The case that divided Strasbourg: Vasiliauskas v Lithuania

Isabelle La Gallez
Isabelle Le Gallez

On the 20th October 2015, the ECtHR Grand Chamber decided a case involving criminal acts which took place some 60 years ago. In Vasiliauskas v Lithuania (35343/05), not only were the facts politically and legally interesting, but more fascinating still was the 9:8 split between the 17 judges of the Grand Chamber. Such splits being a notable rarity for the court.

Background

The facts of the case had their origin in the power struggle between Stalin and Hitler over control of the Baltic States in the 1940s. Stalin won this battle, annexing Lithuania and subsuming it into the Soviet Union. This led to the rise of a partisan movement dedicated to the restoration of an independent Lithuania. Various Soviet organisations sought to suppress the resistance. The Applicant, Mr Vytaytas Vasiliauskas, served for 25 years in two such organisations rising to the rank of Lieutenant Colonel in the KGB. The particular offences which concerned the domestic courts were the ‘liquidation’ (para.26) of two partisans, J.A. and A.A. on the 2nd January 1953 by a group of soldiers which included the Applicant.

Following the collapse of the Soviet Union and the gaining of Lithuanian independence in 1990, questions were raised about the horrific incidents that occurred under the previous regime. Nearly 50 years after their deaths, an investigation commenced into the deaths of J.A. and A.A.  As a result of this investigation in 2004 the Applicant was charged with genocide under Art.99 of the Lithuanian Criminal Code of 2003 [LCC], found guilty and sentenced to six years imprisonment.

Court of Appeal

On appeal in September 2004 the conviction was upheld. The Applicant contended that his actions did not, according to the law as it stood in 1953, amount to genocide. In assessing these arguments, the court sought to establish what the applicable law was at the time the offences were committed. In 1948 the United Nations had passed The Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). The key Article of this convention is Art.II which it is worth reproducing in full:

‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial , religious  group’ (emphasis added).

It was the Applicant’s argument that his killing of the Lithuanian partisans fell outside the ambit of the Convention’s definition of genocide. However, the Court of Appeal relying on Article 99 LCC which, in addition to those groups defined by the Genocide Convention also included ‘political groups’ and which thus brought the crimes of the Applicant within the grasp of the law. The Applicant appealed once more.

Supreme Court

In February 2005, the Supreme Court of Lithuania dismissed the appeal and upheld the conviction. The applicant once again argued that the LCC defined a broader interpretation of genocide than the Genocide Convention and therefore it did not ‘correspond to the norms of international law’ (para.38). This was categorically rejected by the Court, which also held that even if the national law was too broad, the Applicant’s conviction was still legal as the partisans could be classed as being a part of a ‘national’ group as included in Art.II of the Genocide Convention.

It is worth highlighting the key questions that the Court was required to examine:

  • Were the Applicant’s rights under Article 7 ECHR; ‘no punishment without law’ (nullum crimen sine lege) infringed by the Respondent?
  • And if so, how?

The ECtHR

The Applicant argued that the Lithuanian courts ‘had [wrongly] applied the criminal law retroactively’ (para.123). The Respondent, relying on both the Genocide Convention and the U.N. Resolution of 1946, contended that the partisans were not only ‘political’ but also ‘nationals’ and that genocide was a crime in 1953. Fundamentally their argument was that the lack of the word ‘political’ in Art.II of the Genocide Convention was ‘not decisive’ (para.138) since the broader meaning found legitimacy in relation to customary international law. The main question for the Court was whether the Applicant in 1953, could ‘reasonably have foreseen himself being charged and convicted of a crime under international law’ (para.141). The Court held that there was no violation of the applicant’s rights under Art.7.1 ECHR.

The Majority Decision

The Court predictably started by highlighting the fundamental importance of the ECHR and specifically Art.7. They noted that Art.7 clearly prohibits retrospective application of criminal law but affirmed that there is always a level of judicial interpretation with any law and further that they must ‘adapt to changing circumstances’ (para.155). They rejected the non-retroactive law mantra and stated that when there has been a change in ‘political regime on a national territory’ (para.159) that it is fully within the boundaries of law that one can ‘bring criminal proceedings against those who have committed crimes under a former regime’ (para.159). Art.7 then required them to assess whether there was a legal basis, which was sufficiently clear in 1953 for the Applicant’s conviction.

The majority stated that it was crystal clear that genocide was considered a crime under international law at that time and that the Soviet Union under whose authority the Applicant acted, was a signatory to the Genocide Convention.

The majority then discussed whether the crime the Applicant committed could be classed as genocide. They concluded that ‘political’ was indeed left out of Art.II of the Genocide Convention but then considered whether the inclusion of ‘political’ could find support from customary international law. The Court concluded that given the plethora of opinions in this area that they could not find a ‘sufficiently strong basis’ (para.175) to find in this respect.

The Court proceeded to discuss the Respondent’s claim that the deceased formed ‘part’ of the ‘national’ group as protected in Art.II. There is little clarification in past case law regarding what ‘in part’ really entails but the Court concluded that the phrase involves a requirement as to substantiality. Due to lack of clarity on this issue it can merely be inferred that they did not view the deceased as ‘part’ of the ‘national group’.

This reasoning led to the majority finding that:

  • National courts can give genocide a broader interpretation than that embodied in the Genocide Convention, but they cannot use this discretion to convict under any broader concept retrospectively.
  • In relation to the need to be able to foresee an act constituting a crime, the Court found that even with legal advice at the time it was unlikely that the applicant would have foreseen that his actions could constitute genocide.
  • They supported this decision by reference to EU law, stating that both ECHR law and EU law recognise the seriousness of the crime of genocide and thus there should be ‘stringent requirements’ (para.185) that need to be met before a conviction is imposed.
  • Therefore Art.7.1 has been infringed and cannot be justified using Art.7.2
  • The Applicant was entitled to damages of €10,072 plus legal fees.
The Plentiful Dissentions

Judges Villiger, Power-Forde, Pinto de Albuquerque and Kuris

This minority group disagreed with the majority about whether the Applicant’s conviction was in line with the law as it stood in 1953. They concluded that the law was sufficiently clear and believed there was no issue with the lack of the word ‘political’ in the Genocide Convention, since the deceased partisans clearly constituted a ‘part’ of the ‘national’ group.

They felt that the Applicant could easily have foreseen his conviction at the time the criminal act was committed. They cited the Applicant’s direct intent to eliminate such persons as the deceased and, unlike the majority, felt that if the Applicant had sought legal advice, that he would have been informed that his acts ‘bore the essential characteristics of the crime of genocide as it stood under international law at the time’ (para.30 of their dissenting opinion). This minority viewed the majority’s verdict on Art.7 infringement as ‘a matter of regret’ (para. 38 of their dissenting judgment).

Judge Ziemele

Judge Ziemele agreed with the above dissention but felt the need to criticise the majority’s interpretations of EU Law on what constitutes ‘in part’ saying their interpretation is clearly ‘more nuanced’ (para.17 per Judge Ziemele).

Judges Sajo, Vucinic and Turkovic

This dissention numbers a mere eight lines and refers to a decision made by the Constitutional Court in March 2014. In summary, these judges use Arts.35.1 and 35.4 of the ECHR to deem this claim inadmissible.

Comments

It is clear that there is more going on than mere differing interpretations of the words in the relevant law and conventions. The minority highlighted that legal theory is playing a role, when they question the formalistic approach adopted by the majority. The minority looked upon the use of formalism in this case as repugnant, especially Judge Kuris. He felt that the majority was expounding an image of ‘Courts in their ivory towers dealing with law’ (para.8, Judge Kuris) without looking at the impact of their decisions. In the eyes of Judge Kuris and perhaps the other dissenting judges the function of the court is ‘more importantly, about dealing with human justice’ (para.8, Judge Kuris). This denotes flavours of natural law in its 21st Century form with human rights constituting the ‘higher law’.

Viewing the law through the filter of natural law it seems only right that the Applicant who took part in the murder of not only the two deceased but as an active part in the bigger scheme that killed 20,000 people who embodied the partisan movement, should not be allowed to rely on his human rights when he flagrantly ignored those who he oppressed. This case proves that issues arise when judges take different stances as to the purpose of law in cases like these or of law more generally.

Isabelle Le Gallez is a 3rd Year Law Student at the School of Law, University of Sussex

Do States Have to comply with Human Rights when Countering the Phenomenon of Foreign Fighters?

Alex Conte
Alex Conte

In a blog for EJIL: Talk!, I consider an old question in a new context: do States have to comply with human rights when countering foreign fighters? The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters has the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

  1. Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Concerning measures to implement the objectives under SC Res 2178 as a whole, the following further rights may be engaged: rights applicable to the criminalisation of conduct, including as this affects the principles of legality, non-retroactivity of criminal laws and double jeopardy; prosecution, including as this affects the right to a fair trial; the right to freedom of expression; the right to freedom of association; and various rights engaged as a result of financial and UN terrorist listing sanctions, including as these relate to the due process deficiencies within the Security Council’s terrorist sanctions regime.

  1. This is exacerbated by the absence in SC Res 2178 of a comprehensive, concise and human-rights compliant definition of terrorism

Consideration of human rights compliance when combating foreign fighters, especially with regard to action in response to Security Council Resolution 2178, must also take into account the absence in that resolution of a definition of terrorism. The absence of a comprehensive and concise definition of terrorism has drawn much criticism, including from the former Special Rapporteur on human rights and fundamental freedoms while countering terrorism (see para 26). His solution was to propose a human-rights compatible definition of terrorism (Practice 7 in his report), drawn from Security Council Resolution 1566 (2004), para 3. This lack of definition, which creates the risk of States adopting overly broad or abusive definitions of the term in the context of combating foreign fighters, is a further aspect to be taken into account  when considering State responses to the phenomenon of foreign fighters against the backdrop of their international human rights obligations.

  1. Global security and human rights are not to be juxtaposed; they are complementary and mutually reinforcing

In September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy, as recommended by Kofi Annan in his report entitled Uniting against Terrorism. In his report, the former Secretary-General emphasised that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones (para 118).

The principle of complementarity and mutual reinforcement between security and human rights is reflected within the Global Strategy in three ways. First, respect for human rights for all and the rule of law forms one of the four pillars of the Strategy (Pillar IV). Second, it is also identified as “the fundamental basis of the fight against terrorism” (Pillar IV, title), thus applicable to all four pillars of the Strategy. Finally, the Strategy’s recognition of the importance of respect for human rights while countering terrorism is reflected through the express identification that a lack of the rule of law and violations of human rights amount to conditions conducive to the spread of terrorism (Pillar I, preambular paragraph).

  1. The Security Council has itself made repeated reference to the need for human rights compliance when implementing SC Res 2178

A notable feature of Resolution 2178 is its repeated reference to the need for human rights compliance. Its preambular paragraphs recognise, in line with the Global Counter-Terrorism Strategy, that measures to counter the phenomenon of foreign fighters must comply with the UN Charter and with States’ obligations under international law, in particular international human rights law, international refugee law and international humanitarian law (preambular paras 5 and 7). Resolution 2178 underscores that “respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort”; and notes that lack of compliance with obligations under international law (including international human rights law) “is one of the factors contributing to increased radicalization and fosters a sense of impunity” (preambular para 7).

In requiring, or recommending, particular action by UN Member States, the operative provisions of Resolution 2178 follow this pattern. For example, the resolution requires States to “prevent and supress the recruiting, organizing, transportation or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training” (operative para 5). But it expressly requires that States do so “consistent with international human rights law, international refugee law, and international humanitarian law”.

  1. The principle of complementarity and mutual reinforcement is also a natural consequence of States’ legal obligations and of the flexibility of human rights law

An obvious point should be recalled: not only are human rights essential to a sustainable strategy for the countering of terrorism, but States are obliged by law to comply with their international human rights obligations. States have human rights obligations under customary international law (applicable to all States) and international treaties (applicable to States parties to such treaties). Compliance with human rights is not something requiring States to do something extra, or something special. In commenting on human rights in the fight against terrorism, former Judge of the European Court of Human Rights,

Justice Egbert Myjer
Justice Egbert Myjer

, succinctly stated: “Just do what you have promised to do” (Myjer E (2009) Human Rights and the Fight against Terrorism – Case-law of the Strasbourg Court (paper presented at the Round Table Fight against Terrorism: Challenges for the Judiciary, 18-19 September 2009, Fiesole, Italy), p.1).

Furthermore, any argument that respect for human rights prevents States from effectively fighting terrorism not only takes a short-term perspective, it also disregards the nature of international human rights law which, other than in the case of a limited number of rights, incorporates a level of flexibility to accommodate security and public order objectives.

  1. The requirement of human rights compliance is not altered when States implement binding decisions of the Security Council

As discussed, certain aspects of the operative provisions of Security Council Resolution 2178 make express reference to the need for States to comply with their international obligations, including under international human rights law. Other binding decisions do not, prompting the questions: how are such obligations to be interpreted; and what approach is to be taken with respect to future decisions of the Security Council where ambiguity is present?

In cases before the UN Human Rights Committee and the European Court of Human Rights, States have, in simple terms, argued that human rights considerations are not relevant when determining the meaning or implementation of Security Council resolutions under Chapter VII of the Charter. States have pointed to the fact that Chapter VII decisions must be carried out by States, without discretion, by virtue of Articles 25 and 48 of the Charter. They have argued that Article 103 of the Charter requires that human rights obligations must be set aside since that provision holds that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter [here, obligations to comply with Security Council resolutions] and their obligations under any other international agreement [here, international human rights treaties], their obligations under the present Charter shall prevail”.

In Sayadi and Vinck v Belgium, the majority of the Human Rights Committee avoided the issue by concluding that the Committee was competent to consider the compatibility with human rights of national measures to implement a Security Council resolution (para 10.6). Its focus was on implementation, rather than interpretation. Two diverging positions can nevertheless be seen. On the one hand, Committee member Ivan Shearer took the view that the Committee should have rejected the authors’ case as unsubstantiated. He effectively agreed with Belgium that the combination of Articles 25, 48 and 103 of the Charter meant that the ICCPR was subordinate to the Charter, not on a par with it. In contrast, Sir Nigel Rodley considered Article 24(2) of the Charter (which provides that the Security

Prof Sir Nigel Rodley
Prof Sir Nigel Rodley

Council must discharge its duties “in accordance with the Purposes and Principles of the United Nations”), concluding that it should therefore be presumed that the Security Council does not intend that action taken pursuant to its resolutions should violate human rights, and that Security Council decisions should be interpreted in light of that presumption.

The European Court of Human Rights, in Al-Jeddah v UK, arrived at the same result as Sir Nigel Rodley. It concluded that the purposes and principles of the Charter, when combined with the qualified competence of the Security Council under Article 24(2) and the UN and Member State commitments under Articles 55(c) and 56, called for an interpretation of Security Council resolutions in a way that was most in harmony with the provisions of the European Convention on Human Rights (para 102). The same approach was later taken by the European Court in Nada v Switzerland in the context of Security Council listing and sanctions resolutions, where it stated:

“[T]he United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes upon States an obligation of result, leaving them to choose the means by which they give effect to the resolutions.”

  1. A human rights compliant approach when implementing binding decisions of the Security Council remains the case even when a State is left with no choice as to the means of implementation

A further question must be addressed: what if a State considers that there are no human rights compatible options in the implementation of a Security Council decision?

The majority approach of the Human Rights Committee in Sayadi and Vinck v Belgium was to disregard any question of the compatibility of Security Council decisions with human rights, instead focussing solely on the question of the compatibility of implementing acts by Belgium with its obligations under the ICCPR. The majority stated (para 7.2):

“While the Committee could not consider alleged violations of other instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party.”

In November 2013, the European Court turned its mind to the question under consideration in this section. In Al-Dulimi v Switzerland, the Court agreed with Switzerland (and France and the UK, who joined as third party interveners) that sanctions mandated under operative paragraph 23 of Resolution 1483 (2003) left Switzerland with no discretion as to the means of implementation (para 113). The Court held that States nevertheless remain liable under the ECHR for all acts and omissions of their organs arising from the need to observe international legal obligations. It continued to explain that, if the organisation under which such obligations arise (in this case the UN and its Security Council) has means of protecting human rights that are at least equivalent to the ECHR, the Court can in such cases assume that the State has complied with its obligations under the ECHR (para 114). The Court concluded that no equivalent protection existed and that, accordingly, Switzerland bore full responsibility for any violation of rights under the ECHR in its implementation of Resolution 1483 (paras 118-120).

Two conclusions can be drawn from this jurisprudence. First, wherever a State has a choice as to the means of implementing a decision of the Security Council, including on foreign fighters, it must adopt the means of implementation that are most consistent with its international human rights obligations. Second, even if an irreconcilable conflict arises between a Security Council decision and a State’s human rights obligations (leaving the State with no choice as to the means of implementation), the State nevertheless remains liable for all acts and omissions of their organs arising from the need to implement such a decision, unless the Security Council decision is accompanied by means of protecting human rights that are at least equivalent to the State’s international human rights obligations. Article 103 of the Charter therefore does not provide States with shelter from bearing full responsibility for any violation of rights.

 

Dr Alex Conte is a Reader in Human Rights Law at Sussex Law School, University of Sussex. His principal area of research interest concerns global security and human rights, looking at various issues pertaining to global security and the interface this has with human rights and the rule of law, as well as with the intersection between international human rights law and international humanitarian law. Twitter: @alexcontelaw.

The Media and the Investor-State Dispute Settlement: TTIP of the Iceberg

Edward Guntrip
Edward Guntrip

Cross posted with permission from International Law Matters (originally posted 3 November 2014).

In the United Kingdom (UK), the mainstream and popular media have been reporting details of the proposed impact of the Transatlantic Trade and Investment Partnership (TTIP) between the European Union (EU) and the United States of America (USA) (see for example, articles from the Independent, the Guardian, the Telegraph and the Huffington Post). The TTIP is a trade agreement that is intended to minimise regulatory differences and remove trade barriers between the EU and the USA. The TTIP also seeks to open the market between the EU and the USA for investment and services. In the majority of stories discussing the TTIP, journalists and columnists have raised concerns regarding its potentially negative influence. There is apprehension concerning the possibility of increased privatisation of state-run healthcare services, the relaxation of environmental standards, and the introduction of food that does not comply with existing EU standards. Examples of these types of media reports can be found here and here. In addition, the media is warning the public about the threat of investor-state dispute settlement (ISDS) (see for example, here).

The potential impact of the TTIP on citizens of EU member states and the USA needs to be fully discussed, and a dialogue between all interested parties is to be encouraged. An open conversation could have easily been achieved had those negotiating the TTIP made the negotiating aims tipptransparent from the outset. However, the mandate setting out the negotiating directives was only made public in October 2014 after seven rounds of negotiations. Given the recent change in policy regarding the transparency of the negotiations, the main source of information regarding the TTIP for the vast majority of people, so far, has been through reports in the media. Therefore, it is unfortunate that the debate has been presented to the public by the UK media in an incomplete manner. This practice has been most prevalent when the UK media discusses ISDS.

ISDS was established as an alternative dispute resolution forum for disputes over foreign direct investment (FDI). It was initially intended to provide a neutral forum for investment disputes. Foreign investors did not want to take the political risk of submitting disputes to a court that was likely to favour the interests of the state in which it was located. Hence, dispute settlement proceedings were held outside of domestic legal systems to avoid perceptions of bias and were adjudicated by experts rather than judges.

As it currently stands, the TTIP proposes that ISDS should be the primary form of dispute settlement for investment disputes that arise under the instrument (although this could change based on recent statements made by the new EU Commission President, Mr. Juncker). The adoption of ISDS in the TTIP created a flurry of resentment in the UK media given the ‘secretive’ nature of ISDS. Further, the public are being warned that ‘corporate lawyers’ decide these disputes. Rather than being seen as a neutral forum, ISDS is being portrayed as a forum that inherently favours corporate foreign investors. These allegations only constitute one perspective on the operation of ISDS. ISDS is becoming increasingly transparent. For example, in 2006, procedures were introduced into ISDS governed by the ICSID Arbitration Rules to enable non-disputing parties with an interest in the dispute to make submissions to an arbitral panel. Further, the recent development of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration creates a means by which the public can be made aware of investment disputes. ISDS is not solely the domain of corporate lawyers. Decisions are made by international investment law experts who, in addition to corporate lawyers, include public international lawyers and advocates. Finally, empirical evidence from 2007 suggests that foreign investors win their claims only 40% of the time when they use ISDS to resolve their disputes. This dispels the notion that ISDS is weighted towards foreign investors. This material is not discussed by the UK media in their reports on the TTIP.

Whilst aspects of the TTIP’s ISDS clauses leave a lot to be desired (see, for example, the submission of around 120 academics, supported by this author, to the EU Commission highlighting some key difficulties) the procedures envisioned do not differ substantially from ISDS available in other international investment agreements (IIAs). The key protections offered to foreign investors remain largely the same. What is frustrating about the media’s portrayal of ISDS in relation to the TTIP is that, prior to the TTIP, nine EU member states were bound by IIAs with the USA that provide for ISDS (being Lithuania, Croatia, Latvia, Estonia, Bulgaria, Romania, Czech Republic and Poland). Despite the current applicability of ISDS to investment disputes between the USA and approximately one third of EU member states, the media has mentioned none of the nine existing IIAs. By failing to mention these IIAs, the UK media is not disclosing that ISDS already operates in some EU member states in broadly similar terms to those proposed in the TTIP. This is not to suggest that the current application of ISDS to some EU member states justifies the inclusion of ISDS in the TTIP. Rather, it highlights that only the TTIP is being demonised in the media.

The media’s concern regarding the use of ISDS in the TTIP seems hypocritical when both the USA and EU member states (including the UK) insist on the same protections when their investors undertake FDI in a foreign state. In many instances, ISDS governs FDI disputes between EU member states. What the UK media presents as threatening, intrusive and secretive is actually common practice and is seen as a means of protecting UK based investors. Yet, when ISDS is discussed in the context of the TTIP, according to the UK media, it becomes unacceptable. There are arguments that could be discussed that militate against the use of ISDS in the TTIP. Both the USA and EU member states are likely to provide a neutral forum for investment disputes, reducing the need to refer disputes to ISDS in order to avoid potential bias (a discussion of these arguments can be found here). However, this argument has not been put before the public. Instead, the TTIP is being targeted by the media as the source of the problem without considering the wider context in which ISDS operates and the broader purpose of ISDS (set out above).

The point of this post is not to promote the TTIP or to prevent discussion regarding the virtues (or otherwise) of the TTIP and its ISDS provisions. The TTIP should be scrutinised in the same manner that any international agreement that affects a state’s citizens should be examined. However, the manner in which the UK media has presented the TTIP and its ISDS provisions is skewed. As the media remains the key source of information for the general public regarding the TTIP, reporting should be more balanced and nuanced.  In particular, solely focusing on the TTIP draws attention away from the widespread practice of ISDS. Further, the presentation of one-sided arguments distorts public perceptions of international investment law. Therefore, it is suggested that it would be more beneficial to have an open and informed debate regarding ISDS more generally. Any reforms could be implemented on a larger scale, rather than focusing on one instrument that has happened to catch the media’s attention. After all, the TTIP is only the tip of the iceberg.

Dr Edward Guntrip teaches international investment law at Sussex Law School.

 

Sussex LLM Field Trip to the Hague

Michael Kearney
Michael Kearney

In early December 2013, the Sussex law school returned to The Hague for our (20th?) annual postgraduate student field trip. Over the course of two days we visited the International Criminal Tribunal for the Former Yugoslavia, the Institute for International Criminal Investigations (IIWS), and the International Criminal Court. On our first morning we arrived at the ICTY. As with last year, after a short introduction to the home of the Tribunal, we received a great presentation from Matthew Cross, who works in the Prosecution office. Having given us an overview of the Tribunal’s role and functioning, Matthew gamely fielded a bunch of questions, and provided a great insight into the workings of international criminal law.

Our next step was to sit in and observe the Tribunal in action. We were fortunate that morning, that the Chamber was sitting in the case of Radovan Karadzic, who had been President of Republika Srpska and Supreme Commander of its armed forces, and who has been indicted for genocide, extermination, murder, persecutions, deportation, inhumane acts, acts of violence the primary purpose of which was to spread terror among the civilian population, unlawful attack on civilians, taking of hostages.

It was a tense affair, and after some time the Chamber went into closed session in order to facilitate a witness. We had to leave for some 15 minutes and wait in the lobby. When we returned it was quite dramatic, with a witness, their identity obscured, giving evidence about some of the violence they had encountered during the war.

Sitting behind Karadzic that morning as a defence counsel was Colleen Rohan. As was the case during last years visit, Colleen was kind enough to come and speak with us at the IIWS later that afternoon. Before she arrived from the proceedings, the afternoon session began with what would turn out to be a marathon session with her colleague, and defence counsel, Gregor Guy-Smith. Gregor has led the defence to win several key cases at the Yugoslavia Tribunal, including the highly controversial judgment on appeal in the 2012 case of Prosecutor v Momicilo Perisic.

Gregor provided us with an engaging, wide-ranging, political, legal, cultural, and at times spiritual, environmental, and philosophical review of the role, function, and possibilities and limitations of international law. When Colleen joined the session she was able to contextualise and explain the background to the activity we had seen that morning at the Tribunal, and to develop upon the practical work of defence counsel at international tribunals. The volume of materials to be analysed and the sheer scale of such cases, in time, costs, and energy, were clearly exasperating, but both Colleen and Gregor gave us a memorable overview of both the logistical and personal elements of practicing international criminal law.

After a nice evening socialising in an unseasonably mild Hague, the following morning we visited the International Criminal Court. The Court’s visiting space is a bit cramped, being a converted car park, but hopefully the new building being built for the Court will be ready for our next visit. As is the situation with all Courts, its impossible to predict in advance what will be on at any specific date. On this occasion we were brought to view one of the Trial Chambers, but unfortunately there was no proceedings under way. The Chambers were much smaller than I would have expected, but hopefully for the next visit we’ll get the chance to observe a trial in action.

Sussex LLM Students at the ICTY
Sussex LLM Students at the ICTY

That afternoon we returned to the IIWS, where Niamh Hayes gave us a quite stark presentation that focused on two key issues, namely the work of the IIWS, and the manner by which crimes of sexual violence have been, and are being, addressed under the framework of international criminal law. One of Niamh’s publications had been a key text in our autumn term teaching so it was a great opportunity to meet with and to hear her wide-ranging presentation. Again, it was clear and to the point. While the subject matter was often uncomfortable, it was a provocative, illuminating, and considered presentation, and one which I’m certain will have encouraged many of us to push harder in the quality of our work.

The field trip, was, overall, a great success. For myself, Elizabeth Craig and Charlotte Skeet, it was a pleasure to get to know our students that bit better, and to have the chance to spend a few days in Court rather than in class. Richard Vogler, the brains behind the whole trip, is to be thanked for all his logistical work and organisational support. We’re already looking forward to our next trip …

Michael Kearney is a Lecturer at Sussex Law School

Get Real: ‘Human Rights’ Court ‘Oks’ Torture

Michael Kearney
Michael Kearney

It’s been a few more bad weeks on the torture front.  On 20th January a report compiled by several former war crimes prosecutors alleged “direct evidence” of the “systematic torture and killing” of thousands of men, thought to be victims of the Syrian government’s security agencies. On the 27th, Robert Fisk used his Independent column to raise the plight of Abdullah al-Qahtani, a Saudi national on death row in Iraq, whose case has been taken up by Amnesty International, and who has been subject to the torture typical of Iraqi detention centres.

If such conduct in Iraq and Syria can be tolerated or explained away by the environment of war, violence, and impunity in which they occurred, what then, as to how the UK is dealing with torture? Another report on systematic torture in Iraq, was, in January, submitted to the Office of the Prosecutor of the International Criminal Court. Compiled by Public Interest Lawyers and the European Centre for Constitutional and Human Rights, the report details both the commission of torture by British soldiers and the failure of the British state to properly investigate and prosecute the actions of its citizens.

I’ll return to this Report over the coming weeks, but here I want to comment on the judgment of the European Court of Human Rights in Jones & Ors v United Kingdom, which was delivered 14th January 2014. The Court upheld the House of Lords’ 2006 decision which ruled that British citizens could not seek redress through the Courts for the torture to which they were subjected to, during detention, by named Saudi police officers, including incidents allegedly authorized by a Saudi minister.

The ECtHR judgment reads like a sorry positivist textbook, and is devoid of any reference to actually existing human rights. Instead, the judges appear to have read the sources of law in such a way that the principles of public international law, rules around treaty interpretation, and specifically the norm of sovereign immunity, are elevated to a higher plane than any consideration of the progressive development of human rights jurisprudence.

It might be hard to assert that the outcome of the case could have been very different, given that the prevailing case law, notably the 2012 decision of the International Court of Justice in the Germany v Italy (Immunities) judgment, confirms that states remain immune from suit in the courts of other countries, even when the most serious violations of human rights, those of a supposedly jus cogens nature, have been accepted as fact, and where no other avenue for compensation or redress exists.

That week’s public international law seminar was on immunities, so with minimum notice we took the new judgment as the point of discussion. The response, particularly from students familiar with the ECtHR, was unanimously grim. The blunt dismissal of the applicants’ claims (four in total, with one having

torture

died since the Lords’ judgment), with no effort on the part of the Court to even attempt to balance the rights of the individual to redress for torture, is quite disheartening.

In holding that the applicants’ article 6 right (to a fair trial and to redress for violations) had been justifiably restricted, the Court found the UK’s actions to be both legitimate and proportionate (paras 188-9). The legitimate aim was that of the promotion ‘of comity and good relations between states’ by respecting sovereignty, while the restriction on the applicants, since it reflected ‘rules of public international law on state immunity cannot in principle’, have been disproportionate.

With respect the human rights against which such considerations should have been balanced, the Court failed to go into much detail, the only notable exception being that the judgment did give space to consideration of various statements from the UN’s Committee Against Torture, urging the necessity that states give torture victims the possibility of taking such civil claims. Rather than side with their counterparts (policy wise, if not formal) the Court deferred to Bingham’s dismissal of the Committee’s pronouncements as being only ‘of slight legal authority’, on the grounds that the International Court of Justice has yet to make an equivalent assertion.

Very frustrating in the Court’s judgment is this circular use of sources: national courts are asserting that they do not have the power to override international law’s respect for sovereignty by declaring exceptions to immunity not identified by international tribunals. In turn the international courts justify their subjugation of accountability to sovereignty by reference to the lack of domestic jurisprudence categorising such exceptions.

What’s particularly galling is that there is but one substantive dissent, that of Judge Kalaydjieva, who stated that she ‘not only share[s] the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find[s] it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment […] but not concerning redress for torture – as in the present case.’

Judge Antonio Trinidade
Judge Antonio Trinidade

This is in sharp contrast to the judges of the International Court of Justice in the 2012 Immunities case where Bennouna, Yusuf, and Trindade J each gave scathing dissents. Trindade concluded a powerful 100 page dissent by stating that ‘my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment.’ [His emphasis.]

In a statement that directly reflects the facts in Jones, Bennouna stated that ‘it is only in exceptional circumstances — when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form — that a State could lose the benefit of its immunity before the courts of the forum State. The right of the individuals concerned to have access to justice in their own country would then take precedence, where the State in question had refused to submit to the fundamental principles of law — on which, moreover, it was itself relying.’

Judge Mohamed Bennouna
Judge Mohamed Bennouna

One should expect that a human rights court would have at least taken some of these dissents into consideration. On this record it looks like the ICJ is the court to which human rights activists should be looking for support, while the European Court of Human Rights [my emphasis], is withdrawing into a dull public international law realm of Westphalian obeisance. In response to the judgment, one of the applicants’ lawyers contextualized the decision with the claim that ‘Strasbourg is increasingly reluctant to rule against the UK Government because of Westminster’s “hostility” to the European Court of Human Rights’.

For now I want to briefly stress some of the key problems that this judgment leaves us with. The first concerns the notion of ‘jus cogens’. At para 93 the Court claimed that there is ‘no conflict’ between jus cogens laws, such as the prohibition of torture, and the rules of state immunity. This is absurd. Of course there’s a conflict. If there weren’t a conflict then we wouldn’t have needed a judgment to figure out which rule of international law trumps which. As to whether jus cogens actually means anything in practice, other than being a fancy label, it’s difficult to figure it out but it doesn’t appear to bring anything substantial to the meaning of the prohibition of torture.

The Court, at para 176, noted the UK government’s argument that, ‘the rule of State immunity did not authorise or condone torture and was therefore not incompatible with the prohibition of torture’ on the grounds that  ‘It merely diverted any breach to a different method of settlement.’ This brings us to a second problem. There is ‘no different method’ in existence. The European Court is the court of last resort.

Finally, at para 187 the Court, in setting out its stall on the assessment of the case, notes that it would be inconsistent ‘with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons.’ The judgment then proceeds to remove from the jurisdiction not just of national courts, but of the European Court itself, the whole range of civil claims on torture committed in other countries by state officials, and does indeed confer immunity from civil liability on the entirety of that category of persons. This is rationalized by reference to public international law, to which the ‘Convention enforcement bodies’, have hereby decided that they are subservient to, and which they claim they can neither restrain nor control.

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In recent weeks, colleagues in Ireland had been pressing for a Ministerial led corporate trade mission to the Gulf to raise issues of human rights concern, including around torture and fair trial. The Minister concerned, Richard Bruton (Jobs, Enterprise and Innovation), took to the paper of record to pen a response to the naive, the blind, and the deaf, explaining that to raise such concerns with the Sheikhs would serve no purpose other than to sabotage our capitalists’ plans for profit. On 23rd January he wrote: ‘These people need to get real. To do as they suggest would seriously undermine our basic objective on these missions. Either we are serious about delivering the exports and investment we need to provide employment for our people or we are not.’

I’ve referring to this spat since it seems to mirror the attitude that has been shown by the European Court in Jones. My reading of this judgment is that the Court has, in light of the British government’s threats to withdraw from the Convention framework, told human rights activists, and torture victims, that they too need to ‘get real’, since to do as they suggest, and push for accountability, would serve only to antagonize the British political elite, and to undermine the objectives (the existence?) of the Court itself.

In the current edition (232) of Viz, one of the stalwart characters, Roger Mellie – The Man on The Telly, is shown on his return to Fulchester, having premiered his Road Show gig in Dubai. The punch line has Roger in the shower at the gym, his back bloody and lacerated, after having been whipped by the Emirati’s police.

Torture in the Middle-East, whether perpetrated by British soldiers, or against British citizens, has been normalised, tolerated, and to a great extent removed from the sphere of law. Given the failure of our judicial institutions to strive for progress on the problem of impunity for torture, its lucky we still have Viz then, reminding the rest of us, as has been its wont, to ‘Get Real’.

Michael Kearney is a Lecturer at Sussex Law School

Pete Seeger – What did you learn in school?

 

peteseeger

 

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?

I learned that Washington never told a lie.
I learned that soldiers seldom die.
I learned that everybody’s free,
And that’s what the teacher said to me.


That’s what I learned in school today,
That’s what I learned in school.

What did you learn in school today,
Dear little boy of mine?

Pete Seeger and a friend
Pete Seeger and a friend

What did you learn in school today,
Dear little boy of mine?
I learned that policemen are my friends.
I learned that justice never ends.
I learned that murderers die for their crimes
Even if we make a mistake sometimes.

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned our Government must be strong;
It’s always right and never wrong;
Our leaders are the finest men
And we elect them again and again.

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned that war is not so bad;
I learned about the great ones we have had;
We fought in Germany and in France
And someday I might get my chance.