By Björn Elberling

Last Friday, ICTY Trial Chamber I unsealed an indictment for contempt of court against Astrit Haraqija, former Kosovo Minister for Culture, Youth and Sport, and Bajrush Morina, a political advisor at the Ministry. The Indictment had already been brought on 8 January 2008, but had been kept under seal until last week – probably to be unsealed after arrest of the two accused. Their initial appearance is scheduled for tomorrow. The indictment alleges that on Haraqija’s instructions, Morina met with "PW", a protected prosecution witness in the case against former Kosovo Prime Minister Ramush Haradinaj and others, and unsuccesfully tried to pressure him/her into not giving evidence. Continue reading →

By Björn Elberling

The ICTY Appeals Chamber today partially granted the appeals of Enver Hadzihasanovic (pictured left) and Amir Kubura, high-ranking officers in the Bosnian army during the Bosnian war. The Trial Chamber had found them guilty of failing to prevent or punish crimes committed by their subordinates and sentenced them to five years and 2 years, six months, respectively. The Appeals Chamber reversed some of these finding and accordingly lowered the sentences to three years, six months and two years, respectively. (The Trial Chamber judgment can be found here, a summary of the Appeals Judgment is available here) As Hadzihasanovic has already spent more than three years in detention and may well be eligible for early release, it is to be expected that he will be released very soon. Kubura had already been granted early release shortly after the Trial Chamber Judgment. [UPDATE: Hadzihasanovic has indeed been released the day after the Appeals Judgment] [And a final UPDATE: The judgment is now available here] Continue reading →

By Otto Spijkers

Whenever someone embraces the responsibility to protect at the UN General Assembly, I think it is worth mentioning. Yesterday it was the Pope who embraced that concept. Even though it may seem a modern idea, this ‘responsibility to protect’, it has in fact always been with the United Nations in some form, although it hasn’t always been as popular as it is presently. In this post, I will give a very brief overview of the most important formulations of this principle in the period between 1944 and today. Continue reading →

By Björn Elberling

Over at Opinio Juris, there is a discussion on an interesting article by Jenia Iontcheva Turner concerning "Defense Perspectives on Law and Politics in International Criminal Trials". Prof. Turner has interviewed several defence attorneys practicing at the ICTY, ICTR and SCSL about their perspectives on several aspects of trials before the ICTR. I confess to only having skimmed the article so far, but I can already say that I found it very interesting. The article is available here, the blog discussion at OJ here, here and here. Anyway – and here comes my awkward attempt at a segue to the main topic of this post – , Prof. Turner reports that while not too many defence attorneys view the Tribunals as "deeply political", that view is more prevalent at the ICTR than at the ICTY. I have to say that a lot of times when researching the jurisprudence of the ad hoc Tribunals, I can understand that defence attorneys at the ICTR would find their work a bit, well, frustrating to say the least. The most recent example that I chanced upon was that of early release. More below the fold. Warning: This is going to be a bit ranty. Continue reading →

 By Tobias Thienel

The House of Lords has yesterday decided a case that could have been quite momentous. However, the claim by the appellants was dismissed by the House, as it had been by the Court of Appeal (I have previously said a bit about that earlier judgment in the days of The Core, here and here). The case is R (Gentle) v Prime Minister [2008] UKHL 20, and was apparently felt to be important enough to be decided by nine, rather than the usual five or the somewhat rare seven, Lords of Appeal in Ordinary. The appellants, mothers of two British Army soldiers, very understandably wanted the circumstances of their sons’ deaths examined in every last detail. Given the circumstances of the British decision to go to war in Iraq, this meant also that they wanted an examination of how the Attorney General at the time (Lord Goldsmith QC) came to advise the Government and the Chief of the Defence Staff that the war would be lawful in international law. To that end, counsel for the two aggrieved mothers argued that Article 2 ECHR (‘Everyone’s right to life shall be protected by law‘) implied obligations on the State – a) to send its soldiers to war only if it has diligently checked whether the war is lawful in international law, and b) once troops have been deployed and soldiers have died in action, to conduct a full impartial inquiry into whether the legality of the war has been diligently considered. Of course, the appellants only really wanted the second obligation stated by the House of Lords, but to that end, they needed to establish the first. The reason is this: it is settled law under the Convention that there must be a full inquiry if a) someone has died, and b) there is a possibility that the death was in some manner unlawful under Article 2 ECHR. That is obviously the case if the State has killed the person, but also if the State has failed to take appropriate protective measures. In other words, Article 2 must be engaged in order to give rise to an obligation to hold an inquiry. That is where the appellants failed before the House of Lords. The House decided that there was no obligation on the State deriving from the right to life to send its soldiers into war only where the legality of the war has been diligently considered. Continue reading →

 By Tobias Thienel

I have recently come across a very felicitous phrase that I would just like to briefly note here. It is in Judge Zupan?i?’s explanation of why ‘the enforcement of judicial decisions (…) is an essential and unchangeable element of the rule of law’, in his dissent in Nuutinen v. Finland (joined by Judges Pan?îru and Türmen). In making that argument, the Judge(s) said that ‘[o]ne must constantly keep in mind the original intent of all judicial conflict-resolution, which is to resolve by logic what would otherwise be resolved by arbitrariness, force, etc.’ This culminated in the following description of the rule of law: ‘The essence of the rule of law is that the logic of private force be replaced by the force of public logic.‘ Beautiful, isn’t it?

By Tobias Thienel

Some time ago, I reported here the case of Saadi v. Italy, decided by the Grand Chamber of the European Court of Human Rights (ECtHR) on 28 February. That case is most interesting for its clear – and, I would say, entirely correct, welcome and timely – clarification that the prohibition on torture and inhuman and degrading treatment is indeed absolute, even in the context of expulsions and extraditions. My earlier post was about that bit. But the case also contains some interesting observations on the law of evidence. I turn to those now, somewhat foreshadowing what I am going to have to say on this and other questions in a forthcoming article in the German Yearbook of International Law (on ‘The Burden and Standard of Proof in the European Court of Human Rights’). As will be recalled, the case was all about the prohibition of removing someone from the territory if that person faces a risk of being subjected to inhuman treatment in the State to which he is sent (Soering v. United Kingdom, paras. 85-91; Chahal v. United Kingdom, paras. 79-82). Of course, the question then arises: how do you prove that there is such a risk? Continue reading →

By the time you read this the fate of the free world may already have been decided by voters in Texas and Ohio. At least, to the extent that it matters whether Hillary Clinton or Barack Obama answers the phone at 3am. As things have heated up in the last few weeks, there is one issue that the candidates have been raising alot – NAFTA. In the last debate in Ohio both candidates promised to force Canada and Mexico to renegotiate NAFTA by threatening to pull out. Meanwhile,CTV news in Canada revealed that a senior Obama policy adviser spoke with Canadian officials at the consulate in Chicago and reassured them that all this talk about pulling out of NAFTA was just campaign rhetoric. But what could either candidate possibly mean?
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By Tobias Thienel

This morning, the Grand Chamber of the European Court of Human Rights decided the case if Saadi v. Italy, concerning the expulsion of a terrorist suspect to Tunisia. In argument before the Court, the Italian government and the UK government as intervener (Article 36(2) ECHR) had submitted to the Court that the protection from expulsion to a risk of torture or inhuman treatment in the receiving State (as stated, most prominently, in Soering v. United Kingdom, paras. 85-91) should not be absolute. Instead, so the argument particularly of the United Kingdom went, the risk of grave ill-treatment in the receiving State should be balanced against the danger the person concerned poses to national security. This submission meant that the UK (and Italy, which joined the British submissions in this respect) had to mount a full-blown attack on the Grand Chamber judgment in Chahal v. United Kingdom. There, the Court had held that the protection from expulsion under Article 3 was absolute, and that the behaviour of the person concerned was therefore nothing to the point, even if the person was a terrorist. The UK now argued that the Court should depart from Chahal (as clearly it could have done: Stafford v. United Kingdom, para. 68). Chahal, the UK said, had created serious difficulty for States in their fight against terrorism, in that it was no longer possible to protect society from foreign terrorists where they a) could not be deported (Chahal) and b) could not be tried due to a lack of evidence proving the commission of crimes beyond reasonable doubt. The UK further sought to deflect the force of the argument drawn from the absoluteness of Article 3: it submitted that in expulsion cases, the actual violation of the terms of Article 3 would happen in the receiving State, and not at the hands of the expelling State. The prohibition of expulsion in such a case was a positive obligation, added to the basic, negative and completely absolute prohibition of torture or inhuman treatment by the State itself. Positive obligations, the UK said, were not absolute. As might have been expected, the Court was having none of it. In a completely unanimous judgment, it reaffirmed that Article 3 ‘enshrine[d] one of the most fundamental values of democratic societies’ (its early case-law only spoke of ‘the democratic societies making up the Council of Europe’ – Soering, para. 88; of course, the extension is unremarkable), that it was without exception and could not be derogated from even in a public emergency (Article 15(2) ECHR). As in Chahal, the threat of terrorism could not call into question the absoluteness of Article 3. Continue reading →

By Tobias Thienel

The ECtHR yesterday gave an Advisory Opinion on a question related to the equal representation of the genders on its Bench. I have already commented on that. But in another (contentious) case decided yesterday, one of the judges (pictured) raised another issue of fairness between, or rather to, the sexes, which I would not want to keep from our readers. I will let the Judge speak for himself; the excerpt is from the ‘Personal Conclusion’ of the Partly Dissenting Opinion of Judge Borrego Borrego in Kafkaris v. Cyprus (para. 13):

I shall conclude my opinion with one final observation: in the judgment, from start to finish, all those who are mentioned are given the appropriate designation for their sex, with the exception of the judges and Registrar of the Grand Chamber. I object to the presentation of judges as sexually neutral individuals in a society made up of men and women. The distinction between the two sexes in relation to judges is expressly acknowledged in the Rules of Court, since Rule 25 § 2 requires the Court’s composition to be gender balanced. It is also a matter of concern to the Parliamentary Assembly of the Council of Europe, which advocates the presence of women on all lists of candidates for posts as judges of the Court. This has prompted the Committee of Ministers to request an advisory opinion. So the opinion on the sex of candidates for posts as judges will be given by judges who are presented to the public as sexually neutral. Any comment would, to my mind, be superfluous. But to avoid any confusion, I wish to point out that I belong to the male sex.

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