UEFA and the Military Salute Investigation – Part II

Yahya Kemal Aksu

Continued from Part I

General Principles of Conduct

According to the article 11 (1) of UEFA DC “Member associations and clubs, as well as their players, officials and members, and all persons assigned by UEFA to exercise a function, must respect the Laws of the Game, as well as UEFA’s Statutes, regulations, directives and decisions, and comply with the principles of ethical conduct, loyalty, integrity and sportsmanship.”Accordingly, 11 (2) (b) prohibits conducts insulting or otherwise violations on the basic rules of decent conduct, 11 (2) (c) prohibits the use of sporting events for manifestations of a non-sporting nature and 11 (2) (d) also prohibits conduct which brings the sport of football, and UEFA in particular, into disrepute. Continue reading

UEFA and the Military Salute Investigation – Part I

Yahya Kemal AKSU

Introduction

Within the scope of participation to UEFA European Football Championship (Euro 2020), in Qualifying rounds, Group H, Turkey played against Albania on October 11, 2019 and France on October 14 respectively. In both matches, after the team had scored goals, Turkish players displayed “military salute” gestures and accordingly UEFA has appointed an inspector in order to initiate disciplinary investigations with regard to “potential provocative political behaviour” nature of the gesture. Continue reading

Private Prosecutions for Criminal Offences in England and Wales: Time for a Code?

By Claire de Than and Jesse Elvin, City University London

c.de-than@city.ac.uk and jesse.elvin.1@city.ac.uk

 

In the English legal system, most prosecutions for criminal offences are brought by the Crown Prosecution Service (CPS), the prosecution service for England and Wales created in 1986 by section 1 of the Prosecution of Offences Act 1985. However, this Act did not abolish the historical right to bring a private prosecution: on the contrary, section 6(1) of the 1985 Act expressly preserves it, subject to certain controls. Thus, private prosecutions still occur today.  Continue reading

Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian


[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.

Somewhat Short of a Universal Jurisdiction

Universal Jurisdiction

Article 105 of the United Nations Convention on the Law of the Sea of 1982[1] allows any State either on the high seas, or in any other place outside the jurisdiction of any State, to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board as to decide upon the penalties to be imposed, and to determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.[2] This rule which has been codified only in the XX century is called ‘universal jurisdiction’ or the ‘universality principle’.[3]

However, as of today despite the universal acceptance of this rule as one of the oldest international customs[4] the issue of the practical implementation of the universal jurisdiction of states based on the aforementioned principle is extremely serious. In the absence of clear legal regulations governing its use, universal jurisdiction not only reduces the effectiveness of international struggle against piracy but in many cases is a limiting factor.

The universality principle is a unique legal phenomenon: in contrast to other types of international jurisdiction, universal jurisdiction is not based on the idea of sovereignty or acquiescence of a state, rather it strives to overcome them. Therefore, universal jurisdiction is often defined as one that might be exercised by a state against the will of others who possess either territorial or other forms of jurisdiction. The universal jurisdiction doctrine stems from the fact that some crimes are so dangerous both for each and every state and international legal order in general that their perpetrators should not enjoy impunity by resorting to the principle of respect for state sovereignty and inviolability of borders.[5]

Up-to-date, the vast majority of scholars are of the view that piracy is the only crime whose universal jurisdiction enjoys customary status. However, despite the fact that universal jurisdiction over piracy has existed for years there has been an extremely small number of judicial cases on piracy initiated by resort to this principle. Unfortunately, the fact that many states still do not allow their courts to exercise universal jurisdiction over pirates only worsens the situation.[6]

Moreover, any state which has such a jurisdiction may voluntarily abandon it in favor of another state.[7] Given such a situation, a fair state abandoning its jurisdiction would assume that the requiring state has a jurisdictional priority, whereas an unfair state would consider the feasibility of its actions on bringing the perpetrators to justice instead of being guided by the aim of protecting its citizens or fulfilling its international obligations. In any case the result will be the same: criminals might remain at large and continue their criminal craft.

The principle of universality is enshrined in miscellaneous international acts which theoretically should facilitate its implementation. However, in practice, the existing legal regulations are not sufficient as either to construct the mechanism of appropriate actions or to clarify the meaning of the principle. In this regard the work of the International Law Commission[8] on the synthesis of current practices and the development of common criteria for its contemporary use is deemed to be of an extreme importance.

Yet, the paradoxical situation related to the criminal jurisdiction still remains. Whereas some criminal offences entail the will of several states to exercise their jurisdiction over it, piracy as a crime of serious concern to international legal order does not enjoy the same privilege whilst states refuse to exercise jurisdiction referring to the existence of a right rather than an obligation. Thus, by avoiding proper action states actually shift the burden of punishing those responsible for piracy to states whose vessels or citizens will become victims of this crime the next time it happens. As a result, the principle which was conceived as a guarantee of the inevitability of punishment in practice turns into an instrument enabling states to avoid their international and domestic obligations.

Written by Jan Guardian


[1]       UN General Assembly, Convention on the Law of the Sea, 10 December 1982 [online][accessed 29 December 2012].

[2]       Ibid., art. 105.

[3]       For more information on universal jurisdiction, see: E. Kontorovich, A Positive Theory of Universal Jurisdiction. George Mason Law & Economics Research Paper No. 04-25, Arlington, VA: GeorgeMasonUniversity, 2004.

[4]       W. B. Cowles, Universality of Jurisdiction over War Crimes. 33 (2) California Law Review 189 (1945).

[5]       Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, PrincetonUniversity Press, Princeton, 2001, p. 16.

[6]       E. Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45(1) Harvard International Law Journal 183 (2004).

[7]       See e.g.: A-G Israel v Eichmann , Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 291, para. 12(d).

[8]       UN General Assembly, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee. GA/L/3415, Sixty-sixth General Assembly, Sixth Committee, 12 October 2011 [online][accessed 29 December 2012].