By Otto Spijkers

As the whole world knows, Radovan Karadžic is currently a detainee at the Detention Unit of the ICTY. The rights of detainees are determined by the Rules of Detention. These Rules also define the word ‘detainee’ as ‘any person detained awaiting trial or appeal before the Tribunal.’ Rule 5 prescribes that ‘all detainees, other than those who have been convicted by the Tribunal, are presumed to be innocent until found guilty and are to be treated as such at all times.’ Because they are presumed innocent, detainees have a certain freedom of movement, albeit very limited (they have no internet access, for example, which seems to be a basic necessity these days, perhaps even a human right). 

Rule 4 prescribes that ‘a detainee is entitled to observe his religion or beliefs.’ Rules 66-68 of the Rules of Detention describe in some detail what this right to ‘spiritual welfare’ entails exactly.

I was intrigued by a picture of the Spiritual Room, one of the common rooms the detainees share, where the detainee can enjoy his ‘spiritual freedom’ and meet with accredited representatives of his faith. 

This is what the Spiritual Room looks like (I have no comment; I just think this picture is a work of art):

By Tobias Thienel

The State of Texas last night committed between four and six violations of international law in one go. That must be a record even for the Lone( Sta)r State. Here’s hoping that it is, and will remain so for some time.

Texas has, of course, done this by executing José Ernesto Medellín. In doing so, it has violated, most obviously, the ICJ judgment in the Case concerning Avena and Other Mexican Nationals (para. 153(11)) and the ICJ Order instituting provisional measures in Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (para. 80(b)). None of this is even remotely controversial; indeed, the United States repeatedly acknowledged, in the ICJ no less, that Mr. Medellín’s execution, in the circumstances prevailing yesterday, would violate the terms of the ICJ judgment (see pp. 13, 14 and 17 of the transcript of oral argument in the latest ICJ hearing).

But the list goes on… Continue reading →

By Otto Spijkers

Next week, the 2nd Global International Studies Conference will start in Ljubljana, Slovenia. The conference is organized by the World International Studies Committee (WISC), and the theme of the conference is What Keeps us Apart, What Keeps us Together (International Order, Justice, Values). It is enormous. There will be three Plenary Roundtables: one on international order, another on global justice, and a third on global values. Next to those roundtables, there will be, if I calculated correctly, around 200 panels, with around four paper presenters each. So that’s around 800 papers being presented in total, if my calculations are correct. And I understood that 71 countries are represented among those 800 presentations. The programme director wrote that he needed 5127 emails to receive and answer questions by all these presenters (I assume they are about deadlines and that sort of thing.) 350 papers are already available online, so I am sure there is something worth reading for everybody. I don’t know what happened to the remaining papers. Perhaps they are being written this weekend?? One of the 350 written and uploaded papers is called What’s Running the World, and it is about global values, world law, the United Nations, and global governance (like the PhD I am currently working on). The conference will be held in the Faculty of Social Science of the University of Ljubljana, with a reception in Ljubljana Castle. It looks like it will be an amazing conference in an amazing city!

By Otto Spijkers

This morning, at 11.00am local time, the District Court in The Hague decided on the immunity of the United Nations before the Dutch courts, in a case between the Mothers of Srebrenica and the Netherlands/United Nations. In this case, the Mothers of Srebrenica argue that both the United Nations and the Netherlands failed to prevent the genocide in Srebrenica in the mid-nineties. Since the United Nations did not appear in the local court, it was the Netherlands that argued for the Organization’s immunity. This morning, all that was decided upon was this immunity of the United Nations. The judgment is available in Dutch, Bosnian, and English. Let me already give away the answer: the United Nations had the right to claim immunity and cannot be brought before a Dutch court. This result is not so interesting, because it was the expected result. But the way the result was reached is interesting, because the local judge had to assess all sorts of international treaties, incl. the UN Charter and the Genocide Convention, and case law, incl. the ICJ’s judgment, Al Adsani, and Behrami, the last of which the judge interpreted as saying that ‘states cannot […] be held liable for the actions of national troops they made available for international peace-keeping missions’, which seems problematic even if the case is continued without the UN. Since most of our readers do not speak any of the first two languages (Dutch, Bosnian), I will reproduce below the relevant parts of the English translation of the judgment. Continue reading →

By Otto Spijkers

Yesterday, the judges of the International Criminal Court’s Trial Chamber ordered the release of Lubanga, who was about to become the first person ever to be put on trial by the ICC (for the background, see my co-blogger’s earlier post on the ‘secret evidence incident‘). Lubanga is not actually a free man at this moment, because the Prosecutor has been offered the opportunity to appeal the Trial Chamber’s decision to release him. On 17 July, the Rome Statute, i.e. the treaty containing the Statute of the International Criminal Court, celebrates its 10th Anniversary. The two facts just mentioned have little to do with each other, but one cannot help notice: Isn’t it ironic that the two facts take place within days of one another? Indeed, it is a bit like rain on your wedding day. Since I am a supporter of the ICC, I prefer not to exploit this coincidence for more cheap shots (even though it is fun to do), and instead focus on a speech delivered by our Minster of Foreign Affairs, Maxime Verhagen, during the celebration of this anniversary, which took place at the Peace Palace in The Hague, Netherlands. Continue reading →

By Björn Elberling

I’m currently buried in the final stages of the dissertation, so instead of substantive posts, a couple of interesting links. Rob at Marxist law blog "Law and Disorder" has been posting quite a lot recently, including a number of posts on international law topics. Readers interested in leftist approaches to international law should check out his review of Bill Bowring’s The Degradation of the International Order? and the series of posts on a Conference on "New Approaches to Self-Determination" at the Centre for Colonialism, Empire and International Law.

By Tobias Thienel

A few weeks ago, I reported on this blog that a High Court case had been brought to force the British government to hold a referendum on the Treaty of Lisbon, which is to reform the European Union. Judgment in the case was delivered today, in which the Court (Richards LJ and Mackay J) dismissed the claim. The government is now under no obligation to hold a referendum. It appears, failing further decisions conditional on any appeal, that it will now proceed to declare the ratification of the Treaty. The relevant legislation has already been through Parliament, and has received the Royal Assent. All that remains is for the government to declare ratification on the international level. The outcome of R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) perhaps wasn’t all that surprising. Even so, my earlier guess of how the claim would be dismissed has not quite been confirmed. The claim was not in terms declared to be non-justiciable. However, the Court’s reasoning wasn’t a million miles from that option. It held that the original government promise of a referendum on the Treaty Establishing a Constitution for Europe did not contain an implicit promise that the same would be done for any later treaty containing much the same terms, which the claimant argued was the Treaty of Lisbon. The promises on the old, later demised treaty could not carry any such implication, because the later treaty could not possibly have been expected at the time. The Court further held – and this is where I think there is a strong link to the justiciability issue – that it was in no position to say that the Treaty of Lisbon was practically the same as the Treaty Establishing a Constitution for Europe. That assessment, the High Court said, ‘depend[ed] primarily (…) on a political rather than a legal judgment.’ There were ‘no judicial standards by which the court [could] answer the question’ (para 34). The Court further doubted in terms that the matter was ‘justiciable at all’, and said that the assessment by a House of Commons committee and, interestingly, by the Dutch Council of State, was in any event not unreasonable in the sense of English administrative law (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Note that the High Court was careful not to pass judgment directly on the political issues. It did not nearly criticise either the British or the Dutch government. It was always unlikely that it would do anything of the sort. Taking the matter to court never was a very promising plan. [The Court also let on that the claim might have failed on a number of other grounds, on which it did not elaborate.] So, the present European crisis has not been exacerbated by the High Court. I, for one, would have been stunned had it been.

 By Tobias Thienel

The U.S. Supreme Court today struck down a Louisiana statute authorising imposition of the death penalty for the rape of a child: Kennedy v. Louisiana. The crime in question was awful beyond words, but the Court held that passing sentence of death for it violated the prohibition of ‘cruel and unusual punishment’ under the Eighth Amendment to the Constitution. That was an express application of the concept of ‘evolving standards of decency’ that the Court has previously regarded as controlling application of the Amendment, but about which the conservative members of the Court are less than happy. As may not have surprised anyone, today’s decision was therefore made by a majority of only 5 to 4. The usual suspects line up on either side as expected. The decision only contains the most passing reference to international opinion imaginable (in that it cites an earlier ‘evolving standards’ case as looking to international opinion), and no reference at all to international law (so far as I can make out). Even so, I would suggest that the Court has done the right thing from the point of view of international law. International law, I would argue, required that (a) the death penalty could not be extended to apply to crimes to which it had not previously applied, and (b) it could not in any event be imposed for the offence at issue in Kennedy. Continue reading →