of Osama bin-Laden’s driver, Salim Hamdan, on Friday. The court essentially held that Congress did not have the power to retroactively create the crime of providing material support to terrorism. More on this to come, but I thought it worthwhile to spread the news about this important decision.

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Review of International Tribunal Decisions for the week of October 8, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR).

International Criminal Law


Prosecutor v. Karadžić[1]

Decision (Registry)

The Registrar determined the Accused must contribute a certain sum to his defense costs based in part on the value of his family home (as joint property under the laws of the Republika Srpska) and by policy all property owned by spouses (his wife is the co-owner of a business, including its property value) including pensions and his other property in the former Yugoslavia and his UNDU bank account. All of this is considered “means” within the legal aid system.


Jean-Baptiste Gatete v. The Prosecutor[2]

Appeals Judgment

The Appeals Chamber affirmed Gatete’s convictions and granted, Judge Pocar partially dissenting and Judge Agius dissenting, the Prosecution’s ground of appeal on the failure to enter a conviction for conspiracy to commit genocide. The Appeals Chamber entered, Judges Pocar and Agius dissenting, a conviction for conspiracy to commit genocide.

The Appeals Chamber reduced Gatete’s sentence to 40 years of imprisonment as a remedy for the violation of his right to be tried without undue delay. He is to remain in the United Nations Detention Facility in Arusha, Tanzania, pending his transfer to the country in which he will serve his sentence.


Case No. 002

On 8 October 2012 the Trial Chamber issued a memorandum informing the “parties and the public” of its decision to expand the scope of the trial to include three new locations.[3] However, the scope was not expanded to include all crimes requested by the prosecution, mostly due to issues of prolonging the trial.[4] The Chamber also requested that the parties submit their final views on the law before the close of evidence in order to help move the trial process along.[5]


Prosecutor v. Gbagbo[6]


On 15 August 2012, the Single Judge granted the OPCV leave to file legal observations only on the Accused’s fitness to stand trial.[7] The Accused filed for leave to appeal that decision.[8] The request was denied.


The Chamber noted that Article 82(1)(d) requires a decision to involve an issue that would significantly affect the fairness or outcome nature of the trial and that an immediate resolution by the Appeals Chamber would materially advance the proceedings.[9] The Single Judge noted that issue is limited to determining if the individual victims’ interests would be affected by a decision on delaying the proceedings.[10] This is not, as the accused states, an issue of their interest in his fitness to stand trial.[11] As the Accused failed to identify an appealable issue, the request was dismissed.[12]

International Human Rights Law


Abdelali v. France[13]

Chamber Judgment


The case concerned the objection lodged by Mr. Abdelali against his conviction in his absence and sentencing to six years’ imprisonment for drug trafficking. The French courts had refused to allow him to raise a plea of nullity, holding that he had been on the run when the investigation was concluded. The Court found a violation.


The Court found that allowing the applicant to bring objection proceedings so that he could be tried again in person, without however authorising him to raise any plea of nullity was insufficient, disproportionate and robbed the concept of a fair trial of its essence. The Court held that the mere fact that the applicant had been absent from his home or that of his parents was not sufficient to consider that he had been aware of the proceedings against him and was “absconding”.

Alkaya v. Turkey[14]

Chamber Judgment


The applicant, Ms Yasemin Alkaya, is well known in Turkey as a cinema and theatre actress. On the morning of 12 October 2002 her home was broken into while she was there. She alerted the police and lodged a complaint. On 15 October 2002 the daily newspaper Akşam published an article on the break-in, accompanied by a photograph of the applicant and giving her exact address. She filed suit for invasion of privacy and lost. The ECtHR found a violation.


The Court held that the choice of one’s place of residence was an essentially private matter and that the free exercise of that choice formed an integral part of the sphere of personal autonomy protected by Article 8. A person’s home address constituted personal data or information which fell within the scope of private life and as such was eligible for the protection granted to the latter.

[1] IT-95-5/18-T, 11 October 2012.

[2] Text is from the press release

[3] Memorandum at ¶ 1.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 4.

[6] ICC-02/11-01/11, 11 October 2012.

[7] Ibid. at ¶ 6.

[8] Ibid. at ¶ 7.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 16.

[11] Ibid. at ¶ 18.

[12] Ibid at ¶ 19.

[13] Applciation No. 43353/07, 11 October 2012. Text is taken from the press release.

[14] Application no. 42811/06, 9 October 2012. All text is taken from the press release.

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Review of International Tribunal Decisions for the week of October 1, 2012

This week’s review of decisions has contributions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC).

International Criminal Law


Prosecutor v. Karadžić[1]

Order in Relation to Accused’s Notice of Request of Protective Measures for Witnesses


The accused filed a notice that a defense witnesses would orally request protective measures from the Tribunal.[2] The notice did not provide the reasons for the request, which were to be given in court by the witness.[3] The Chamber decided not to award protective measures.


The Chamber decided “that implementing the procedure set out in the Request would not only prevent the Chamber from making an informed decision on the forthcoming requests for protective measures based on substantiated submissions from the parties but would also result in an inefficient use of the limited court time.”[4] The Accused was ordered to timely file substantiated requests for protective measures in the future.[5]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[6]

Order on Urgent Request of Counsel for Mr Badreddine of 18 September 2012

One of the counsel for Mr. Badreddine filed a request with clarification on his ability to represent the accused after the United States put the accused on a sanctions list.[7] Among other things, no US person is allowed to provide services to the accused.[8] The US Treasury issued a waiver allowing continued representation, so the President declared the motion for clarification moot.[9]


Prosecutor v. Gaddafi & Al-Senussi[10]

Decision on the “Libyan Government Request, made in the interest of judicial efficacy, to either: (a) treat the hearing scheduled for 9-10 October 2012 as a status conference; or (b) reschedule the admissibility hearing for November 2012”


Libya filed a request with the Trial Chamber to convert the scheduled hearing on admissibility into a status conference or to postpone the admissibility hearing.[11] The Chamber rejected the request.


The Chamber considered that the scheduled hearing will not necessarily be the final word on admissibility submissions and that further proceedings may be necessary depending on what transpires in court.[12] The Chamber did not therefore feel it was necessary to distinguish between an admissibility hearing and a status conference and that Libya had specified who would be able to speak on her behalf in any case.[13]

Prosecutor v. Bemba[14]

Decision on the amended order of witnesses to be called by the defence


Two defense witnesses have either failed to finish giving their testimony or to fly to The Hague to begin giving their testimony.[15] Some hearings were held on possible modification of the order of the defense presentation of evidence.[16]


The Chamber expressed that generally it is to the parties to choose how and in what order evidence will be presented.[17] However, given the present circumstances, and the involvement of the parties, the Chamber ordered a chance in the order that the witnesses would be heard.[18]

[1] IT-95-5/18-T, 2 October 2012.

[2] Ibid. at p. 2.

[3] Ibid. at pp. 2-3.

[4] Ibid. at p. 3.

[5] Ibid.

[6] STL-11-02/PT/PRES, 2 October 2012.

[7] Ibid. at ¶¶ 1, 3.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶¶ 3-4.

[10] ICC-01/11-01/11, 3 October 2012.

[11] Ibid. at ¶ 10.

[12] Ibid. at ¶ 13.

[13] Ibid. at ¶¶14-15.

[14] ICC-01/05-01/08, 3 October 2012.

[15] Ibid. at ¶¶ 3-4.

[16] Ibid. at ¶¶ 5-9.

[17] Ibid. at ¶ 12.

[18] Ibid. at ¶ 14.

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