Public International Law Jurisdiction over People and Things

Public International Law Jurisdiction over People and Things
University of Ottawa Faculty of Law Part III: Jurisdiction over People and Things Craig Forcese

Public International Law
University of Ottawa Faculty of Law State Jurisdiction Over People & Things Distinction between state jurisdiction over territory (sovereignty over territory) and state jurisdiction over people and things Sovereignty over territory generally means sovereignty over people and things in that territory (with exceptions we will discuss) But states may sometimes also have jurisdiction over people and things that are not in their territory US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things Definition of “jurisdiction”: jurisdiction is a government’s powers to exercise authority over things and persons Problem of jurisdiction: people and things move between states and assorted states may have a legitimate interest in what happens to those people and things US Craig Forcese

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University of Ottawa Faculty of Law State Jurisdiction Over People & Things Starting point: S.S. Lotus States may not exercise power in the territory of another state This is the notion of “enforcement” jurisdiction: states generally may not enforce their laws outside their territorial boundaries But states may exercise jurisdiction in their own territory relating to acts that take place abroad This is the notion of “prescriptive” jurisdiction: states in some instances may extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Enforcement Jurisdiction Defined: State’s jurisdiction to enforce its rules States clearly have the jurisdiction to enforce their laws in the zone over which they have territorial sovereignty Generally, it would violate the sovereignty of other states for a state to enforce its rules in the territory of another state A state whose sovereignty is offended in this way would have a claim against the offending state Note, however, that national courts of many states take the view that even if the accused was apprehended in the territory of another state in violation of that state’s sovereignty, the court is not deprived of jurisdiction E.g., United States v. Alvarez-Machain US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Defined: A state’s powers to pass laws Clearly, states can pass laws to regulate affairs on their own territory But there are instances where state may regulate “extra-territorially”: Events Connected to the Territory: circumstances where part, but not all, of the impugned activity takes place on the territory (e.g., someone shots a gun across a border, hitting someone on the territory of another state) U.S. “effects” doctrine: United States may regulate where an entirely overseas action by foreigners has a sufficiently deleterious effect on the United States (e.g., its marketplace, in the context of anti-trust law) US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Nationality Principle: a state may pass a law regulating the overseas conduct of its own nationals Notion of “nationality”: clearly the nationality principle depends on an understanding of “nationality” Nationality of Individuals: jus soli (birth of the state’s territory); jus sanguinis (nationality by virtue of the nationality of one’s parents) Naturalization: acquiring nationality after birth Nottebohm Case: notion of a genuine factual link Corporations: Barcelona Traction: state in which corporation incorporated or has head office US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Passive Personality Principle: variant of the nationality principle, but here the state seeks to regulate an act committed abroad by a non-national in which the victim is a national E.g., German Penal Code US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Protective Principle: regulation of overseas conduct of the sort that jeopardizes the state’s key interests E.g. espionage, counterfeiting, conspiracy to violate immigration or customs laws US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Universal Principle: some crimes so heinous that irrespective of where they are committed, states may seek to regulate them E.g. crimes against humanity, war crimes, certain terrorism crimes, piracy US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Prescriptive Jurisdiction Canada’s Crimes Against Humanity and War Crimes Act Person may be prosecuted for offence if at the time the offence is alleged to have been committed, the person was a Canadian citizen or was employed by Canada in a civilian or military capacity; the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state; the victim of the alleged offence was a Canadian citizen; or the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict; after the time the offence is alleged to have been committed, the person is present in Canada US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Example Eichmann case (Israeli district and supreme courts) Eichmann apprehended in Argentina and spirited to Israel Prompted flurry of diplomatic protest from Argentina Israeli court held that the illegality of the means by which the accused was within its territorial jurisdiction not material Israeli court held that jurisdiction to prosecute Eichmann for acts that had taken place in Europe existed under something resembling a protective principle and also under the universal principle “Not only do all the crimes attributed to the appellant bear an international character, but their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations. The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction...to try the appellant.” US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Under this heading, we will discuss three broad areas in which state jurisdiction is constrained by international law, even on their own territory: Constraints on what a state can do to foreigners Constraints on the jurisdiction states can have over foreign diplomats Constraints on the jurisdiction states can have over other states US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners foreign nationals must comply with the state’s laws but international law demands that the state extend to these foreign nationals certain basic standards of proper treatment: states have to accord foreigners human rights, much as they have to accord their own nationals human rights international law accords extra special rights to foreigners setting a basic floor below which treatment cannot fall: Competing concepts of “national treatment” and “minimum treatment” US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Concept of “minimum treatment”: Neer case (U.S.-Mexico Claims Commission) to be a violation of international law, the treatment of the alien should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action falling clearly short of reasonable standards Modern standard likely higher Hinges on whether an act is unfair or unreasonable, inflicting serious injury to established rights of foreign nationals US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Concept of “minimum treatment”: Includes the concept of “denial of justice” injury consisting of, or resulting from, denial of access to courts, or denial of procedural fairness and due process in relation to judicial proceedings, whether criminal or civil. US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Expropriation: it is considered a violation of international law for a state to take the property of a national of another state that is not for a public purpose, or is discriminatory, or is not accompanied by provision for just compensation US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Expropriation: Developing country concept of “economic self-determination”: Charter of Economic Rights and Duties of States: every state has the right “to nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals...” US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Expropriation: Developing country approach rejected by capital exporting nations, which have insisted that the traditional rules remain customary international law Much of this debate probably superseded by the proliferation of Bilateral Investment Treaties US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Protecting Dual Nationals DFAIT Travel Advisory: Canadians with Iranian nationality should be aware that unlike Canada, Iran does not recognize dual nationality. Dual nationals have to enter Iran using their Iranian passports. The Canadian Embassy's ability to assist dual nationals is very limited. Naturalized Canadians who are Iranian by birth should be aware that the Iranian authorities could take an interest in them for reasons related to politics, security, property, or professional background. US Craig Forcese Ms. Zahra Kazemi

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Protecting Dual Nationals 1930 Hague Convention on Conflict of Nationality Laws Article 4: states may not afford diplomatic protection to one of its nationals against a state whose nationality such a person also possesses US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what a state can do to foreigners Protecting Dual Nationals But note: Very few members to the Hague Convention Probably should not be regarded as customary: Emergence of the Nottebohm concept: maybe genuine link to Canada entitling Canada to raise minimum treatment Emergence of human rights law: maybe erga omnes protection irrespective of nationality US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on what states can do to foreign diplomats Vital part of customary international law, codified by the Vienna Convention on Diplomatic Relations Who is covered: Article 1 of the Convention on Diplomatic Relations defines a "diplomatic agent" as the head of a diplomatic mission or a member of the diplomatic staff of the mission What is covered: immunity (inviolability)… from the exercise by the host state of jurisdiction to pass laws in relation to acts or omissions in the exercise of the agent's official functions from arrest, detention, criminal process, and, in general, civil process in the receiving (host) state Host states may resort to declaring diplomat persona non grata US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Usually an issue in judicial proceedings in one state Simple definition: sovereign immunity – state immunity – means that a state cannot be subject to another state’s enforcement jurisdiction Rationale: US Supreme Court in The Schooner Exchange: immunity is rooted in the "perfect equality and absolute independence of sovereigns." US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Types: Ratione personae: state immunity that exists by reason of the person concerned immunity exists to certain key representatives of the state – the foreign minister, the head of government or state etc. – so long as they hold office Ratione materiae: state immunity that exists by reason of the matter concerned matter is immune because it is a matter intimately connected to a foreign state problem of deciding when is a subject matter so identified with the state it should be immune Modern approach is to deny this immunity in commercial matters US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione materiae example: Pinochet case the majority concluded that the immunity of a former head of state persists only with respect to acts performed in the exercise of the functions of head of state, that is official acts, whether at home or abroad question of whether an act can be official where it violates international law (e.g., prohibition against torture) At the end of the day, the majority of the Law Lords found that torture cannot constitute an official act of a head of state (at least where the state had ratified the Torture Convention) US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione personae example: Belgium v. Congo case investigating judge of the Brussels tribunal de première instance issued "an international arrest warrant in absentia" against Mr. Abdulaye Yerodia Ndombasi, charging him, as perpetrator or co-perpetrator, with offences constituting grave breaches of the Geneva Conventions of 1949 Accused then foreign minister of Congo US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione personae example: Belgium v. Congo case Congo argued: The Belgian universal jurisdiction law was a "[v]iolation of the principle that a State may not exercise its authority on the territory of another State and of the principle of sovereign equality among all Members of the United Nations" "[t]he non-recognition of the immunity of a Minister for Foreign Affairs in office" constituted a violation "in regard to the . . . Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers". US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione personae example: Belgium v. Congo case ICJ: in international law, diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal a Minister for Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability US Craig Forcese

University of Ottawa Faculty of Law State Jurisdiction Over People & Things: Limits on State Jurisdiction Constraints on jurisdiction states can have over other states Problem of immunity vs. human rights: Ratione personae example: Belgium v. Congo case ICJ: under customary international law, there is no exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity But immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity US Craig Forcese

University of Ottawa Faculty of Law Human Rights: Introduction Human rights are a constraint on state jurisdiction Human rights must be viewed as representing a break from the statecentric model of international law US Craig Forcese

University of Ottawa Faculty of Law Human Rights: Introduction Starting point for discussion: Could begin well back in history But real evolution of international human rights law is a product of the Second World War US Craig Forcese

University of Ottawa Faculty of Law Human Rights Human Rights in the UN Charter Article 1(3) of the Charter lists as one of the purposes of the UN “promoting and encouraging respect for human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion” Article 55, for its part, specifies that in order to create stability and well-being for the friendly relations of nations, the UN will promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” Article 56 says that “all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth” in Article 55 US Craig Forcese

University of Ottawa Faculty of Law Human Rights Human Rights in the UN Charter Significance of human rights in the UN Charter: First, Charter internationalized human rights Second, the UN Charter human rights provisions have provided legal authority to the UN to engage in a massive project of defining and refining what exactly these human rights are Third, over the years, the requirement imposed on member state to “promote” international human rights has taken on some bite and meaning US Craig Forcese

University of Ottawa Faculty of Law Human Rights Human Rights in the UN Charter Charter-based human rights bodies: US Craig Forcese

University of Ottawa Faculty of Law Human Rights Universal Declaration of Human Rights UN Commission on Human Rights was asked to draft an international bill of human rights Concluded it was more expedient to begin with a non-binding declaration John Humphrey draft: drew on two traditions: the Anglo-American-French individual rights concepts and the more recent socialist and social-democratic concepts Cassin draft: elegant re-working of the Humphrey draft US Craig Forcese

University of Ottawa Faculty of Law Human Rights Universal Declaration of Human Rights Voted upon by the General Assembly Introduced by Charles Malik, Lebanon Each state could recognize its contribution or the influence of its culture in the final draft 48 votes in favour, 8 abstentions (almost all from Soviet bloc countries and also Saudi Arabia and South Africa) US Craig Forcese

University of Ottawa Faculty of Law Human Rights Universal Declaration of Human Rights Content: Compared to a portico by Cassin Art : Inform the document as a whole Art (Individual Rights) Art (Rights in the polity) US Art (economic, social and cultural rights) Art (Rights in civil and political society) Preamble Freedom, justice & peace Rule of Law Place in the UN system Articles 1 & 2: Dignity, freedom, equality, solidarity and non-discrimination Craig Forcese

University of Ottawa Faculty of Law Human Rights Universal Declaration of Human Rights Status of the UDHR: Never intended as binding But has taken on legal significance as (in whole or in part): Customary international law The authoritative interpretation of state human rights obligations under the UN Charter US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were both opened for signature in 1966 and came into force in 1976 US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants The problem of reservations: there are many reservations to both Conventions Article 19 of the Vienna Convention on treaties allows reservations that are not inconsistent with the object or purpose of the treaty UN Human Rights Committee (which we’ll talk about) has tried to define what this means. US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Content: Shared content includes reference to self-determination, all people have rights to dispose of natural resources and bar on discrimination US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: Includes more rights than found in the UDHR and provides greater specificity on the rights that it does duplicate Article 2 spells out state obligations: state is to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the covenant without discriminatory distinction Human Rights Committee has developed guidelines on the interpretation of Article 2 Envisages Article 2 having both a negative and positive obligation: Negative: refrain from violating rights Positive: promote and protect the rights in the domestic arena US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: Includes “derogation” provision in Article 4: [Except as otherwise provided] [i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Also, sufficient notification must be given to the other state parties US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: Some rights in the Covenant are self-limiting: e.g. Art Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Abuse of limitations on rights is controlled somewhat by Art. 5: Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: Treaty-based body created by the Covenant: UN Human Rights Committee 18 members, serving in their individual capacities Has the following functions: Administers the reporting system under Art. 40 Oversees any inter-state complaint under Art. 41 and 42 US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: UN Human Rights Committee has the following functions: Oversees individual complaints under the Optional Protocol: Determines admissibility under Art. 2, 3 and 5: for instance, complainant must exhaust local remedies and the matter must not be subject to another international investigation and it must not be anonymous Assessment of merits US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: UN Human Rights Committee has the following functions: : Oversees individual complaints under the Optional Protocol Legal status of “views” under the Optional Protocol: Committee has pointed to Article 2(3) of the ICCPR to suggest that its determinations have some sort of legal significance: Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities; (c) To ensure that the competent authorities shall enforce such remedies when granted. US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Civil and Political Rights: UN Human Rights Committee has the following functions: Oversees individual complaints under the Optional Protocol Legal status of “views” under the Optional Protocol: Committee has pointed to Article 2(3) of the ICCPR to suggest that its determinations have some sort of legal significance: e.g., “Bearing in mind that … the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in cases where a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.” US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Economic, Social and Cultural Rights: Content: more detailed compilation of economic, social and cultural rights found in the UDHR Article 2, spelling out state obligations, is less robust than the equivalent Article 2 in the Covenant on Civil and Political Rights each state party promises to “undertake steps … to the maximum of its available resources, with the view to achieving progressively the full realization of the rights recognized” in the Covenant by all “appropriate means, including particularly the adoption of legislative measures” Committee on Economic, Social and Cultural Rights insists that there is at least the requirement to take steps US Craig Forcese

3231 University of Ottawa Faculty of Law Human Rights The International Covenants Covenant on Economic, Social and Cultural Rights: Body created for the Covenant: Committee on Economic, Social and Cultural Rights Reviews reports on measures that state parties have adopted to implement the rights However, there is no inter-state or individual complaint mechanism, as there is under the Covenant on Civil and Political Rights (though an optional protocol is under discussion) US Craig Forcese

University of Ottawa Faculty of Law Remedies: Responding to Violations We’ve talked about the difficulties in state enforcement via criminal penalties against overseas human rights abusers We’ve talked about the failings of the ICJ We’ve discussed the weak UN treaty and Charter-based human rights body enforcement mechanisms In remainder of course we will look at international criminal law, state responsibility and the lawful use of force Today, wish to discuss International criminal law State responsibility US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Substantive Issues We’ve discussed certain international crimes already: genocide, torture We’ve mentioned war crimes and crimes against humanity US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Substantive Issues War Crimes: tied to the concept of “laws of war” and international humanitarian law Geneva Conventions of the 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Members of Armed Forces in the Field Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Geneva Convention relative to the Treatment of Prisoners of War Geneva Convention relative to the Protection of Civilian Persons in the Time of War US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Substantive Issues War Crimes: tied to the concept of “laws of war” and international humanitarian law Protocols Additional to the Geneva Conventions: Protocol I: deals with the protection of victims of international armed conflict Protocol II: deals with non-international armed conflicts A more comprehensive series of protections than are found in Common Article 3 of the Geneva Conventions Applies where the dissident forces exercise enough control of the state’s territory to enable them to carry out sustained and concerted military operations US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Substantive Issues “Crimes Against Humanity” Expression likely originates in Russian, French, British Declaration on Ottoman massacre of Armenians in 1915: “In view of these crimes of Turkey against humanity and civilization, the Allied governments announce publicly … that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.” Crimes against humanity were first established as a true category in international law by the 1945 London Charter which provided for the Nuremberg Tribunal (Nuremberg Charter) US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law 2 Procedural Issues: Efforts to Create an International Criminal Court End of the Cold War and humanitarian crises in Yugoslavia and Rwanda Resolution 808 established the ad hoc tribunal for the former Yugoslavia under statute of tribunal, jurisdiction over over individuals accused of crimes against humanity, genocide, violations of the laws and customs of war and grave breaches of the Geneva Conventions of 1949 concurrent jurisdiction with national courts US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law 2 Procedural Issues: Efforts to Create an International Criminal Court End of the Cold War and humanitarian crises in Yugoslavia and Rwanda Resolution 955 established the ad hoc tribunal for Rwanda under statute of tribunal, mandate is to "prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states." US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law 2 Procedural Issues: Efforts to Create an International Criminal Court End of the Cold War and humanitarian crises in Yugoslavia and Rwanda Resolution 955 established the ad hoc tribunal for Rwanda defined as acts of genocide, crimes against humanity and breaches of Article 3 of the Geneva Conventions and the 1977 Protocol II governing non-international conflicts US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law 2 Procedural Issues: Efforts to Create an International Criminal Court Renewed efforts to create an international criminal court 1989: United Nations General Assembly request to the International Law Commission US : Preparatory Committee on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text 1998: Rome diplomatic conference to adopt final text 1994: International Law Commission completes its work on the draft Statute 1995: the Ad Hoc Committee on the Establishment of an International Criminal Court meets twice Craig Forcese Historical Timeline

University of Ottawa Faculty of Law International Criminal Law Statute of Rome Negotiating Issues: Controversy over Jurisdiction and Crimes if broad crimes, states wanted narrow jurisdiction and vice versa Different groupings of states: “Like-Minded Group” – generally favoured a strong and independent court Permanent Members of the Security Council (except UK) – a strong role for the Security Council and the exclusion of nuclear weapons A cacophony of other positions US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Statute of Rome Content: Three broad principles: Complementarity Only the most serious of crimes Effort to define crimes in a fashion consistent with customary international law US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Statute of Rome Content: Part 2: Jurisdiction, Admissibility and Applicable Law Jurisdiction -- the court may exercise jurisdiction with respect to the crimes listed in the statute, if the state of the territory where the crime was committed is a member or the state of nationality of the accused is a member (Article 12) Grounds for inadmissibility – e.g. the case is being investigated or prosecuted by a state that has jurisdiction over it (Article 17) US Craig Forcese

University of Ottawa Faculty of Law International Criminal Law Statute of Rome Content: Part 2: Jurisdiction, Admissibility and Applicable Law Crimes – Genocide Crimes Against Humanity War Crimes US Craig Forcese

University of Ottawa Faculty of Law State Responsibility Keep in mind fact-scenario: Ms. Kazemi is killed by Iranian officials US Craig Forcese

University of Ottawa Faculty of Law Recap: State Responsibility Definition: state responsibility is the body of law governing the legal consequences of a state’s breach of its international obligations Traditionally, had a narrow focus on violations stemming from injuries to aliens International Law Commission’s work has had a different, broader focus since at least the 1960s State responsibility relates to the breach of any international obligation US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Underlying premises: The breach of an international obligation gives rise to a new set of legal duties and rights “secondary” international rules flowing from the breach of “primary” rules The “secondary” international rules are intentionally general in their character Supposed to encompass all types of international obligations However, note that particular treaty regimes may establish their own “secondary” rules (e.g., trade law) US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: When is state responsibility triggered: the definition of an internationally wrongful act Article 1 + Article 2 + Article 12 = an act inconsistent with an international obligation and attributable to a state equals an internationally wrongful act producing state responsibility Creates an “objective” regime: no reference to the state’s “mental state” US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 4: actions of state organs will be imputed to the state Article 4(2) defines a state organ to include any person or entity having that status under a state's internal law US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 5: The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 8: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 9: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 10: State responsibility attributable where related to actions of an insurrectional movement that becomes the new government US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Attribution: when exactly should a state be held responsible for conduct actually committed by human beings Article 11: Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Consequences: Rights of Injured States: Right to invoke responsibility Art. 42: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that State, or the international community as a whole, and the breach of the obligation: (i) Specially affects that State; or (ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Consequences: Rights of Injured States: Right to invoke responsibility But note Art. 48: Any State other than an injured State is entitled to invoke the responsibility of another State … if: … b. The obligation breached is owed to the international community as a whole. US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Consequences: Rights of Injured States: Right to invoke responsibility Note exhaustion of local remedies requirement in Art. 44 US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Consequences: Rights of Injured States: Right to invoke responsibility Right to apply countermeasures May be used to induce compliance Must be proportional Must not affect obligations that benefit individuals or the international community as a whole Must meet certain procedural requirements US Craig Forcese

University of Ottawa Faculty of Law State Responsibility ILC Draft (2001) Key features: Consequences: 2. Duties of violating states Cessation and non-repetition (Art. 30) Reparation (Art. 31): Restitution (Art. 35) Compensation (Art. 36) Satisfaction (Art. 37) US Craig Forcese

University of Ottawa Faculty of Law State Responsibility Hypotheticals: Is there a violation of international law? Is state responsibility triggered? Need violation of international obligation Must be attributable to state What are the legal consequences? Rights of the injured state Can it espouse the claim? Victim a national? Are local remedies exhausted? Countermeasures Duties of violating state Cessation, reparations US Craig Forcese

University of Ottawa Faculty of Law Use of Force Starting point: UN Charter Article 2(4) provides: 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. Article 51 indicates: 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 the measures necessary to maintain international peace and security. … US Craig Forcese

University of Ottawa Faculty of Law Use of Force Put together, Charter provides that if a state uses force against another state within the meaning of Article 2(4), it is unlawful unless (1) it is an exercise of that state's Article 51 right of self-defense or (2) unless it is authorized by the Security Council under its Chapter VII authority US Craig Forcese

University of Ottawa Faculty of Law Use of Force Self-Defence Necessity, proportionality and immediacy Necessity: use of force must be necessary for either individual or collective self-defence Proportionality: a state's use of force be proportional in intensity and magnitude to what is reasonably necessary to promptly secure self-defense Immediacy: contested issue Article 51: “if an armed attack occurs” May allow at least anticipatory self-defence Does not fit “pre-emptive” self-defence US Craig Forcese

University of Ottawa Faculty of Law Use of Force Humanitarian Intervention Very difficult to fit into “self-defence”, especially in Kosovo context Could humanitarian intervention be viewed as outside of Article 2(4): does not affect “territorial integrity” or “political independence” Not persuasive argument Many international scholars argue for an inherent, customary international doctrine of humanitarian intervention in response to widespread human rights violations where the UN fails to take effective action Other international scholars argue that any such right is superseded by the Charter US Craig Forcese

University of Ottawa Faculty of Law Use of Force Humanitarian Intervention So what do we do? Articulate a clear rule on humanitarian intervention, constraining the prospects of abuse? Reform the UN to make sure it actually does its job? US Craig Forcese

University of Ottawa Faculty of Law Review What do we mean by international law? Law of nations A universal rule of law? International law’s stabilizing vs. normative purpose Sources of International Law International conventions International custom General principles of law recognized by civilized nations Judicial decisions and the teachings of the most highly qualified publicists Reception of International Law Craig Forcese

University of Ottawa Faculty of Law 4. Subjects of International Law States: A permanent population A defined territory A government A capacity to enter into relations with other states International organizations Craig Forcese

University of Ottawa Faculty of Law 5. State Jurisdiction Over Territory (land, oceans, space, polar regions) Territory comprising the state Primary title: discovery and now effective occupation of terra nullius Secondary title: prescription, conquest, renunciation, abandonment Concept of self-determination Concept of uti possidetis Sovereignty over water: inland water and then oceans (internal waters vs. territorial sea) Also discussed ocean waters over which a state has some limited measure of sovereignty: contiguous zone, EEZ, continental shelf Res Communis High seas Common Heritage of Humankind Deep seabed Craig Forcese

University of Ottawa Faculty of Law 6. State Jurisdiction Over People and Actions Enforcement Jurisdiction Prescriptive Jurisdiction Events connected to territory; Nationality principle (coupled with a discussion of the international law on “nationality); Passive personality principle; Protective principle Universal principle Limitations on Jurisdiction Diplomatic immunity State immunity 7. Human Rights 8. Responding to Violations of International Law International Criminal Law State responsibility Use of Force Craig Forcese

Public International Law Jurisdiction over People and Things

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Public International Law Jurisdiction over People and Things

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