By Tobias Thienel
The High Court in London has recently addressed an issue that has plagued not only the British contingent of Coalition forces in Iraq: to what extent does international human rights law prevent members of the coalition from cooperating with Iraqi authorities? More specifically, can it prevent Coalition forces from surrendering suspects to the appropriate Iraqi autorities for prosecution? Is it relevant that the member of the Coalition may be obliged to do this?
By Otto Spijkers
On 11 December 2008, an International Master Class will take place at the Campus The Hague, Netherlands. Thomas G. Weiss (CUNY) will give a presentation of the United Nations Intellectual History Project, of which he is the Co-Director. Leif Wenar (King’s College London) will talk about the Role of Global Ethics in International Relations. There is an opportunity for PhD candidates to present their research and receive feedback from these international experts. For registration and more information, see the website of the Master Class.
By Tobias Thienel
The Grand Chamber of the European Court of Human Rights has recently heard argument in the case of Micallef v Malta, in which the applicant complains of a lack of impartiality in a judge, on account of some rather strange things the judge has said. That obviously happens all the time at Strasbourg. The only embarrassing aspect of this case is that the judge in question, Giuseppe Mifsud Bonnici, Chief Justice of Malta in 1985, went on to join the European Court (from 1992 to 1998).
The Chamber judgment conveniently declined to give the name of the judge (come to think of it, they usually do – clever…), but the oral proceedings before the Grand Chamber brought up the name, and the (allegations of) rather odd behaviour on the judge’s part.
Specifically, the case is about the impartiality of a judge where one of the parties before him is represented by his own brother, and the other party suggests wrongdoing on the brother’s part. In just such a case, Mifsud Bonnici CJ is said to have rather lost his temper. On hearing that his brother was said to have done something objectionable, he apparently became quite angry, threatened to report this scurrilous, baseless allegation to ‘the competent authorities’ (presumably the Bar Council or similar), and suspended the hearing.
By Otto Spijkers
Today, the United Nations will launch a new website, the Audiovisual Library of International Law. It is made essentially by the Codification Division of the Office of Legal Affairs. Continue reading
By Otto Spijkers
On the ICTY’s website, the indictment is summarized as follows:
Florence Hartmann was indicted for knowingly and willingly interfering with the administration of justice by disclosing information in violation of an order of the Appeals Chamber dated 20 September 2005 and an order of the Appeals Chamber dated 6 April 2006 through means of authoring for publication a book entitled Paix et Châtiment, published by Flammarion on 10 September 2007, and by authoring for publication an article entitled Vital Genocide Documents Concealed, published by the Bosnian Institute on 21 January 2008.
This summary does not mention that Florence Hartmann was the spokesperson for the Prosecutor of the ICTY from 2000 to 2006, but that is no secret. Continue reading
By Otto Spijkers
The Grotius Centre for International Legal Studies of Leiden University, and the research project on the United Nations and the Evolution of Global Values are organizing an international conference on The United Nations and the Evolution of Global Values, which will take place at the Peace Palace in The Hague, 11-12 December 2008. Experts in the fields of ethics, public international law and international relations will present their views on the concept ‘global values’ and its content, the influence of these values on international law, and on the role of the United Nations in defining and promoting these values. President of the International Court of Justice, Dame Judge Rosalyn Higgins (UK), Frank Majoor (Netherlands Ambassador to the UN in New York), Joris Voorhoeve (former Minister of Defence of the Netherlands), Thomas Franck (NYU Law School), Leif Wenar (King’s College London), John Keane (University of Westminster), and Thomas Weiss (City University of New York and Director of the United Nations Intellectual History Project) are included in the programme. The conference is the international follow-up to the national workshop on The United Nations and Global Values of January 2007.
UPDATE: The entire programme is now available at www.globalvaluesconference.nl.
Source: Website Leiden University.
By Tobias Thienel
Perhaps somewhat surprisingly, the General Assembly of the United Nations has voted to request an advisory opinion of the International Court of Justice on the legality of Kosovo’s unilateral declaration of independence. (It may be noted that the question is only about the claim to independence as such, not about the conduct of other States in supporting that claim.)
Leaving the merits of the question for another day, I would like to note now that some States (most notably Albania and the United States) have voted against the request for an advisory opinion, and may come to make submissions to the Court seeking to dissuade it from addressing the question. This raises some legal questions as to when the Court may or should refuse to give an advisory opinion. Continue reading
By Tobias Thienel
The European Court of Human Rights has today delivered its 10,000th judgment. That is quite some achievement. Many of those judgments have become known as landmark cases, and all will have been important to the persons bringing them. Some have even been of intense political interest, in the respondent State or even throughout Europe.
Europe itself has, of course, grown rather bigger (as far as the Court is concerned) since 1961, when the Court delivered its first judgment. That fact has presented the Court with the obvious problem of an increased workload, and today’s press release shows how it has managed to move with the times. It is remarkable to note that, about ten years ago when the 11th Additional Protocol was adopted to streamline the Court’s proceedings (not least by abolishing the Commission), the Court had delivered no more than 837 judgments. On average, that works out as less than 23 judgments per year from 1961 to 1998, and a comparatively staggering 916 judgments a year since.
Obviously, the Court still has a huge job on its hands, with many thousands of applications pending before it, many of them against the new member States in Eastern Europe, particularly against Russia. How fitting, then, that its 10,000th judgment was in a case against Russia: Takhayeva and Others v Russia. How fitting, also, that it was a case from Chechnya, a region of particular concern to the Court.
By Otto Spijkers
Yesterday, the District Court in The Hague published two judgments relating to Srebrenica and the responsibility of the Netherlands for the acts of ‘Dutchbat’, the Dutch UNPROFOR peacekeepers stationed there at the time of the genocide in 1995. The two cases, which are almost identical, are M. M.-M., D.M and A.M. (Mustafic) versus the State of the Netherlands (case no. 265618) and H.N. (Hasan Nuhanovic) versus the State of the Netherlands (case no. 265615), both judgments of 10 September 2008.
By Tobias Thienel
I reported recently that the English High Court had found that one of the inmates and likely future indictees at Guantanamo Bay had a right to be given all information that the UK Foreign Office and MI6 had on his alleged ill-treatment by US officials. The Court held at the time that the claimant had such a general entitlement, but that the Foreign Secretary remained free to serve a certificate of Public Interest Immunity removing the claimant’s right, on the grounds that disclosure would damage the national security of the United Kingdom.
The Foreign Secretary served such a certificate, but the High Court held in a further judgment – of 29 August, published today – that he had failed to take into account all relevant considerations, as was his duty. In particular, he failed to have due regard to the severity of the claimant’s allegation, namely that he was subjected to torture and inhuman and degrading treatment. The High Court therefore gave the Foreign Secretary until Friday, 5 September (tomorrow), to revise his certificate, after which the Court will decide whether to accept that there should be no disclosure: R (Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2100.
Unsurprisingly, it was and will remain the Foreign Secretary’s position that disclosure would endanger the – important – US-UK intelligence sharing relationship, thus raising an issue of British national security. I will have more to say on that when the final decision of the Court comes out. Suffice it to note now that senior figures in the US State Department have very forcefully made that point, after the High Court’s original judgment came out. Looks like that created a bit of a stir in DC, then.
[The statements, by John B. Bellinger III., Legal Adviser to the Department of State, and Stephen Mathias, his Assistant, are set out in the decision reported today.]
Even more remarkably, the new decision shows – and notes expressly – that there has been a change of policy in the US. The information at issue will now, with some redactions, be disclosed first to the Convening Authority of the Military Commissions, and later to the claimant’s military defence counsel. His civilian counsel will be allowed access to the information if and when the Military Commission so decides. That is, as their Lordships’ judgment notes, a welcome change. Whether it is enough remains to be seen. Watch this space.