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February 5, 2013

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IHL, Law of War, Security Council, Terrorism

Targeted Killing: Bin Laden As a Legitimate Military Target

WRITTEN BY: DR. ELIZABETH BORG[1]

 

Introduction

After Israel made public a policy of ‘targeted killings’ of alleged terrorists in the Occupied Palestinian Territories[2] this term became common usage, however, it is neither defined under international law nor does it fit into any particular legal framework. According to a UN special report[3] targeted killings are premeditated acts of lethal force employed by States in times of peace or during armed conflict to eliminate specific individuals outside their custody. Moreover according to Melzer targeted killings can be defined as a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary) and deliberate.[4] Examples of targeted killings include the November 2002 killing of alleged al Qaeda leader Ali Qaed Senyan al-Harithi and five other men in Yemen, reportedly by a CIA-operated Predator drone using a Hellfire missile[5] and the January 2010 killing, in an operation allegedly carried out by 18 Israeli Mossad Intelligence agents, of Mahmoud al-Mahbouh, a Hamas leader, at a Dubai Hotel.[6]  In this case, Osama Bin Laden was individually selected and intentionally targeted and killed by the United States[7] by means of a helicopter raid after months of decision making and planning. Hence, the killing of Bin Laden can be qualified as a targeted killing.

Targeted Killings and International Law

In a speech on the Obama Administration and International Law, Harold Koh[8] maintained that ‘as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.’[9]

Article 2(4) of the UN Charter enshrines the prohibition on the use of force[10] however Article 51 of the UN Charter provides an exception[11] of self-defence and allows recourse to force on the territory of the State which was responsible for the armed attack on the territory of the Victim State. Moreover, it has been generally accepted in today’s paradigm on the use of force that the ‘armed attack’ does not necessarily have to be attributable to a State, but can also be carried out by a non-State actor[12] although apprehensions exist as to whether a State can use force in self-defence against the territory (‘Territorial State’) where the non-State actor may be present. For example, in the Case concerning armed activities on the territory of the Congo the ICJ held that Uganda did not have the right to exercise self-defence against the DRC because:

there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3(g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC. Thus, the lack of attribution between the non-State actors and the government of the DRC served as the inhibiting factor for Uganda to exercise self-defence. [13]

Additionally the dispute of whether, prior to the use of counterforce, consent is needed from the TerritorialState arises.  As a general rule, prior consent from the TerritorialState should be a prerequisite to the use of extraterritorial force on its territory. In the light of these circumstances, a limited exception to this general rule may be allowed when there is an immediate necessity to use force to either halt or repel an armed attack.  Nonetheless, formally requesting consent might not be practical, especially if armed attacks are on-going from the territory of the TerritorialState or, more controversially, when a State wishes to invoke pre-emptive self-defence. Under the Bush administration, the US had openly maintained that the ‘inherent right to self-defence’ encompasses anticipatory self-defence according to existing principles of customary international law.[14] Traditionally, the Caroline incident[15] has been recognized as the classic formulation of the right to anticipatory self-defence.[16] The above implies that if States believe they have the right to use pre-emptive self-defence against non-State actors, there must be unequivocal evidence that the threat is imminent and that the use of force is absolutely necessary in order to halt or repel the impending armed attack.[17]

Referring to Koh’s statement claiming the US is in an armed conflict with al-Qaeda, it was argued by the US that this armed conflict in Afghanistan could spill over onto Pakistan.[18]Assuming this is the case then International Humanitarian Law[19] applies, thus one needs to determine whether this conflict is of an international or non-international character so as to identify the body of rules that applies. The ICTY[20] in the Tadić Judgment defined armed conflict [21] implying that a higher threshold of violence is required for the classification as a non-international armed conflict[22] than an international armed conflict.[23] The latter is satisfied ‘whenever there is a resort to armed force’, whilst the former requires ‘protracted armed violence’ and the membership of an ‘organized armed group’. Although Koh does not explicitly classify the conflict, he mentions Common Article 3,[24] Additional Protocol II[25] of the Geneva Conventions[26] and Hamdi v. Rumsfeld.[27] These suggest that the current US position views the conflict as NIAC.[28] Both types of conflict will now be examined, concentrating upon the principle of distinction.

International Armed Conflict

Under the principle of distinction, the parties must distinguish between combatants and civilians, military and non-military targets. Article 43(2) of Additional Protocol I[29] states that members of the armed forces of a Party to a conflict are combatants having the right to participate directly in hostilities. However, it is difficult to classify al-Qaeda members as combatants because they are not part of the armed forces of a State nor do they fulfil the four conditions laid out in Article 4(A) (2) Geneva III[30] especially since the underlying premise of terrorism involves acts which are contrary with the laws and customs of war. The implication is that a terrorist is a civilian, and can only be the object of attack ‘for such time as they take a direct part in hostilities.’[31] For example, Cassese believed that under IAC, members of terrorist groups are to be regarded as civilians.[32] This is also reflected in the ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities.[33]  The ICRC Guidance states that:

In order to qualify as direct participation of hostilities, a specific act must meet the following cumulative criteria: 1. the act must be likely to adversely affect the military operation or military capacity of a party to the armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and the detriment of another.[34]

 

Another controversial issue is the status of unlawful combatant in IAC. Chief Justice Barak of the Israeli Supreme Court held that terrorists and their organizations in armed conflict of international character with Israel do not fall into the category of combatants, as ‘they do not belong to the armed forces, and they do not belong to units to which international law grants status similar to that of combatants. Indeed, the terrorists and the organizations which send them to carry out attacks are unlawful combatants. They do not enjoy the status of prisoners of war. They can be tried for their participation in hostilities, judged, and punished.’[35]

 

Non-international armed conflict

Article 1 of Additional Protocol II states that a NIAC is a conflict between the armed forces of a High Contracting Party ‘and dissident armed forces or organized armed groups.’ Meanwhile, Article 13(2) of Additional Protocol II states that ‘the civilian population as such, as well as individual civilians, shall not be the object of attack,’ whilst Article 13(3) states that ‘civilians shall enjoy the protection […] unless and for such time as they take a direct part in hostilities.’ This protection is also emphasised by the ICRC Guidance[36] which makes a difference between ‘organised armed groups’ and dissident armed forces[37]suggesting that members of organized armed forces of a non-State Party, e.g. al-Qaeda, are only those who assume a continuous combat function. In view of this one concludes that individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities[38] are assuming a continuous combat function and not entitled to combatant privilege.[39] Additionally, an individual recruited, trained and equipped by such a group to continuously and directly participate in hostilities on its behalf can be considered to assume a continuous combat function even before he or she first carries out a hostile act.[40]

 

International Human Rights Law (IHRL)

In the absence of an armed conflict, the legal regime which applies is IHRL.  Alston observes that a law enforcement or state killing is only legal if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).[41]  Another issue that arises is whether the International Covenant on Civil and Political Rights (1976)[42] has extraterritorial applicability. According to the Human Rights Committee, as declared in General Comment 31,[43]Article 2(1) of the ICCPR[44] should be read that each State party would have assumed its obligations under the ICCPR to ‘all persons within its territory’ and ‘all persons subject to its jurisdiction’ and ‘anyone within the power or effective control of that State.’  In view of the fact that Bin Laden was present in Pakistan where the US had no territorial control, the question is whether the US by virtue of the attack had power and effective control over him. It is hard to argue that targeting someone with the intention to capture or use lethal force against them does not amount to an exercise of power or control. The right to life can be regarded as a peremptory norm of customary international law. The right to a fair trial and the presumption of innocence are enshrined as principles in customary international law. This could imply that the United States is obligated to respect Bin Laden’s right to life and the due process of law.

Conclusion

Ultimately, it can be concluded that it is difficult to give a definitive judgment as to the legality of the use of lethal force against Bin Laden due to the lack of certainty of facts of the operation as well as a paucity of a definitive stance on targeted killings under IHL. One must also see which body of laws applies, i.e. IHL or IHRL. If the latter applies the use of lethal force must be absolutely necessary, proportional and thus the undesired last resort. The operation must be conducted in a preventive nature as opposed to punitive nature in order not to amount to an ‘arbitrary’ deprivation of life.[45] In view of the analysis made above, IHL of a NIAC applies meaning that the principle of distinction as well of self-defence must be examined in such a light.  The inherent self-defence serves as a justification for the extraterritorial use of force against a non-State actor in another State. Although Pakistan was not informed beforehand of the operation, and hence no consent was given, Pakistan’s reaction was a very cautious and it did not condemn the US’s actions.[46] This raises the question of precedent and whether cognisance of targeted killing proves the emergence of an internationally customary rule however this is not the case.[47] The legal justifications for self-defence claimed by the US, as explained in Koh’s speech,[48]  are : (i) that under IHL, Bin Laden is a legitimate target; (ii) that he was an imminent threat to the United States. Thus, Koh believes ‘there is no question that he presented a lawful target for the use of lethal force.’ In view of the above, the armed conflict is a result of counterforce to the 9/11 attack however the inherent right to self-defence suggests that force can also be used as a prevention to further attacks.  It can be inferred that because of the nature of this particular operation, the ‘porous frontier’[49] of Afghanistan[50] and Pakistan, Bin Laden being an integral part of al-Qaeda, being significantly responsible for 9/11 and other armed attacks, possibly planning further terrorist attacks, makes Bin Laden a legitimate target as a civilian with DPH as well serves as a justification for self-defence. However, this justifies the use of extraterritorial force, but not the lethal use of force against a targeted individual. The latter has to be examined in view of civilian DPH or membership in an organised armed group.  The fact that Bin Laden was widely recognised as having a leadership position within Al-Qaeda, as well as past experiences and events, fulfils the requirement for a lasting integration into an organised armed group as above-mentioned.  Melzer has argued that ‘in practice, a civilian who regularly and consistently directly participates in hostilities of a belligerent party will almost always be affiliated with an organized armed force or group and, thus, may be regarded as a de facto member assuming a continuous combat function for that force or group. As such, he is no longer considered to be a civilian and loses protection against direct attack for as long as he continues to assume such combat function.’[51] Hence, in view of the above, Bin Laden fulfils the requirement for a lasting integration into an organised armed group making him a legitimate target. However, as the ICRC Guidance suggest, the targeting of Bin Laden must adhere to the principle of proportionality and necessity.[52]  The latter suggests that even if an individual may be targeted, non-lethal means should be contemplated in circumstances where it is possible to do so. If Bin Laden has resisted the assault and died as a result of a fire fight then most probably, only lethal forces could be used there and then.  One must also keep in mind the principle of military necessity requires that the lethal force used must be of a degree and kind, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the military operation, in this case the submission of Bin Laden, with the minimum expenditure of life and resources.

In conclusion, the military operation conducted by the US was not unlawful in respect of IHL of NIAC since the extrajudicial force used in Pakistan can be justified as self-defence and Bin Laden can be considered as a legitimate military target.

[1] Graduated as a lawyer from the University of Malta in 2010, Dr. Elizabeth Borg continued her studies by pursuing a LLM in International Crime and Justice with UNICRI, a United Nations Institution in Torino. Dr. Elizabeth Borg is currently a Lawyer at the Department of Industrial and Employment Relations and can be reached at dr.elizabethborg@gmail.com or  elizabeth.borg@gov.mt

[2]Orna Ben-Naftali & Keren Michaeli, We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int’l L.J. 233, 234 (2003).

[3] UN General Assembly Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 28 May 2010

[4] Nils Melzer, Targeted Killing in International law. Oxford University Press, 2008: ‘Deliberate’ meaning that the death of the targeted person is the actual aim of the operation as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims.

[5] Jane Mayer, The Predator War, The New Yorker, 26 Oct. 2009; Greg Miller, C.I.A. Said to Use Outsiders to Put Bombs on Drones, LA Times, 13 Feb. 2009.

[6] Targeted Killing in Dubai: A Mossad Operation Gone Awry?, Der Spiegel, 23 Feb. 2010, http://www.spiegel.de/international/world/0,1518,679764,00.html;

Ilene Prusher, Was Mossad Behind Dubai Assassination? Israel Foreign Minister Isn’t Saying, Christian Science Monitor, 17 Feb. 2010, http://www.csmonitor.com/World/Middle-East/2010/0217/Was-Mossad-behind-Dubai-assassination-Israel-foreign-minister-isn-t-saying

[7] Hereinafter referred to as ‘US’

[8] Legal adviser to the US Department of State

[9] Harold H. Koh’s speech at the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010 (hereinafter ‘Koh’s speech’), www.state.gov/s/l/releases/remarks/139119.htm.

[10] United Nations, Charter of the United Nations, 4 October 1945, 1 UNTS XVI, (hereinafter ‘UN Charter’), Art 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

[11]UN Charter, Art 51 ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security […].’

[12] Christian J. Tams, The Use of Force against Terrorists, 20(2) European JIL (2009), 359.

[13] Democratic Republic of the Congo v. Uganda,Judgment of 19 December 2005, ICJ Reports 2005, 168, 223, para.146.

[14] Richard K. Betts, U.S. National Security Strategy: Lenses and Landmarks, November 2004.

[15] Robert Y. Jennings, The Caroline and McLeod Cases, 32(1) American JIL (1939), 82.

[16]Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington, 24 April 1841, Secretary of State Daniel Webster called upon the British to show that the ‘Necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment for deliberation […] and that the British force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.’.

[17]Emanuel Gross, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an Act of Self-Defence: Human Rights versus the State’s Duty to Protect Its Citizens, 15 TempleICLJ (2001), 195.

[18] Noam Lubell, Extraterritorial Use of Force Against Non-State Actors, 2010.

[19] Hereinafter ‘IHL’

[20] The International Criminal Tribunal of the FormerRepublic of Yugoslavia

[21] ICTY Trial Chamber, Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, Case No. IT-94-1-AR72, ¶ 70: The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of territorialities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’

[22] Hereinafter ‘NIAC’

[23] Hereinafter ‘IAC’

[24] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 3116-18, 75 U.N.T.S. 31, 32-34 (hereinafter ‘Geneva I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 3320-22, 75 U.N.T.S. 85, 86- 88 (hereinafter ‘Geneva II’); Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3318-20, 75 U.N.T.S. 135, 136- 38 (hereinafter ‘Geneva III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3518-20, 75 U.N.T.S. 287, 288-90 (hereinafter ‘Geneva IV’).

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 1, 1125 U.N.T.S. 609, entered into force Dec. 7, 1978 (hereinafter ‘Additional Protocol II’).

[26] Common Article 3, Geneva Conventions, and Additional Protocol II, to which the U.S. is not a party, includes additional requirements, including that the conflict between the armed forces of the state and ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’  (Additional Protocol II).

[27] Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Al-Aulaqi v. Obama, a D.C. district court, in dicta, interpreted Hamdan as holding that the conflict was a non-international armed conflict. See Al-Aulaqi v. Obama, 727 F.Supp.2d at 17 (asserting that Common Article 3, applied by the Supreme Court in Hamdan, would prohibit the government from using lethal

force against al-Aulaqi were he to turn himself in).

[28] In Hamdi v. Rumsfeld, supra note 19, the US Supreme Court responded to the petition by the US government that the conflict with al-Qaeda was not a conflict to which the full protections afforded to detainees under the Geneva Convention by saying that ‘[w]e need not decide on the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3, because, like Article 2, it appears in all four Geneva Conventions […].’5

[29] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. (hereinafter ‘Additional Protocol I’)

[30]The four conditions imposed by the Geneva III are (a) being under responsible command; (b) wearing a fixed distinctive sign; (c) carrying arms openly; and (d) conducting their operations in accordance with the laws and customs of war.

[31] Article 51(3) of Additional Protocol I

[32] Antonio Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law

[33] Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Recommendation 1, ICRC, May 2009, (hereinafter ‘ICRC Guidance’). Recommendation 1 states that:  ‘For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participating in a levée en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in territorialities.’

[34]With regard to ‘direct causation’, the ICRC Guidance, pg. 52, states that ‘there must be a sufficiently close causal relation between the act and the resulting harm’; the ‘distinction between direct and indirect participation in territorialities must be interpreted as corresponding to that between direct and indirect causation of harm’; and, pg. 53, that ‘direct causation should be understood as meaning that the harm in question must be brought about in one causal step. Therefore, individual conduct that merely builds or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in territorialities‘. Ultimately, ‘only where persons are specifically recruited and trained for the execution of a predetermined territorialities act can such activities be regarded as an integral part of that act, and therefore, as direct participation in hostilities.’

[35] This is consistent with the Expert Opinion produced by Cassese who said (supra note 24): No ‘intermediate status’ exists between that of combatant and the status of civilian. A civilian who takes direct part in territorialities does not forfeit his or her civilian status but may become the lawful object of attack for the duration of his or her participation in combat. The term ‘unlawful combatant’ is a shorthand expression useful for describing those civilians who take up arms without being authorized to do so by international law; it has an exclusively descriptive character. It may not be used as proving or corroborating the existence of a third category of persons: in war time a person is either a combatant or a civilian; tertium non datur.

[36] ICRC Guidance, Part I, Recommendations of the ICRC, Recommendation II states ‘For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore entitled to protection against direct attack unless and for such time as they take a direct part in territorialities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function)’

[37] ICRC Guidance, pg. 33, :Membership for an organized arm group depends on ‘whether the continuous function assumed by an individual corresponds to that collectively exercised by the group as a whole, namely the conduct of hostilities on behalf of a non-State party to the conflict’, and as a result, ‘the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities.’

[38] Hereinafter ‘DPH’

[39] Additional Protocol I, Art 43.1, Combatant privilege, namely the right to directly participate in hostilities with immunity from domestic prosecution for lawful acts of war, is afforded only to members of the armed forces of parties to an international armed conflict (except medical and religious personnel), as well as to participants in a levée en masse. Although all privileged combatants have a right to directly participate in hostilities, they do not necessarily have a function requiring them to do so (e.g. cooks, administrative personnel). Conversely, individuals who assume continuous combat function outside the privileged categories of persons, as well as in non-international armed conflict, are not entitled to combatant privilege under IHL (see also ICRC Guidance Section X).

[40] ICRC Guidance pg. 34

[41] Philip Alston, The CIA and Targeted Killings Beyond Borders Philip, Public Law and Legal Theory Research Paper series , Working Paper No. 11-64 September 2011 pg. 16. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, preamble; Code of Conduct for Law Enforcement Officials, art. 3, GA Res. 34/169, Dec. 17, 1979.

[42] Hereinafter ‘ICCPR’

[43] CCPR/C/21/Rev.1/Add.13, 26/05/2004, General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant State Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.

[44] ICCPR, Art. 2.1 states that: ‘Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’

[45]ICCPR, Art 6.1 states that, ‘every human being has the inherent right to life. […] No one shall be arbitrarily deprived of his life.’ This represents a protection of life against interference by State Organs.’ However, the use of ‘arbitrary’ implies that this protection is not absolute.

[46] Dwyer, Devin, Osama Bin Laden Killing: Pakistan Reacts Cautiously to U.S. Raid on Its Soil. Available at: http://abcnews.go.com/Politics/osama-bin-laden-killed-pakistan-reacts-cautiously-us/story?id=13507918

[47] Customary international law arises out of State practice and in this case it is the US and Israel which mainly engage in targeted killing and they do so amidst widespread criticism. This illustrates that states do not view target killing as a peremptory norm of international law and there is no opinio juris in respect of the execution of targeted killings.

[48] Supra note 6: Koh states ‘Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. […] [T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender.’

[49] Ved. P. Nanda, War on Terror, 2009 37 Denv. J. Int’l L. & Pol’y 513, Nanda has observed that ‘one could justify the targeted strikes by the US in Pakistan on the ground that the geographical region of conflict stretches from Afghanistan to Pakistan, that suspected al-Qaeda and Taliban terrorists and their associates often cross that porous frontier, and that Pakistan has implicitly consented to such attacks.’

[50] Note that the US military team conducting the operation on 1 May 2011-2 May 2011 has reached Pakistan from Afghanistan.

[51] Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A response to four critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities.

[52] ICRC Guidance, Section IX, contains a requirement of necessity, by imposing a restraint on the use of force in direct attack: In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind of degree and force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.

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January 30, 2013

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Crimes Against Humanity, Genocide, ICTR, ICTY, International Criminal Court, Rome Statute, War Crimes

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The Issue of Consent in Rape Prosecution: International Tribunals and Indian Courts

Written by Garima Tiwari

(  http://www.tumblr.com/tagged/ptsd)

While India struggles to make amendments to the existing rape laws a brief look into how the International Criminal Court (ICC) and International Tribunals have dealt with rape would be interesting. A look at the Indian position in the same context would help understand how the process differs particularly with reference to the issue of ‘consent’.

Nicolas  Poussin’s  famous  painting the “Rape of the Sabine Women” depicts women  walking  away  arm-in-arm  with  their  rapists,  suggesting “that  the  abducted  women  soon  accepted  their   assailants  as husbands.” It is  not surprising  then,  that rape  and  other  forms  of sexual violence  emanating  from  war  have  historically  been undocumented  and unpunished crimes.  Rape has been viewed as a reward or “spoil of war.”‘[i]

The first international treaty implicitly outlawing sexual violence, the Hague Convention of 1907, did not end impunity for these crimes: after World War II, for instance, the International Military Tribunal at Nuremberg did not expressly prosecute sexual violence, and the Tokyo Tribunal ignored the Japanese army’s enslavement of “comfort women”. In 1949, the landmark Geneva Conventions stated: “Women shall be especially protected … against rape, enforced prostitution, or any form of indecent assault.” [ii] It was the two  ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), which, for the first time, dealt comprehensively with the crime of rape.

Position taken by ICTR

The Akayesu case[iii]  recognised that rape is an extremely grave crime as it can constitute genocide and a crime against humanity, providing that all the other elements for each of these crimes are met. Here the ICTR adopted a very broad definition of the crime of rape, which is defined as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’. It also dealt with sexual violence, a broader category which includes the more specific crime of rape, whose identifying elements are recognised as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to a physical invasion of the human body and may include acts which do not involve penetration or even physical contact’.[iv] Thus, in  Akayesu coercion was identified as the criteria for rape consent was irrelevant. The Semanza trial chamber[v] held that “the mental element for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.” In effect, rape went from being a physical act committed on the body of a victim to a psychic act committed in the mind of the perpetrator and the issue of lack of  consent became relevant. Kajelijeli[vi], followed Semanza and focused on non-consent and description of body parts when determining whether Mr. Kajelijeli should be held responsible for rapes committed by forces under his command. He was found innocent of rape and was not found guilty of genocide for the rapes his men committed. In the Muhimana case[vii] ICTR stated that, “coercion is an element that may obviate the relevance of consent as an evidentiary factor in the crime of rape.” In other words, the court ruled that most international crimes will be almost universally coercive—making true consent virtually impossible and therefore irrelevant for international prosecution.

The judgment and sentence in Prosecutor v. Karemera et al.[viii], issued recently by Trial Chamber III of ICTR secured the first international judgment to ever hold high-level government officials responsible for rape in such circumstances unlike as we will see what happened in Lubanga.[ix]

Proving rape in genocide (or other violent conflicts) using the Akayesu criteria would be relatively straightforward. Once the context of the violent conflict has been established, rape occurring within that context is assumed to be non-consensual. On the other hand, many rapes that would be provable under Akayesu would be difficult or impossible to prove under the Semanza definition. This would not only insult the victims but severely damage the credibility of the international tribunals for handling rape cases.[x]

Position taken by ICTY

The Delaliæ et al case aka Èelebiæi case[xi] case confirmed the approach that characterises the ICTR jurisprudence on the matter. In fact, the judges adopted the same ‘conceptual’ broad definition found in the Akayesu judgment. However, the ICTY in the Furundžija judgment[xii], adopted a more technical and specific definition. It qualified rape as an outrage upon personal dignity as provided for in Article 3 of the ICTY Statute (war crimes) and torture.The Furundžija definition (para. 185) represents the result of a peculiar approach followed by the ICTY, which involved looking at national jurisdictions to extrapolate what—due to the international lacuna on the matter—should represent a common perception of the elements of the crime. The outcome of this exercise was the following definition of rape, which is divided into two parts:(i) the sexual penetration, however slight:  (a) of the vagina or anus of the victim by the penis of the perpetrator or any other  object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person. Thus, here coercion and lack of consent both were needed. This amounted to reintroducing the relevance of consent for rape prosecution. In the  Kunarac et al case [xiii]it was held that rapes that occurred in a brothel-like setting in Foca were a form of enslavement. The court drew on the Furundzija decision and concluded that “sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim.” It put forward a definition whose elements could be generally recognised as essential by the most representative countries in the world. Therefore, once again, an in-depth research of national jurisdictions was carried out and the conclusion is a step beyond the Furundžija definition. Sexual acts are forbidden when perpetrated against the free will of a person, and the ‘use of force-threat’ element is reduced from the status of an element of the crime to a being evidence of the lack of consent of the victim to the sexual intercourse. The judges confirmed rape as a war crime and crime against humanity. Moreover, the act of rape was considered as one of the underlying acts for the crime of enslavement. Instead, in defining the elements of rape, the Foca Trial Chamber included a consent paradigm, permitting defendants to use consent to sex as a defense, which had been considered and excluded from previous Chambers. While the ICTY’s definition of consent laudably incorporates the notion of sexual autonomy, and is a liberal standard relative to consent requirements globally, the consent paradigm is inappropriate in conflict situations where rape is used as a weapon of war.

The Kvocka et al case [xiv]  reintroduced the requirement of the use of force as an element of the crime, together with the lack of consent. The Kunarac et al Appeal Judgement[xv] confirmed the previous definition given by Trial Chamber II in the same case. The Appeals Judges confirmed that the lack of consent is conditio sine qua non of the definition of rape and that the requirement of the use of force is not an essential element but rather a symptom of lack of genuine consent (para. 129).[xvi] The Appeals Chamber leaned toward the need to “presume non-consent” in contexts like genocide. In situations like Foca where women were held in rape camps, “such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”

As Catherine MacKinnon notes : No other crime against humanity, once other standards are met, requires that the crime be proved to be non-consensual. In fact, using victim’s consent as a defense would be bizarre. Consider a trial for murder within a genocide. How plausible would it be if a defendant claimed that, even though the act of killing took place within a setting of genocide, the victim had really wanted to be killed, so the perpetrator simply obliged? The reason that consent is not relevant for prosecuting rape in international crimes is that the crime takes place within a context where what we normally think of as sexual autonomy (at least for women) does not exist. Given the context of radical force, there is no true choice and so no consent in international crimes.[xvii]  Thus, ICTY and ICTR are both trying to presume non-consent in coercive situations which I think is very positive.

Position taken by ICC

The Statute of the International Criminal Court proves that the achievements of the ICTR and ICTY with regard to the prosecution of the crime of rape have been generally accepted by the international community. Article 7(g) of the ICC Statute specifically prohibits rape and, in addition, includes ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity’ within the notion of crimes against humanity. Moreover, paragraph (h) of Article 7 confirms persecution as a crime against humanity and includes gender as a new discriminatory ground. At paragraph 3 of the same Article it is further specified that the term gender is general in nature, thus referring to both sexes. Rape is also listed in Article 8 (b) (xxii)-1 as a war crime.     In the Elements of Crime annexed to the ICC Statute, the crime of rape requires the penetration of the anal or genital opening of the victim with an object or otherwise the penetration of any part of the body with a sexual organ, thus recalling the analogous first part of the Furundžija definition. Similarly, a reference to coercive situations capable to vitiate the genuine consent of the victim of rape is provided for in Article 7 (1) (g)-1 of the Elements.Thus, both coercion and consent have been discussed.

But the first judgment delivered by the ICC failed to give any help in this regard. In the Lubanga case, despite evidence pointing to wide spread rape and other forms of sexual violence against in particular girl child soldiers, the Prosecutor did not include crimes of sexual violence in the charges. The charges were brought under Article 8, war crimes, and as such could have included charges of torture, rape, sexual slavery or outrages upon personal dignity. The Trial Chamber noted that they chose not to amend the charges. The Prosecutor could have amended the indictment at any time prior to trial or even at a reasonable moment during the presentation of the prosecution case.

Judge Odio Benito, in her dissent, differed from the majority’ decision not to use the evidence of sexual violence as a means to define the legal elements of enlistment, conscription of children or use of children in hostilities as innate to their status as child soldiers. Judge Odio Benito’s reasoning related to the interpretation of the war crime charges at hand and, thus, was not conditioned upon the submission of further amended charges. Evidence or information certainly did come out during the trial concerning the widespread nature of the sexual violence that occurred when these children were conscripted and enlisted. To that extent the case highlights the sexual violence even though it has not been charged.[xviii] Various groups suggested later on that a failure to add more serious charges would run the risk of offending the victims and strengthen the growing feeling of mistrust of the work of the ICC and of the work of the prosecutor especially. [xix]

Rape Law in India

India’s current definition of rape is steeped in outmoded traditions, dates from 1860, and  has been amended only twice since then, in 1983 and 2003. In India,it is defined as intentional and unlawful sexual intercourse with a woman without her consent. According to section 375 of the Indian Penal Code, an allegation of rape has to satisfy the either of the following criteria: sexual intercourse between a man with a woman in the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication. If the woman is below the age of 16 years, sexual intercourse is deemed to amount to rape.  Even if the woman has consented, it would be considered rape under the law. There is however, an exception to this definition of rape.  Un-consented sexual intercourse between a man and his wife would not amount to rape if the wife is 16 years or older. According to section 376 of the Indian Penal Code, the minimum sentence for a convicted rapist is seven to 10 years, while the maximum sentence is life imprisonment. Gang rape carries a punishment of 10 years to life imprisonment. However, in certain situations a convicted rapist can get away with serving less time since the law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind. Under section 354 of the Indian Penal Code, sexual assault is described as “outraging the modesty of a woman” – a description considered archaic, subjective and limited by legal experts. Currently sexual assault crimes carry a maximum punishment of two years. [xx]

Thus, issue of consent and coercive situations both have been incorporated in the Indian law, but the application of law is not in tandem with the requirements of justice as what is consent is linked with various social, cultural and moral annotations along with the character and sexual history of the prosecuterix. In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, there’s only been one conviction out of 635 cases of rape reported in 2011.[xxi] This is also because, various social elements like the stigma attached to pre-marital sex, stereotyping as well as virginity play in the mind. This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which allowed defendants to offer evidence about a victim’s character and sexual history and remained there till altered as recently as 2002.  Changing law does not change much, since various practises and notions surrounding rape still stem on the character of the victim, like use of the “two-finger test” being a sufficient testament of the history of sexual intercourse of the victim. Indian law is still based on the colonial times and ironically while Britain changed its rape law with time, we are still caught in the web of antiquity. Another important aspect is the mindset. According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a decade ago believed that “preservation of the family” should be a principal concern for women even in the event of violence in the home. And 51% believed that women who stay with abusive husbands are “partly to blame” for their plight. Some 68% felt that “provocative attire was an invitation to rape” and 55% felt that the “moral character of the victim” was relevant.

In the Mathura Rape case [xxii] the Supreme Court acquitted the two policemen who raped a sixteen year old girl on the grounds that the victim had no visible marks of injury and that she did not raise an alarm. Here consent has been implied from no resistance. In Mohd. Habib v. State [xxiii] the Delhi High Court acquitted a man who raped a seven year old girl, asserting that there were no marks of injury on his penis. The Court refused to take cognizance of the bite marks on the victim’s person and the fact that she suffered a ruptured hymen on account of the sexual assault. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.  In State of Punjab vs. Gurmit Singh[xxiv] , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character. The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar [xxv] , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.” Thus, character, and prior sexual history does not imply consent. In some cases the Supreme Court has also observed that sex with the consent of the girl on a promise to marry her will not constitute rape unless it was shown that such consent was obtained by the man under coercion or threat.[xxvi]

The Mathura case is relevant because a minor change in the law did take place in 1983, focussing on custodial rape in which it would no longer be necessary to prove lack of consent. This is similar to the situation of coercion as used in the International tribunals for the situation is such, wherein the victim is unable to retaliate, consent would not be needed. This has been provided under Section 114A of the Indian Evidence Act 1872 as presumption of no consent.

Justice Verma Committee, formed as a response to the Delhi Gangrape incident, recommends inclusion of marital rape thereby highlighting marriage does not given unequivoval right over the body of the other, and consent remains relevant. The Criminal Law (Amendment) Bill, 2012, widens the ambit by replacing the word rape with sexual assault .While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment though brings under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”. The definitions are also making the law gender neutral. Thus, consent in all such cases would be looked into.

Conclusion

As seen above, both in Indian law and international law, two criteria are used to identify rape: Coercion and non-consent.[xxvii] Indian law includes both in some way yet, consent is sometimes judged with eyes of stereotyping. Some countries, may adopt either of the two. The trend of ICTR and ICTY more towards looking at the situation as coercive, because of the nature of events and placing consent irrelevant in such circumstances of war and conflict.

There are several ways that the international crime of rape may be different from some national definitions of rape. There are a important legal and procedural protections offered to rape victims by most international courts which are mostly absent from national courtrooms, such as permitting in camera testimony and not permitting attacks on the victim’s credibility through probing their sexual relationships. The tribunals have also taken positive steps to ensure victims of sexual violence can testify without retribution or fear for their safety. Through the development of its rules of procedure, the ICTY has sought to protect the victims of sexual violence from abusive lines of questioning during testimony. Witnesses can also testify under a pseudonym, with face and voice distortion in video feeds, or in closed session. Thus, the procedural  rules  in  the ICTY  and ICTR,  and  ICC,  allow  for  judicial  discretion  in  granting  witness anonymity. Again, in wartime rape  crimes,  identity  does  not become  a  crucial factor,  as  it  does  in  regular  domestic  rape  cases. Furthermore, as is clear from above discussion, international criminal law does not revolve around the issue of consent to the same extent as it does in many national settings.

Even though a lot can be learnt from the various procedural and legal protections offered by international tribunals, the issue of consent has to be studied differently in different national systems whose national, religious, cultural and political ideologies infuse the laws.

[i] Patricia H.  Davis, Comment, The  Politics of Prosecuting Rape as a  War Crime, 34INT’LLAW 1223,1226  (2000)

[iii] Case No. ICTR-96-4-T, 2 September 1998

[iv] Akayesu, para. 688,Musema, case No. ICTR-96-13, at para. 965

[v] Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence (May 15, 2003)

[vi] The Prosecutor v. Juvénal Kajelijeli (Judgment and Sentence), ICTR-98-44A-T, International Criminal Tribunal for Rwanda (ICTR), 1 December 2003, available at: http://www.unhcr.org/refworld/docid/404466007.html %5Baccessed 30 January 2013]

[vii] The Prosecutor v. Mika Muhimana, Case N° ICTR-95-1B-T

[viii] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T (issued on 2nd February 2012)

[x] MacKinnon, Catherine A. 2006. “Defining Rape Internationally: A Comment on Akayesu.” Pp. 237-246 in Are Women Human? Catherine MacKinnon. Cambridge, MA: The Belknap Press of Harvard University Press.

[xi] Case No. IT-96-21-T, 1998

[xii] Case No. IT-95-17/1-T, 10 December 1998

[xiii] Case No. IT-96-23 and IT-96-23/1, 22 February 2001)

[xiv] Case No. IT-98-30/1, 2 November 2001; ( paras. 177-178).

[xv] Case No. IT-96-23 & IT-96-23/1 A, 12 June 2002 paras. 125-133),

[xix] “Obtaining further charges in the opening case against Thomas Lubanga”, Statement by women’s rights and human rights NGOs of the DRC on the prosecutions by the ICC, Beni, September 16, 2006

[xxii] 1978) CrLJ 1864 SC

[xxiii] (1989) CrLJ 137 Delhi

[xxiv] (1996) 2 SCC 384

[xxv]  AIR 1991 SC 207

[xxvii] Supra Note 10

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January 15, 2013

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Human Rights, International Tribunal, Special Court for Sierra Leone, STL, Terrorism

Why it may be time for Truth and Reconciliation for the STL and Lebanon

WRITTEN BY: SEVANE TADEVOSSIAN[1]

In this post I explore the question of whether the Special Tribunal for Lebanon (STL) could benefit from the establishment of a Lebanese Truth and Reconciliation Commission (TRC). The establishment of a TRC may be particular useful with regards to its (1) legitimacy, (2) outreach, and (3) rule of law.  To understand the very mixed and complex cultural background where a new tribunal is trying to settle in, it is crucial to have an understanding of the specificity of Lebanon. Indeed, the country has suffered a violent civil war which started in 1975 and lasted more than ten years. Lebanon was occupied by Syria starting in 1982, and Syrian troops were finally withdrawn in 2006, following UN Resolution 1559. However, Syria kept powerful influences in Lebanon through the Hezbollah, a Shia party.[2] There is a multitude of religious groups linked to political parties in Lebanon, the main ones being the Sunni Muslims, the Shia Muslims, the Maronite Christians, the Greek Orthodox, the Druze, and so forth.[3] It is in such a fragile and diverse context that the Special Tribunal for Lebanon (STL) is trying to bring justice and stability to the country.

On 14 February 2005, a suicide car bomb killed the former Lebanese Prime Minister Rafiq Hariri and 22 others persons. In response, the United Nations (UN) Security Council (SC) created on 7 April 2005 the International Independent Investigation Commission (UNIIIC) to investigate this terrorist attack. Following these investigations, the UN, in cooperation with the Lebanese government, decided to sign an agreement (the Agreement[4]) to create a Special Tribunal for Lebanon. The latter has a mandate to indict the perpetrators of the 14 February 2005 attack, as well as the perpetrators of eventual subsequent attacks as long as they would be linked to the first attack and would resemble it in terms of its methods and motives. Unfortunately, political killings are very common in Lebanon, thus increasing expectations that the STL finally will help with the peace restoration within the country.

The Special Tribunal for Lebanon is the last tribunal to have entered the world of international criminal justice. It differs from other similar instances due to its uniqueness, both because of its structure and its mode of functioning. However, the existence of the STL is hotly disputed because of its partial inactivity five years after its entry into force, and especially because of its very poor reception by the Lebanese population.

Legitimacy

One of the main issues of the STL is the debate on why it was established, i.e. questions regarding its legitimacy, as some critics have justifiably stated that the STL is the incarnation of selective justice in the sense that it is only created to find truth and justice for a Prime Minister. Where the STL’s legitimacy, and de facto credibility, is most exposed within the Lebanese population itself and this fact contributes to hindering national reconciliation. Undeniably, the STL divides the population into two camps: for and against the STL.[5] Sunnis and Christians, who form the “March 14 movement,” support the STL, placing high hopes in it to fight against impunity and finally see an end to political assassinations in Lebanon.[6] For both the Sunnis and the Christians, the STL has a symbolic value. On the contrary, the “March 8 coalition,” consisting of the Shia parties Amal and Hezbollah, vehemently oppose the existence of the STL because they suspect it of being an instrument of foreign political powers.[7] Thus, the STL is facing many challenges to its general acceptance by the Lebanese population, particularly owing to the local perceptions from a historical and political context tinged with a long recent civil war.[8] Its legitimacy is flawed, as notes Sheikh Mohamed Hussein Fadlallah:

“How can this tribunal achieve legal results and establish judicial rights when it is rejected by a large segment of the Lebanese population and by Syria? How can its resolution be implemented without creating tension? When we see that the states pushing most for this tribunal are the US, the UK and France, the big question is whether their aim is really to bring the truth or to introduce their interests in the region through it?”[9]

Therefore, I believe it is fundamental for the STL to clearly face the fears and allegations of its critics, first, in order to be able to carry out its mandate thoroughly, and second (if not above all), to calm the tensions it has created within the Lebanese population. Indeed, I think that beyond its mandate, is it also the STL’s duty to bring peace to Lebanon as the mandate of the STL is basically an order to establish justice and peace, albeit limited to the Hariri case but implicitly to the rest of the country as well, knowing the implications of the Hariri case.[10] Besides, the Security Council (SC) established the STL at Lebanon’s request. Therefore, it means that the Lebanese government is searching for specific goals within the convention signed with the SC. Indeed, the SC granted the Lebanese government’s wishes by agreeing to a convention, but the true desire of the government was not only tied to the Hariri case: it was a national plan to find justice. And there is no need to look too deeply into the matter to come to the conclusion that it was made with a view to bring violence and impunity to a halt in order to finally achieve peace and security (the involvement of the SC under Chapter VII of the Charter makes it even more obvious).

At the end, the true issue comes down to ownership. Only the feeling of ownership of the STL by the Lebanese population will establish its much desired acceptance, legitimacy, and credibility. As one scholar stated, “the question of ownership of the tribunal is the decisive question. First and foremost, such a tribunal has value only to the degree in which societies see it as an essential component to clarify past crimes and to rebuild trust in the institutions and improve the rule of law. This being said, the work of a criminal tribunal – even when it is highly successful – is a long process. Nuremberg trials have been perceived from 1946 to the mid-sixties at being a tribunal of victors. It has taken a generation in order that the legacy of the Nuremberg trials became part of the German ethos. To believe that the Hariri Tribunal will be a quick fix to create a common narrative among Lebanese would be a major mistake.”[11]

It tastes bitter to admit that these comments made in 2007 turned out to be true and continues to be so to this day.

Outreach

Outreach is widely connected to legitimacy. Indeed, without a good outreach policy, no explanation can be given concerning legitimacy or further concerns, thus keeping the STL misunderstood. But from this misunderstanding also stems the lack of credibility, the possibility of political manipulations, and so forth. Therefore, it is completely in the STL’s interest to develop outreach towards the Lebanese population, and to be at service for any questions or concerns the Lebanese might have, as at the end of the day, the STL was established to bring justice, peace and stability to the country. And no peace and stability can be maintained in Lebanon if its own population has serious reservations and legitimate doubts about the most important symbol of justice in the country. Even if the STL has developed a strong social media network and its representatives have tried to integrate an international response to its issues, it seems like all these efforts are not enough to justify and convince the Lebanese population on its results, and most importantly on its future existence. Lebanon can get inspired by the process in Sierra Leone where their TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Legal culture against impunity: gaining respect for the rule of law

The STL could benefit a great deal from a Lebanese TRC. If a tribunal, i.e. the STL in our case, is the place where the rule of law is to be respected and implemented, it may not have an impact outside of the tribunal. Indeed, resulting from the meager outreach work of the STL, the lessons learned and the principles and values defended in the tribunal may not always be available for the other legal practitioners, let alone the population. It would be very useful and helpful for the Lebanese to set up an institution that would aide them on the workings of the STL, in terms of both its strengths and weaknesses: learn from its mistakes, construct from its successes. In my opinion, the Lebanese rule of law as well as Lebanese themselves would have a lot to gain from such a mechanism: a place where information and updates would be shared, and legal strategies could be discussed; a place where the STL jurists could exchange views with Lebanese jurists, the nationals learning from the internationals, and vice-versa. Indeed, it is not only up to the international jurists to train the local jurists, but maybe to even greater benefit the domestic Lebanese jurists could explain to the internationalized branch of the STL (the STL being a “hybrid” tribunal, i.e. a mix of local and international staff) the local legal culture and norms.

But in case of such an institution never seeing the light of day… could it be possible that local jurists as well as the Lebanese population both simultaneously and mutually strengthen respect for the rule of law via a TRC? If so, this would be a revival of the Lebanese will to fight against injustice. A TRC could be the perfect place where the STL would extend its work outside the persons concerned by its mandate, hence my belief that a TRC could be an interesting tool for the STL and the Lebanese situation as a whole.

The Special Court for Sierra Leone and its TRC

The TRC in Sierra Leone was established on July 7 1999, after the signing of the Lomé Peace Agreement (1999). The TRC “has been established through an act of Parliament by the government of Sierra Leone, [but it] will be an independent body. The commission was later enacted in 2000 by the President and Parliament.”[12] The TRC in Sierra Leone has two main goals: to investigate the violations, and to restore human dignity to the victims. Its specific mandate is the following: “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”[13]

Vargas states that “it is clear that the TRC is not a judicial body; however, since there is a Special Court for bringing to justice those who were the most responsible of violations during the war, the TRC can focus then in a catharsis to promote reconciliation and reduce conflict over the past and not necessarily in finding who the guilty are. The TRC is a fact finding body but with the additional responsibility of setting up a follow-up process to put the country together once more.”[14]

The Moroccan TRC

The Moroccan TRC, called the Instance Equité et Réconciliation (IER), was created on 7 January 2004 by King Mohamed VI to investigate human rights violations such as disappearances and arbitrary detentions that took place between 1956 and 1999 in Morocco. Besides bringing justice to the victims of these violations, part of its mandate is to produce a report on these violations and to suggest various forms of compensations and reparations to the victims. King Mohamed VI further asked the IER to formulate recommendations to help Morocco in preventing the repetition of such crimes.[15] However, some criticism was leveled since grave human rights violations such as torture were not in the TRC mandate. Such criticism is what the STL is currently experiencing on its selective mandate.[16]

Building Bridges Between Mechanisms

Building bridges by making links between mechanisms that have worked and the possibility of creating a TRC is where such a realization might be judged as realistic or not. It could be achieved by relying on concrete measures, tying theory to practice with some guidelines to follow and guarding against repeating mistakes using previous experiences.

Sierra Leone did not refrain from establishing a TRC despite the existence of a special court. Even if it meant that more money was to be spent in the judicial field and that some sectors would lack funding, the government chose to implement a second institution for the quest of truth and justice. No doubt, Sierra Leone was acutely aware that the prolonged division within the population and the feeling of fear, frustration and injustice would bring nothing positive to its future. For Sierra Leone, the resolution of the conflict had no cost. In the end, it is after all a matter of priorities, of which choices to make. I think that Sierra Leone did choose correctly. Lebanon should, for its own sake, take inspiration from Sierra Leone and not be stopped by the existence of the STL. Indeed, judicial apparel was established in Lebanon. However, when it comes to its efficiency, criticisms are being made. Hence the urgency to find some solutions and suggest a complement to its work.

Then, why not base the Lebanese example on the Sierra Leone case? After all, they both have special courts and Sierra Leone still established a TRC despite the existence of a tribunal similar to the STL. Vargas claims that both institutions, i.e. the SCSL and the TRC,   “were created to address, in their own particular way, the same events, and are functioning at the same time. At the end, what it is meant is to answer if this transition process can lead to both: peace and justice.”[17] In addition, Lebanon can get inspired by the process in Sierra Leone where the TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Each situation is unique and different. Therefore, I think that it is essential to first identify the challenges and issues, and then proceed with the best solutions fitting this and only this situation. The application of an ICT everywhere is not the answer, and the Lebanese example is the proof. It is important to include the work of not only psychologists, but sociologists and political scientists (in order to understand the sensitive issues in the region) to have a holistic approach and a vision as a whole. Indeed, if only jurists are involved in a process as huge as peace-building and reconciliation, no wonder the system is not working, as law and justice represent a part of the process. Maybe the most vivid example of such a mistake was in Iraq.[18]

CONCLUSION

There are quite a few unsolved issues with regards to the STL in Lebanon. Impunity and justice are still ongoing every day that passes by in which nothing is done to put a halt to them. It seems that Lebanon itself is unable to cure its own wounds, but this country managed to put its ego to one side and bluntly reached out to the international community for help. Thus, it is now the international community’s duty to provide relief in solidarity to the Lebanese population. The Lebanese population plays such a central role in the weight given to any political decision that this is why focus has to be made on the outreach of the STL. The STL needs the population’s support in order to fully complete its mandate. Therefore, its acceptance by the Lebanese is key.

Also, it is essential to keep in mind that the consequences of this tribunal are not limited merely to the legal field, but also apply to every aspect of Lebanese life. Indeed, if there is so much controversy around the STL, it is not because jurists are debating it all over the world. It is because its symbol has repercussions and meaning for everyone, not only in Lebanon, but also beyond Lebanese borders. It instills fear because it is the living proof that justice can be enforced by the SC in any situation, even for only one death. And then looms another fear: what kind of justice is that? Such darkness and misunderstanding generate violent reactions and understandable concerns. It is now up to the STL to face these fears, and I propose that it does so through its outreach and, why not, through a coordinated TRC? However, a TRC may not be the most appropriate option, and therefore further analysis of other forms of mechanisms is needed. No matter what form that mechanism would take, the key word is ownership, as without it any type of institution will fail in its task to make the population connect with the tribunal.

There is something more to be done in Lebanon. For the reasons exposed throughout this research paper, I think the establishment of a TRC that would complement and support the STL’s work is a viable idea. Hence, this eventuality could be explored by experts of transitional justice. To anticipate the Lebanese expectations and reactions, a referendum among the population could serve as a barometer of the reception of such an idea. Now is the time to put into full action the machinery of justice and to put all the chances on the tribunal’s side for the STL to work efficiently. As the former Prosecutor of the ICC Luis Moreno Ocampo states, “silence has never helped or protected victims. Silence only helps the criminals.”[19] Therefore, it is about time that the STL’s silence on the suffering of the Lebanese population ceases, and that finally a mechanism such as a TRC echoes the unheard victims’ voices.

[1] The author is a graduate of the UNICRI 2012, LLM program in International Crime and Justice. You can email the author for more information: sevane.tadevossian@gmail.com

[2] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.302

[3] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.27

[4] The Agreement between the UN and the government of Lebanon for the establishment of the Special Tribunal for Lebanon (in the « Annex » section of this paper)

[5] See interview with Fatima Sara, Elias Mirza and O. and Iloubnan.com, « Le Tribunal Spécial, un instrument pour susciter les tensions à l’intérieur du Liban », posted on http://www.iloubnan.info/politique/interview/id/48016/titre/Le-Tribunal-sp%C3%A9cial,-un-instrument-pour-susciter-les-tensions-%C3%A0-l-int%C3%A9rieur-du-Liban

[6] See interview with O. and Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1066

[8] See Corm, Georges, « Le Liban contemporain, Histoire et société » et « L’Europe et l’Orient, De la balkanisation à la libanisation, Histoire d’une modernité inaccomplie »

[9] Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1074

[10] See “Extracts” §2

[11] Hazan, Pierre, “Truth-Seeking and Justice in Lebanon and its Repercussion on the Conflict” in Expert Paper “Workshop 9 – Justice Mechanisms and the Question of Legitimacy: Concepts and Challenges”, p.5

[12] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.23; see also Romano, Cesare P.R., Nollkaemper André, Kleffner Jann K., “Internationalized criminal courts and tribunals : Sierra Leone, East Timor, Kosovo, and Cambodia”

[13] Truth and Reconciliation Act (2000), section 2 (b)

[14] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.25

[15] Human Rights Watch, “La commission marocaine de vérité : Le devoir de mémoire honoré à une époque incertaine”, p.2

[16] See section  « A mandate of selective justice » of this research paper, p.9

[17] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.2

[18] Hazan, Pierre, « La paix contre la justice ? », p.124

[19] DVD “The Reckoning, the Battle for the International Criminal Court” de Pamela Yates (2009)

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January 2, 2013

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Drug Trafficking, International Court of Justice, Law of the Sea

A Note On The ICJ Judgement In NICARAGUA v COLOMBIA and its relevance to International Crime and Criminal Law

Written by: Professor Steven Haines[1]

On 19 November 2012 in The Hague, the International Court of Justice (ICJ) handed down its Judgement in the case between Nicaragua and Colombia concerning the two States’ dispute over territory and maritime jurisdiction in the south-western region of the Caribbean.[2] The following day, Claire O’Neill McCleskey posted an article on the InSightCrime website in which she raised the possibility that the Court’s decision would have negative consequences in relation to the combating of serious crime in the region.[3]   What was it about the case that prompted this immediate reaction – and was that reaction justified?  Indeed, are there any international criminal law consequences of the Judgement?  The aim of this note is to provide a brief account of the case, its background and the manner in which the Court dealt with it, and to follow that up with some comment on whether or not there are likely to be significant consequences in relation to international crime and criminal law.

Background to the Case

The case was initiated by Nicaragua in December 2001.  Seventy-three years earlier, the 1928 Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some time after that there was no obvious dispute between the two States.  There were certainly no maritime boundary issues because, in 1928, the only cause for such would have been a dispute over overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100 nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several islands that were in very much closer proximity to the Nicaraguan coast than they were to Colombia’s.  Three island groups in particular – San Andres, Providencia and Santa Catalina – were habitable islands that were expressly dealt with in the 1928 treaty.  Today they are important tourist destinations in the region.  San Andres (pop: 70,000) is just over 100 nautical miles from the Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to the north east of San Andres and about 125 nautical miles from the Nicaraguan coast.  All three islands are in the region of 380 nautical miles from the Colombian coast.  Two other physical features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the provisions of the 1928 treaty but which Colombia has always since then regarded as its territory.  There was, though, some doubt as to the extent to which Quitasueno remained dry at high tide, a factor that the Court was required to consider.  If it remained above sea level at high tide, it would be classed as an island and would generate a territorial sea – although almost certainly not an EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).  If it was submerged at high tide it would not qualify for island status, would not be appropriable as sovereign territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the waters between the two States had not been a consideration and had not influenced the terms of the treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the region.  As the resources of the continental shelf emerged as a significant factor shaping the law of the sea in the second half of the twentieth century, however, the terms of the 1928 treaty increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the islands would have substantial impact as newly extended coastal state jurisdiction was established.  The location of the islands had the potential greatly to restrict the extent of Nicaraguan continental shelf and exclusive economic claims while at the same time giving Colombia a disproportionately large area of jurisdiction.  Nicaragua came to regard the situation as inequitable in the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that the islands at the heart of the dispute were three times as distant from the Colombian mainland as they were from the Nicaraguan.  The latter began to challenge Colombian sovereignty of the islands. The result was that the claims of both States to continental shelf and exclusive economic jurisdiction overlapped significantly and the dispute intensified as the potential for economic exploitation increased.

In very general terms, this is the historical background to the dispute (more detail can be found in the Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the case to the ICJ confident that the Court would award it sovereignty over key islands.  It then expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously claimed by Colombia.  Colombia, on the other hand, while reluctant to place the dispute with the Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it took so long.  The answer lies in a combination of procedural requirements, the need for the Court initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-Memorial; these were set for April and June 2003 respectively.  In July 2003, however, Colombia raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were duly suspended.  Public hearings on the preliminary objections were held in June 2007 and the Court handed down its judgement on these in December that year.  With one important exception (see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on the merits.  This was met and there followed a further round of deadlines for a Nicaraguan Reply (18 September 2009) and a Colombian Rejoinder (18 June 2010).  Public hearings on the merits were eventually held between 23 April and 4 May 2012, with the Judgement handed down six months later.

Maritime boundary disputes are frequently complicated by technical factors and this was certainly true in this case, in which hydrographic evidence concerning maritime features and tidal effects was submitted to the Court by both parties. Their representatives in the proceedings included both legal counsel and scientific and technical advisers, and each party challenged the other’s scientific and technical methodologies in the process.  The principal technical issues in focus in relation to the question of sovereignty were to do with whether or not certain physical features qualified as islands or cays, or were merely raised banks that only dried at some point below high tide. The precise physical characteristics of the features and of the tides that affected them were important in determining whether or not it was possible for either State to claim them as territory and whether they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf).  Following the determination of sovereignty, further technical details were to do with the construction of the single maritime boundary delimiting the two States’ continental shelves and EEZs.

While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and the technical issues were also complex.  The time was necessary for all of the details of the case to be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the delimitation by the Court of the maritime boundary between the two States.  One can see that Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its continental shelf and exclusive economic zone – the islands having a potentially significant influence on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its outcome.  The result was somewhat unexpected from the point of view of both parties.  To start with, the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty.  In effect, it was ruling in favour of Colombian claims to sovereignty over the islands.  It also confirmed Colombian sovereignty over various other islands, including Quitesueno and Serrana.  What it then went on to do was acknowledge the need, for reasons of equity, to grant no significance to Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ.  While Colombia has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian territorial enclaves within the Nicaraguan continental shelf and EEZ.  While welcoming the Court’s decision over sovereignty, Colombia effectively lost the case in the final analysis because of the extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.

The Impact of the Case on International Crime and Criminal Law

It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all.  As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force.  One narrow definition of ‘international criminal law’ is that implied in the Statute of the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Unless war were to break out between the two States, it is virtually impossible to imagine circumstances in which the case would have relevance to ICC-based criminal law.

Both Nicaragua and Colombia have accepted the Court’s Judgement, although the latter feels aggrieved by it.  Apart from initially challenging the ICJ’s jurisdiction, Colombia has subsequently been highly critical of its ruling.  Colombian president, Juan Manuel Santos, declared on 28 November that the Judgement was ‘unjust and erroneous’ and announced that his government would ‘no longer recognise the World Court in border disputes’.[4] He went on to say, however, that Colombia’s ‘emphatic rejection’ of the resultant maritime boundary would not result in any extra-legal action; it will only rely on international legal processes to challenge it.  It must be said that it is difficult to imagine what legal processes Colombia now intends to resort to.  The ICJ’s Judgement is final and there is no avenue for appeal against a Court Judgement, which is legally binding on the parties.  Despite post-Judgement rhetoric, Colombia has so far not acted irresponsibly in relation to it and remains within the law.  On current assessment, its disappointment with the Judgement seems unlikely to cause the dispute to rumble on, and certainly not to the extent that force will be deployed (which would raise questions concerning aggression and the application of the law of armed conflict/international humanitarian law).  We can reasonably hope that the dispute has been resolved peacefully and that both parties will respect that.

We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law.  If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences.  A broader definition arguably includes all serious crimes having a significant international dimension.  Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions.

One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics.  These activities are a seriously worrying feature in the Central American/Caribbean region, with Colombia itself a major source of illicit narcotics, with cartels like the Medellin, Cali and Norte del Valle extensively engaged in the production and export of drugs into North America, using maritime routes through the region.  It was the narcotics problem in the region that prompted McCleskey to post her article and to ask whether the Court’s ruling would be ‘Good news for drug traffickers’.  Her interjection was perhaps a little surprising, but it clearly demands some consideration, at the very least.

Unfortunate Consequences for Law Enforcement?

The thrust of McCleskey’s article was that the substantial reduction in the extent of Colombia’s maritime jurisdiction and consequential increase in Nicaragua’s, combined with the latter’s relatively weak navy, would undermine efforts to combat the narcotics trafficking activities of drugs cartels operating out of Colombian territory and using the waters off Nicaragua to traffic narcotics from Colombia to the United States (see map below).  A key consideration is that a number of criminal groups operating out of Colombia have recently been using sea routes through the San Andres islands.  This activity has been targeted by the Colombian navy but, McCleskey suggests, Colombia’s loss of jurisdiction over waters very close to the islands will undermine these efforts.  To quote from her article:

‘……the withdrawal of the Colombian Navy, from what are now Nicaraguan waters, may benefit drug traffickers operating in the region, among them the Revolutionary Armed Forces of Colombia (FARC) and the Urabenos, due to the comparative weakness of the Nicaraguan Navy. Colombia…..has a large, modernized navy, while Nicaragua’s navy is small and relatively low-tech.’

intersight

Source: www.InSightCrime.org

According to The Economist newspaper, in an article published on 8 December 2012, ‘Nicaragua celebrated (the Judgement) by dispatching ships to patrol its new waters. “By now [the navy has] established sovereignty in that whole territory,” said Daniel Ortega, its president’.  This comment was from an article that also included the map below.[5]  That map, as well as the title of The Economist article, makes reference to Colombian (and ‘former Colombian’) ‘territorial waters’.  When coupled with the quote from Daniel Ortega, in which he refers to the Nicaraguan navy having established ‘sovereignty in that whole territory’ judged by the ICJ to be within Nicaragua’s continental shelf and EEZ, an uninformed reader may gain the wholly erroneous impression that the waters in question now have the status of Nicaraguan territory.  The same impression is gained from a reading of McCleskey’s article on the possibility of the Court’s ruling advantaging Colombian drug cartels and those trafficking their wares.  The two articles reinforce each other’s fundamental misunderstanding of the juridical status of the waters subject to the ICJ’s Judgement.

The Economist

Source: The Economist, 8 Dec 12

The impression that may be gained from the two articles and the manner in which they have been presented is that law enforcement activities targeting drugs traffickers in the region will be significantly affected by the Colombian navy’s inability now to operate in those waters affected by the dispute before the ICJ.  This, to put if very simply and starkly, is just plain nonsense.  The authors of these two articles seem to lack an adequate level of understanding of the juridical nature of the waters in question.  The legal or juridical status of the waters is as continental shelf or EEZ.  These are both resource zones whose legal significance is restricted to activities of an economic nature.

There is absolutely nothing in the law of the sea preventing the Colombian navy operating throughout this region up to, but admittedly not within, the outer limit of the Nicaraguan territorial sea (which is a mere 12 nautical miles from the Nicaraguan coast).    Maritime law enforcement operations are not affected by the range of rights and obligations contained in the 1982 UNCLOS, the instrument that is the formal source of both continental shelf and exclusive economic jurisdictions.  The existence of neither continental shelf nor exclusive economic jurisdictions results in rights or obligations that significantly curtail naval operational activities.  Navies do have to operate taking into account the rights of those vessels engaged in legitimate resource exploitation activities, within both jurisdictions, but the chances of navies’ obligations in this respect resulting in any serious undermining of their ability to conduct drug interdiction operations are virtually nil.  The relevant parts of 1982 UNCLOS are also now widely recognised as forming a part of the customary international law of the sea and are, therefore, binding on all States – even those that are not themselves party to the convention.  Colombia has the right to deploy its navy up to the limits of the Nicaraguan 12 nautical mile territorial sea and, in order to give meaning to that right, Nicaragua is under a correlative obligation not to prevent it doing so.  The waters above the continental shelf and forming the EEZ are, for non-economic purposes, to be regarded still as having the status of the high seas.

Closing Remarks

One of the most worrying issues within the law of the sea at present is the potential for coastal States to assume rights and to impose obligations on others that are no part of the consensus arrangements that were codified in 1982 UNCLOS.  That convention was a package deal that balanced the extension and enhancement of coastal state jurisdiction with the freedom to use the high seas for navigation and other legitimate activities.  The suggestion that navies should remove themselves from other States’ areas of continental shelf jurisdiction or EEZs serves profoundly to undermine that balance and the pattern of rights and correlative obligations that define zones of maritime jurisdiction.  Statements, such as that made by President Ortega to the effect that the Nicaraguan navy had secured the new ‘territory’ granted to Nicaragua by the ICJ, are arguably irresponsible political rhetoric; they are arguably also deserving of some measure of challenge from other States.  When respectable internationally renowned publications like The Economist fail to use the correct terminology when describing issues of this nature, there is also a need for their errors to be highlighted; if they are not they may add to the gradual spread of erroneous assumptions about vital rights and obligations at sea.

This ICJ Judgement should in no substantial manner adversely affect the way in which the Colombian navy goes about its lawful business interdicting illicit narcotics traffickers in the waters of the south-western Caribbean.  Indeed, there may even be some hope of enhanced cooperation in the region now that this dispute is legally settled.  Both Colombia and Nicaragua have clear national interest in putting an end to this traffic through their waters – and the United States also has a major interest in supporting them both.  Perhaps now that the territorial and maritime boundary dispute is resolved, a responsible diplomatic approach by the US to bring the two parties together in a spirit of cooperation will see drug interdiction improved in these waters.  In resolving the dispute, the ICJ has probably done much to stabilise and normalise relations between Nicaragua and Colombia.  In the long term, far from benefiting the drugs cartels, this Judgement may well serve to create the conditions for a further curtailing of their activities.

[1]  Professor at University of Greenwich, United Kingdom

[2]   Territorial and Maritime Dispute (Nicaragua v Colombia), Judgement, 19 November 2012.

[4]   See article by Associated Press ‘Colombia’s president: We will no longer recognize World Court in border disputes’ at www.todaycolombia,co/2012/11/29

[5]    ‘An islet for a sea: Colombia smarts from a loss of territorial waters’, The Economist, 8 December 2012.

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December 30, 2012

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Jurisdiction, Law of the Sea, Piracy, Universal Jurisdiction

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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].