Hague Yearbook of International Law 2021 / Annuaire de la Haye de Droit International 2021 (Hague Yearbook of International Law / Annuaire de la Haye de Droit International, 34) 900454478X, 9789004544789

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Hague Yearbook of International Law Annuaire de La Haye de droit international

Hague Yearbook of International Law 2021 Editor-in-Chief Prof. Jure Vidmar Vice-Editor-in-Chief Dr. Ruth A. Kok Editorial Board Dr. Julian Arato, Dr. Nikos Lavranos, Dr. Daniel Peat, Dr. Daniel Rietiker Managing Editor Sarah Thin Email address [email protected] Advisory Board Serge Brammertz (Chief Prosecutor of the International Residual Mechanism for Criminal Tribunals) – Antônio Cançado Trindade ( Judge at the International Court of Justice (ICJ)) – Jacomijn J. van Haersolte-van Hof (Director General of the London Court of International Arbitration and University Professor at Leiden University) – Peter Hilpold (University Professor at Innsbruck University (Austria)) – Bruno Simma (( former) Judge at the ICJ) – Olivia Swaak-Goldman (( former) Head, International Relations Task Force, Office of the Prosecutor, International Criminal Court (ICC) and Executive Director, Wildlife Justice Commission)

The titles published in this series are listed at brill.com/aaaa

HAGUE YEARBOOK OF INTERNATIONAL LAW ANNUAIRE DE LA HAYE DE DROIT INTERNATIONAL VOLUME 34

2021 Edited by

Jure Vidmar

LEIDEN | BOSTON

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0167-6660 isbn 978-90-04-54478-9 (hardback) isbn 978-90-04-54479-6 (e-book) Copyright 2023 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Editorial  Notes on Contributors  1 Reviving the Doctrine of International Legal Personality International Courts and Tribunals as De Jure and De Facto Legal Persons in International Law  Neil Nucup

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2 Investment Arbitration as a Forum for Enforcement of  Commercial Arbitration Awards  Aniruddha Rajput

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3 Margin of Appreciation: A Model for Immigration Reform  in the United States during COVID-19  Bethany Gamble

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4 Procedural Safeguards in the ILC Draft Articles on the  Immunity of State Officials from Foreign Criminal  Jurisdiction A Pathway to Better Outcomes  Maeve Claffey 5 The Role of Domestic Courts in the Prosecution of  International Crimes Why Functional Immunity of Foreign State Officials Is Not an Obstacle to the Jurisdiction of National Courts  Alejandro Ortega Navarro 6 Closing the Preliminary Examination in Colombia Should  Not Mean Closing the Eyes Why the Jurisdicción Especial para la Paz Still Faces Challenges in Interpreting ‘Command Responsibility’ in Accordance with the Rome Statute  Jana Kreulach

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vi 7 The CJEU’s Reasoning in Slovenia v Croatia: A Dispute  Ancillary to Another Dispute, but Which One?  Jure Vidmar 8 The Gambia vs The Union of Myanmar under the  Genocide Convention A Case Doomed to Fail  Andrés H. Cáceres-Solari

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Editorial The past two decades have seen a great deal of scholarship discussing the legal nature and responsibility of non-state actors under international law. In general, some inquiries into non-state actors try to hold such actors directly responsible for breaches of international law while others try to find ways to attribute their conduct to states. The problem of the label ‘non-state actors’ is that it is overly broad: it establishes a false dichotomy between states and all other actors capable of acting on the international plane. This means that a corporation, a non-governmental organisation, you, I, the European Union, the United Nations, Transnistria, the International Committee of the Red Cross, Daesh, Taiwan, Scotland, and Hong Kong all fall within the same category of non-state actors. But their capacities to act on the international plane and even incur responsibility under international law can be quite different. It appears that international legal scholars are now increasingly rejecting this false dichotomy between states and non-state actors, and instead have begun to consider how legal status is created under the sources of international law. International legal status indeed needs to be established in the sources of international law. It cannot be magically transposed from domestic law to the international level (i.e. if a corporation is incorporated in the Netherlands and has a branch in a foreign state, this does not mean that it has legal personality under international law). It is well-established that the legal status of international organisations is created by states, mostly by treaties, although in some limited circumstances it can be argued that this can also happen via customary international law. In some largely historic situations, other forms of international legal status have also been created, such as the Holy See and the Sovereign Order of Malta. In most circumstances, however, legal status under international law is territorial in nature. The most common legal status is statehood, but it is not the only one. Most non-state actors discussed in contemporary scholarship on non-state actors do not have their status grounded in the formal sources of international law, so they do not have the capacity to breach the rules of this legal system. They were indeed not created by those who do have the law-making capacity on the international plane. In this sense, one needs to distinguish between legal persons under domestic law and those under international law. A legal status under domestic law does not imply a legal status under international law. Scholarly writings on non-state actors commonly make this mistake: they assume that an actor which is a legal person in domestic law must or should also possess an international legal status. But that is not the case where this

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actor’s legal status has not been established under the formal sources of international law. In this volume, several articles focus on the questions of international legal personality, the legal rights and duties of individuals in certain specialised international legal regimes and their procedures, and the use and abuse of international law in the EU legal order. The volume begins with an article on international legal personality. Neil Nucup conducts a critical reappraisal of the current definition of international legal personality, before applying these findings to international courts and tribunals (ICT s). These bodies should, he argues, be understood as international legal persons, and this finding is central to understanding and developing the role, impact, and accountability of ICT s within international law. Moving from international courts to international arbitration, Aniruddha Rajput’s contribution focuses on the lawfulness and desirability of investment treaty arbitration being used as a forum for the enforcement of commercial arbitration awards. Focusing in part on the definition of an ‘investment’, he contends that investment arbitral tribunals do not have jurisdiction to investigate alleged breaches of other treaties, and that to ignore this lack of competence would have implications in the realms of both law and legitimacy. Next, Bethany Gamble conducts a comparative analysis of the European Court of Human Rights’ margin of appreciation doctrine and the plenary power doctrine over immigration laws in the USA. She analyses both doctrines as tools by which the interests of the state and the individual can be balanced in the context of immigration, and concludes that the margin of appreciation doctrine should serve as a model for the USA to be able to maintain sovereignty without sacrificing respect for individual human rights. This is followed by two articles on the immunity of foreign state officials. First, Maeve Claffey’s article examines the procedural safeguards formulated by the International Law Commission in their Draft Articles on this topic. She emphasises the importance of such safeguards with regard to the legitimacy of determinations made in relation to immunity, and with regard to the peaceful and orderly conduct of diplomatic affairs. Alejandro Ortega Navarro then brings the discussion to the immunity of foreign state officials in the context of prosecution of international crimes before domestic courts. He critically reexamines the nature of immunity and how it operates, arguing that immunity exists as an exception to jurisdiction and it is thus dependent on the type of jurisdiction that is being asserted. In the context of international criminal responsibility, he contends, state officials are not shielded by functional immunity, even during domestic proceedings.

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Staying within the area of international criminal law, the next article examines the application of the complementary principle in Columbia through the ongoing work of the work of the Jurisdicción Especial para la Paz (JEP). Jana Kreulach identifies a number of failures and challenges in this regard, particularly in relation to the differing interpretation of ‘command responsibility’ by the JEP and under the Rome Statute. She contends that the dependence of the JEP on the jurisprudence of the Colombian Constitutional Court in this regard does not reflect the rationale of the Rome Statute, thus undermining the operation of the complementarity principle in Columbia. Following this, Jure Vidmar’s contribution focuses on certain international law aspects of the Slovenia v Croatia case before the Court of Justice of the European Union. He argues that, although the Court may have been correct in finding that it lacked jurisdiction to hear the case, its reasoning was flawed. Contrary to the Court’s judgment, Vidmar contends that the Arbitral Award between Croatia and Slovenia had created an objective legal fact which would have been applicable in this case. The final article in this volume provides a critical analysis of The Gambia’s submissions to the International Court of Justice in the ongoing proceedings relating to the alleged genocide in Myanmar. Andrés  H.  Cáceres-Solari contends that The Gambia’s argumentation regarding genocidal intent (dolus specialis) is doomed to fail, having regard to the perspective taken on this by the ICJ in previous cases. In its place, Cáceres-Solari develops an alternative approach which he suggests is more likely to be successful. Each in their own way, these contributions shed new light on the complex and multifaceted beast that is non-state actors in international law. By illuminating different aspects of this topic from varied and diverse angles, this volume serves to consolidate and to clarify; to re-examine and to re-imagine. We hope that you enjoy reading it. Prof Jure Vidmar Editor-in-Chief Dr Sarah Thin Managing Editor

Notes on Contributors Andrés H. Cáceres-Solari Doctoral candidate at the University of Maastricht, The Netherlands. Andrés H. Cáceres-Solari has dedicated years to studying the situation of the Rohingya in the Union of Myanmar and the rest of Southeast Asia, including witnessing and documenting these acts of genocide against this protected group. Maeve Claffey LL.M (Leiden), LL.B (Ling. Germ.) (TCD). Bethany Gamble Juris Doctor Candidate, 2023, Suffolk University Law School, Boston, Massachusetts. Jana Kreulach Law student, Friedrich-Schiller-University, Jena; LL.M. in International Law, Maastricht University; B.A. in International Relations, University of Erfurt. Neil Nucup Legal Counsel at the Permanent Court of Arbitration. Alejandro Ortega Navarro PhD Researcher at Maastricht University. Aniruddha Rajput Member, International Law Commission; Consultant, Public International Law and International Arbitration, Withers LLP ([email protected]). Jure Vidmar Professor of Public International Law, Faculty of Law, Maastricht University. Member of the Permanent Court of Arbitration.

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Reviving the Doctrine of International  Legal Personality

International Courts and Tribunals as De Jure and De Facto Legal Persons in International Law Neil Nucup Abstract Legal personality is a powerful structuring tool in any legal system as it identifies which entities are truly relevant. Employing a hybrid theory of the recognition and actor conceptions of international legal personality, this paper seeks to restore the doctrine in the legal discourse amidst recent efforts to undermine its significance in international law. Extending the analysis further, the paper argues that international courts and tribunals are legal persons themselves conformably with the Reparation advisory opinion of the International Court of Justice. More importantly, as legal persons, international courts and tribunals become relevant entities in the international plane insofar as they are capable of contributing to the creation or development of international law and being held responsible by States for their discharge of their adjudicative function.

Keywords international legal personality  – international courts and tribunals  – international dispute settlement

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Introduction*

In any municipal legal system, participation requires existence in the eyes of the law.1 To this end, every domestic jurisdiction usually has a law of persons2 * The views expressed in this article are personal to the author. The article is based on the dissertation the author submitted in fulfillment of the requirements of the Master of Laws in Advanced Studies in International Dispute Settlement and Arbitration at Leiden University under the supervision of Assistant Professor Daniel C. Peat. 1 Roland Portmann, Legal Personality in International Law (CUP 2010) 7. 2 cf art 1:2 of the Dutch Civil Code, art 41 of the Civil Code of the Philippines and Paton v British Pregnancy Advisory Service [1979] QB 276 [EWHC QB: High Court (Queen’s Bench)] on the legal personality of an unborn foetus. © Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_002

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identifying those entities whom the municipal legal system endows with rights and duties and whose actions the legal system takes account of by attaching legal consequences to them.3 Relevantly, in his doctoral thesis published in 1927, former International Court of Justice (ICJ) Judge Sir Hersch Lauterpacht expounds on the formal analogy between municipal law and international law, with the latter being ‘a higher private law’ regulating the interests of coordinated legal persons.4 While there may be no absolute logical cogency in the process of juridical analogy,5 Lauterpacht clarifies that the absence of such a complete correspondence between the two spheres does not necessarily distort a rule of international law, but merely reflects a difference in their stages of legal organization.6 Following Lauterpacht’s proposition, legal personality can thus be safely envisaged as a structuring tool in international law for the same purpose that is served by legal personality in municipal law, that is, to distinguish between those entities relevant to the legal system and those excluded from it.7 To illustrate, according to the Fifth Report of the Special Rapporteur on Identification of Customary International Law8 and the Second Report of the Special Rappor­teur on Jus Cogens,9 the determination of international legal norms requires an enquiry into the legal identity of the entity whose conduct is under consideration. At the same time, however, just as legal personality renders an entity relevant in the creation of the law,10 so is the same entity equally bound to abide by the law lest it be held accountable for any infraction.11 Succinctly put, legal relevance in the international plane means two important aspects of international relations, namely contribution to the creation or development of international law and capacity for international responsibility. 3 4 5 6 7 8 9 10 11

Portmann (n 1) 7. Hersch Lauterpacht, Private Law Sources and Analogies of International Law (With Special Reference to International Arbitration) (Longmans, Green and Co 1927) 81–2. Ibid 84. Ibid 86. Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Elgar 2012) 156. Michael Wood, Special Rapporteur, Fifth Report on Identification of Customary International Law, UN Doc A/CN.4/717 (2018). Dire Tladi, Second Report on Jus Cogens, UN Doc A/CN.4/706 (2017). Ian Brownlie, Principles of Public International Law (6th edn, OUP 2003) 57. James Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 115.

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Curiously, neither case law nor the literature explores the international legal personality of international courts and tribunals (ICT s) despite their central role in international dispute settlement. This article intends to fill this void by first, resolving the normative tensions permeating the current definition of international legal personality, and second, applying the reformulated definition to international adjudicative bodies. By ICT s, the article refers to ‘permanent [or ad hoc] bodies made up of independent judges [or arbitrators] entrusted with adjudicating international disputes on the basis of international law according to a pre-determined set of rules of procedure and rendering decisions which are binding on the parties’.12 This article is divided into seven sections. Following the introduction, section 2 addresses the circular reasoning employed in the Reparation advisory opinion13 of the ICJ and proposes an alternative definition. Building upon the proposed definition, section 3 lays down the analytical framework in establishing how ICT s are legal persons themselves. The next three sections apply this proposed framework. Section 4 details how ICT s are de jure legal persons. Sections 5 and 6 describe the ICT s as ‘effective participants’ in the international plane. The last section concludes the article. 2

Breaking the Tautology

In the Reparation advisory opinion, the ICJ defines an international person as ‘a subject of international law […] capable of possessing international rights and duties, and […] has capacity to maintain its rights by bringing international claims’.14 Many scholars find the definition quite circular,15 and rightfully so. While the indicia referred to depend on the existence of a legal 12

Christian Tomuschat, ‘International Courts and Tribunals’, Max Planck Encyclopedia of Public International Law (updated April 2019) accessed 4 June 2022, para 1. 13 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174. 14 Ibid 179. 15 Brownlie (n 10) 57; Derek William Bowett, The Law of International Institutions (4th edn, Stevens 1982) 336–7; Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006) 64; John Currie, Public International Law (Irwin Law 2001) 19; Jan Klabbers, ‘The Concept of Legal Personality’ (2005) 11 Ius Gentium 35, 49; Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century:

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person, possession of the relevant capacity hinges on whether it is in fact exercised.16 The debate, if not confusion, seems to stem from the propensity to simultaneously apply the two different dimensions of international legal personality in the same context.17 As worded, the definition consists of two clauses corresponding to these two dimensions. On the one hand is the passive or static dimension referring to the ‘possess[ion] [of] international rights and duties’; on the other is the active or dynamic dimension pertaining to the ‘capacity to maintain its rights by bringing international claims’.18 The two aspects are distinct and must be delineated. The passive dimension is the source of legal personality; the active dimension is the result. Being the result, the active dimension cannot simultaneously be a constitutive element, lest the definition suffers from the circuitous logic apparent from the Reparation advisory opinion. Indeed, while the meaning of legal personality is in practice related to its effect, the former should not be conflated with the latter.19 As regards the passive dimension of the legal personality of non-State entities, possession of rights and duties occurs by way of direct conferment from States.20 This is because international legal personality requires some form of community acceptance,21 and by community means those ‘entities that are themselves indisputably personified to the highest attainable degree’ or no less than States.22 Thus understood, the passive dimension is a necessary remnant of the traditional State-centric conception of legal personality.23 This view

General Course on Public International Law’, Collected Courses of the Hague Academy of International Law (1999) vol 281, 127. 16 Crawford (n 11) 115. 17 See generally Fergus Green, ‘Fragmentation in Two Dimensions: The ICJ’s Flawed Approach to Non-State Actors and International Legal Personality’ (2008) 9 Melbourne JIL 47, 55–8. 18 Davor Muhvić, ‘Legal Personality as a Theoretical Approach to Non-State Entities in International Law: The Example of Transnational Corporations’ [2017] Pécs J Intl & Eur L 7, 9. 19 Christopher Barbara, ‘International Legal Personality: Panacea or Pandemonium? Theorizing about the Individual and the State in the Era of Globalization’ (2007) 12 Austrian Rev Intl & Eur L 17, 25. 20 Wladyslaw Czapliński, ‘Recognition and International Legal Personality of Non-State Actors’ [2016] Pécs J Intl & Eur L 7, 8. 21 Malcolm N Shaw, International Law (5th edn, CUP 2003) 177. 22 Barbara (n 19) 23. 23 Catherine M Brölmann and Janne E Nijman, ‘Legal Personality as a Fundamental Concept of International Law’ Amsterdam Law School Legal Studies Research Paper No 2016-43 (2017) 3–7.

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may of course be questioned but the value of State practice in the recognition of non-State entities cannot be underestimated.24 With respect to the active dimension, the issue is not so much the legal existence of an entity as the extent of its international legal personality. This is why the conception of legal personality in the Reparation advisory opinion remains significant despite the criticism, for the ICJ steered a middle ground between the traditional State-centric meaning of legal personality and a more pragmatic view.25 By pronouncing that ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’,26 the ICJ paved the way for understanding international legal personality as a non-uniform and relative normative construct, particularly for non-State entities.27 Viewed from these perspectives, international legal personality of non-State entities can now be reframed as follows. It is the possession of rights and duties in international law by direct conferment of States through either treaty or custom. Whether the acts or omissions of a non-State entity produce legal consequences is not a matter of legal existence but a measure of its international legal personality. 3

Analytical Framework

Five different conceptions of international legal personality exist in the legal literature.28 According to the States-only conception, international personality is exclusively reserved to States,29 whereas the individualistic conception presumes the individual as an international person independent of the explicit or implicit expression of State will to that effect.30 Meanwhile, the formal conception declares international law an open system such that no entity is presumed as a legal person and international personality becomes an a posteriori concept.31 To be sure, the States-only conception is no longer tenable, particularly

24 25 26 27 28 29 30 31

Shaw (n 21) 243. Brölmann and Nijman (n 23) 13. Reparation advisory opinion (n 13) 178. Merja Pentikäinen, ‘Changing International ‘Subjectivity’ and Rights and Obligations under International Law – Status of Corporations’ (2012) 8 Utrecht LR 145, 151. Portmann (n 1) 13–14. Ibid 13, 42–79. Ibid 13, 126–72. Ibid 13, 173–207.

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with the emergence of international organizations.32 The latter two positions are not accurate either for they ignore the still predominant role of States in the current international legal order.33 Additionally, by viewing personality in international law as the consequence rather than a precondition for the possession of international obligations, the formal conception undermines the utility of legal personality as a regulatory tool in any legal system.34 Accordingly, what remains are two conceptions, namely the recognition conception and the actor conception. While they are likewise inadequate in their own right, they actually complement each other in addressing the legal status of non-State entities in the international plane. As will be shown, a hybrid of the two conceptions captures the dual nature of legal personality in modern international law. 3.1 Recognition Conception Influentially articulated by Georg Jellinek, Max Huber, and Santi Romano, the recognition conception actually aims to supplement the States-only conception with a sociological perspective.35 In their view, the law acquires its obligatory force only when in conformity with the social reality because social facts themselves have normative power.36 By doing so, the emergence of non-State entities, such as international organizations, and their increasing role in international affairs, have been given legal significance without compromising the validity of the States-only conception.37 However, the recognition conception also has its weaknesses. For one, while it is able to account for the derivative legal personality of non-State entities, it falls short of indicating in which specific areas a created subject is considered an international legal person.38 For another, the recognition conception appears to be a static view on the legal personality of non-State entities as it is more concerned on their sheer legal existence. Not much attention is given to their participation in the international plane. To be sure, the issue of participation is equally important for it goes into the interactive behavior between 32 33 34 35 36 37 38

Reparation advisory opinion (n 13) 179. Shaw (n 21) 243. See Barbara (n 19) 18. Portmann (n 1) 93–4. Ibid 94–7. Ibid 97. Christian Walter, ‘Subjects of International Law’, Max Planck Encyclopedia of Public International Law (updated May 2007) accessed 5 June 2022, para 26.

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States and non-State entities. Hence, inasmuch as the recognition conception is a powerful descriptive theory on the passive dimension of international legal personality, it is lacking in normative potential vis-à-vis the active dimension. 3.2 Actor Conception In contrast to other conceptions, the actor conception rejects altogether the concept of international personality as traditionally understood.39 According to former ICJ President Rosalyn Higgins, the most prominent exponent of the actor conception, the subject-object dichotomy is bereft of credible reality and serves no functional purpose.40 In a nutshell, the actor conception stipulates a presumption in favor of effective actors in the international legal system.41 By ‘effective actors’ means all entities exercising effective power in the international decision-making process through which the specific rights and duties held by particular actors are determined.42 However, like the recognition conception, the actor conception is also theoretically inadequate to explain in full the legal personality of non-State entities. Although the word ‘participant’ adequately describes what appears to be a growing catalogue of international legal persons, the price to be paid is the loss of legal precision.43 The apparent lack of legal precision has a more profound consequence. To emphasise, the recognition of States has an exclusionary effect in the international plane.44 Without the formal competence to participate in the international plane, a non-State entity cannot act in a manner that is opposable to the pre-existing subjects of international law.45 Hence, by failing to take into account the social reality on the functional role of community acceptance the supposed normative appeal of the actor conception eventually fizzles out. 3.3 Recognition-Actor Conception Hybrid As shown, neither the recognition conception nor the actor conception adequately accounts for the overall legal personality of non-State entities in international law. However, taken in conjunction, the two approaches serve

39 40 41 42 43 44 45

Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon 1994) 50. Ibid 49. Portmann (n 1) 14. Ibid. Walter (n 38) para 28. Barbara (n 19) 23. Czapliński (n 20) 8.

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as a strong descriptive and normative framework for the legal personality of non-State entities. For its part, the recognition conception aptly explains the passive dimension of international legal personality. In the case of ICT s, they become legal persons through inter-State agreements46 specifying the mandate of the judicial or arbitral body. Further, customary international law recognizes the powers of ICT s inherent to their mandate such as their competence to determine their own jurisdiction. To emphasise, the conferment of rights and duties by States is critically constitutive for the simple reason that international legal personality requires some form of community acceptance to the entity in question.47 This is the primary strength of the recognition conception. At the same time however, this legal traditionalist approach lacks the doctrinal potential to reflect the continuing relevance of non-State entities in international law subsequent to their creation. This is the gap filled in by the actor conception. By explaining the active dimension of international legal personality, the actor conception becomes a measure of how effective ICT s are as participants in the international decision-making process. To be precise, the effectiveness of their participation is to be assessed based on their contribution to the development of international law and their ability to respond to attempts from States to resist the discharge of their adjudicative functions. As the ICJ pointed out in its Reparation advisory opinion, international legal personality is relative such that not all subjects of international law have the same rights and obligations.48 Thus, although not a constitutive element of international legal personality, the active dimension is as important as the passive dimension for the former reveals the actual extent of the legal personality possessed by a particular entity. 4

International Courts and Tribunals as De Jure Legal Persons

When States intend to put up a standing court or an ad hoc tribunal, they generally enter into a treaty to fulfill their desires.49 Conformably with the recognition conception, this treaty breathes life into the adjudicative body and 46

Hugh Thirlway, ‘Judgments of International Courts and Tribunals’, Max Planck Encyclopedia of Public International Law (updated April 2007) accessed 5 June 2022, para 5. 47 Shaw (n 21) 177. 48 Reparation advisory opinion (n 13) 178. 49 Thirlway (n 46) para 5.

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enables the ICT to develop three essential attributes, namely a distinct identity, inherent powers, and duties. 4.1 Distinct Identity Not all bodies or fora set up by States, such as meetings of States Parties to a treaty or other international conferences, give rise to a new and separate legal entity.50 Albeit devised by States, these fora are not entrusted with tasks that they fulfil independently through their own organs.51 This does not hold true for international organizations.52 To illustrate, the UN has been equipped with its own organisational structure and special tasks.53 More importantly, the UN Charter delineates the position of the Member States vis-à-vis the organisation in certain matters.54 In other words, the UN has its own identity separate and distinct from the Member States. Compared to international organisations, ICT s actually enjoy a far greater autonomy. To emphasise, Member States remain represented in the proceedings of an international organization like the UN so much so that the delegates act as agents of their respective States. In sharp contrast, judges and arbitrators are duty-bound to be independent and are not agents of any State. Article 2 of the Statute of the ICJ55 thus reads, ‘The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character’. Article 17(1) of the Statute of the ICJ reinforces this duty of independence by prohibiting any member of the court from acting as agent, counsel, or advocate in any case. The same principle of independence is enshrined in Article 2(1) of the Statute of ITLOS56 and Article 14(1) of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention).57

50 51 52 53 54 55 56 57

Philippe Gautier, ‘The Reparation for Injuries Case Revisited: The Personality of the European Union’, (2000) 4 Max Planck YBUNL 331, 333. Ibid. Reparation advisory opinion (n 13) 178. Ibid. Ibid 178–9. Statute of the International Court of Justice (concluded 26 June 1945, entered into force 24 October 1945) 3 Bevans 1153 (ICJ Statute). Statute of the International Tribunal for the Law of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 561 (ITLOS Statute). Convention on the Settlement of Investment Disputes between States and Nationals of Other States (concluded 18 March 1965, entered into force 14 October 1966) 575 UNTS 8359 (ICSID Convention).

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By way of example, in Croatia v. Slovenia58 Croatia sought to unilaterally terminate the arbitration proceeding. Invoking Article 60 of the Vienna Convention on the Law of Treaties (VCLT),59 Croatia argued that the ex-parte communications between the Slovenian agent and the Slovenia-appointed arbitrator constituted a material breach of the arbitration agreement.60 In its Partial Award, the Tribunal unanimously decided that Slovenia violated the arbitration agreement.61 Nonetheless, the Tribunal still upheld the continued validity of the arbitration agreement and the proceeding, following the resignation and replacement of the party-appointed arbitrators and other remedial measures taken by the Tribunal to secure ‘the procedural balance between the parties’.62 In addition to their duty to be independent and drawing a parallel with the Reparation advisory opinion, ICT s also enjoy immunities and privileges within the territory of the Member States.63 Equally significant, disputing States are duty-bound to comply with the judgments issued by ICT s.64 Collectively, all these three features reinforce the distinct identity of ICT s upon their creation. 4.2 Inherent Powers Ideally, the constitutive instruments of ICT s, usually in the form of treaties, as well as their respective rules of procedure exhaustively enumerate all the powers necessary for the proper and full discharge of their adjudicatory function. In reality however, gaps in the law are unavoidable. After all, circumstances that are yet to arise in the future cannot be completely accounted for.65 Quite possibly also, a procedural rule that is missing could very well be a deliberate omission on the part of the drafters.66 Confronted with these lacunae in procedural matters, ICT s tend to invoke their so-called ‘inherent powers’.

58 Arbitration between the Republic of Croatia and the Republic of Slovenia, PCA, Partial Award, 30 June 2016. 59 Vienna Convention on the Law of Treaties (concluded 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). 60 Croatia v Slovenia (n 58) paras 95–101. 61 Ibid para 231. 62 Ibid para 194. 63 ICJ Statute (n 55) art 19; ITLOS Statute (n 56) art 10; ICSID Convention (n 57) arts 18–20. 64 UN Charter, art 94(1); ITLOS Statute (n 56) art 33(1); ICSID Convention (n 57) art 54. 65 Chester Brown, ‘Inherent Powers in International Adjudication’ in Cesare PR Romano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2013) 829, 832. 66 Ibid.

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Enunciating the basis of its ‘inherent jurisdiction’, the ICJ explains in Nuclear Tests cases:67 it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’ ….. Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.68 Similarly, the Iran-United States Claims Tribunal affirms its possession of inherent powers by virtue of its sheer existence. In the view of the Tribunal, it enjoys these powers that ‘[while] not explicitly granted […] must be seen as a necessary consequence of the parties’ fundamental intent to create an institution with a judicial nature’.69 The Appeals Chamber of the Special Tribunal for Lebanon shares the same view and adds, ‘inherent jurisdiction arises as from the moment the matter over which the Tribunal has primary jurisdiction is brought before an organ of the Tribunal’.70 The arbitral tribunal in Hrvatska Elektroprivreda v Slovenia71 pursues the same line of reasoning and invokes its ‘inherent power to take measures to preserve the integrity of the proceedings’.72 Of course, the doctrine of implied powers is not without criticism. Conside­ ring that international instruments establishing ICT s are constitutive of their 67 Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253; Nuclear Tests (New Zealand v France) (Judgment) [1974] ICJ Rep 457. 68 Nuclear Tests (Australia v France), at 259–60; Nuclear Tests (New Zealand v France), at 463. 69 Iran v United States, Iran-US Claims Tribunal, Decision Ruling on Request for Revision by Iran, 1 July 2011, Decision No DEC 134-A3/A8/A9/A14/B61-FT, para 59. 70 In the Matter of El Sayed, Case No CH/AC/2010/2, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010 (Special Tribunal for Lebanon, Appeals Chamber), para 45. 71 Hrvatska Elektroprivreda, d.d. v The Republic of Slovenia, ICSID Case No ARB/05/24, Tribunal’s Ruling Regarding the Participation of David Mildon QC in Further Stages of the Proceedings, 6 May 2008. 72 Ibid para 33.

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powers, these adjudicative bodies can only exercise those powers expressly conferred upon them. Professor Hugh Thirlway thus explains, ‘Jurisdiction or competence is not […] a general property vested in the court or tribunal contemplated: it is the power, conferred by the consent of the parties’.73 Similarly, Advocate-General Warner contends before the Court of Justice for the European Union that the European Commission does not have inherent powers because ‘[as] a body that is created by a legal instrument […] [i]t has only the powers that are conferred on it by that instrument, either expressly or by necessary implication.’74 However, as already pointed out, constitutive instruments of ICT s often contain lacunae, and unavoidably so.75 As James Crawford argues, just because the constitutive instrument of one international court contains an express power where another does not, this ‘should not be used to justify, a contrario, a failure to develop necessary or desirable rules of general international law’.76 Further, the view that ICT s can only exercise expressly conferred powers is not borne out by substantial judicial and arbitral practice.77 Based on a cursory survey of judicial and arbitral decisions, ICT s frequently invoke four inherent powers, namely compétence de la compétence,78 power to frame rules of procedure,79 power to grant provisional measures,80 and power to rectify, interpret or revise judgments or awards.81 Admittedly, these powers also happen to be expressly 73 74 75 76 77 78

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Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice: 1960–1989: Part Nine’ (1998) 69 BYBIL 1, 6. Case No 792/79R Camera Care Ltd v Commission ECLI:EU:C:1980:18 (Opinion A-G Warner). Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’ (2005) 76 BYBIL 195, 210–11. James Crawford, ‘International Law as an Open System’ in James Crawford (ed), International Law as an Open System: Selected Essays (2002) 17, 35. Brown (n 75) 211. See John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party 2277–91, 2291–2303 (1898) (Opinion of Commissioner Gore; Opinion of Commissioner Pinkney); Nottebohm case (Liechtenstein v Guatemala) (Preliminary Objection) [1953] ICJ Rep 111, 119. United Parcel Services of America, Inc v Government of Canada, NAFTA, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, 17 October 2001; Kanyabashi v Prosecutor, Case No ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal, 3 June 1999 (Judge Shahabuddeen, Dissenting Opinion). E-Systems, Inc v Iran, 2 Ir-USCTR 51, 57 (1983); Case of Velásquez-Rodríguez v Honduras, IACtHR, 28 ILM 291, 302 (1989). Application for Revision and Interpretation of the Judgment of 24 Februaiy 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya) (Judgment) [1985] ICJ Rep 192, 198; Trail Smelter case (US-Canada) (1941) 3 RIAA 1905, 1954.

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provided in the constitutive instruments or rules of procedure of the ICT concerned. Still, this does not detract from their inherent character. In his separate opinion in Northern Cameroons,82 Sir Gerald Fitzmaurice thus explains: But also, there is the Court’ s preliminary or ‘incidental’ jurisdiction (eg to decree interim measures of protection, admit counterclaims or third party interventions, etc) […] Although much (though not all) of this incidental jurisdiction is specifically provided for in the Court’ s Statute, or in Rules of Court which the Statute empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or any court of law – being able to function at all.83 4.3 Duties or Functions Two views predominate the discourse on the functions of international adjudication depending on the mandate of the ICT concerned.84 One view focuses on the private aspect of disputes, while the other vests ICT s with a public function.85 Despite their fundamental differences, both schools of thought nonetheless consider that ICT s are a deliberate creation of States with specific duties to discharge in the international plane. 4.3.1 Private Functions Like their municipal counterparts, ICT s have as their main task the settlement of disputes.86 This private function of international adjudication stems from the perceived authority of binding decisions by a third-party to avert the escalation of a dispute into an otherwise violent confrontation.87 A case in point is Article 33(1) of the UN Charter obligating disputing States to seek a solution by peaceful means such as arbitration or judicial settlement ‘when the continuance of [their dispute] is likely to endanger the maintenance of international peace and security’. Reinforcing this obligation, Article 38(1) of the Statute of the ICJ explicitly provides that the function of the ICJ is ‘to decide […] disputes

82 Case Concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) [1963] ICJ Rep 15. 83 Ibid 103 (Judge Fitzmaurice, Separate Opinion). 84 Brown (n 65) 842–3. 85 Ibid. 86 Tomuschat (n 12) para 35. 87 Armin von Bogdandy and Ingo Venzke, ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’ (2013) 26 LJIL 49, 53.

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as are submitted to it’. Meanwhile, both the 189988 and 190789 Conventions for the Pacific Settlement of International Disputes recognize that ‘International arbitration has for its object the settlement of differences between States’.90 Notably, the two Hague Conventions were adopted ‘[w]ith a view to obviating, as far as possible, recourse to force in the relations between States’91 because at the time the use of armed force was still an accepted method of resolving international disputes.92 Related to the dispute-settlement function is the competence of ICT s to render advisory opinions. As regards the ICJ, its advisory jurisdiction is expressly provided under Article 65 of its constitutive instrument. Three regional human rights courts are also vested with the same power. These include the European Court of Human Rights,93 Inter-American Court of Human Rights,94 and African Court on Human and People’s Rights.95 Curiously, while the ITLOS has not been expressly entrusted with advisory jurisdiction, it has opened this possibility in Article 138 of its Rules on the basis of Article 21 of the ITLOS Statute.96 4.3.2 Public Functions At the same time, international adjudication is also perceived to fulfill public functions. Lauterpacht envisioned a broader role for the ICJ beyond the mere settlement of disputes and remarked, ‘the development of international law by international tribunals is, in the long run, one of the important conditions of

88 89 90 91 92 93 94 95 96

Hague Convention for the Pacific Settlement of International Disputes (concluded 29 July 1899, entered into force 4 September 1900) 1 Bevans 230 (1899 Hague Convention). Hague Convention for the Pacific Settlement of International Disputes (concluded 18 Octo­ber 1907, entered into force 26 January 1910) 1 Bevans 577 (1907 Hague Convention). 1899 Hague Convention (n 88) art 15; 1907 Hague Convention (n 89) art 37. 1899 Hague Convention (n 88) art 1; 1907 Hague Convention (n 89) art 1. Shabtai Rosenne, ‘Introduction’ in Shabtai Rosenne (ed), The Hague Peace Conference of 1899 and 1907 and International Arbitration: Reports and Documents (TMC Asser 2001) xv. Convention for the Protection of Human Rights and Fundamental Freedoms (concluded 4 November 1950, entered into force 3 September 1950) 213 UNTS 221 (ECHR) arts 47–49. American Convention on Human Rights ‘Pact of San José, Costa Rica’ (concluded 22 Novem­ber 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) art 64. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (concluded 10 June 1998, entered into force 25 January 2004) (African Charter Protocol) art 53. See generally Tom Ruys and Anemoon Soete, ‘“Creeping” Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea’ (2016) 29 LJIL 155.

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their continued successful functioning and of their jurisdiction’.97 In concrete terms, while the ICJ’s judgment in Nicaragua98 may not have contributed to settling the dispute as in fact it even prompted the United States to withdraw its optional-clause declaration, the decision nonetheless reasserted the continuing validity of the prohibition of the use of force amidst the contrary practice of the two superpowers at the time.99 Another public function of ICT s is their perceived role in the control and legitimation of public authorities, that is, in a separation-of-powers or checks-and-balances perspective domestically and internationally.100 In a vertical dimension, ICT s monitor State compliance with international legal norms, as exemplified by regional human rights courts,101 particularly in the European context.102 At the international level the ICJ, as the principal judicial organ of the UN, exercises a governance function, if not oversight, through its rulings, including the ICJ’s orders on requests for interim measures.103 The third public function of ICT s is enforcement. By enforcement means the act of primarily naming a State practice as legal or illegal, and secondarily authorizing remedies designed to compensate victims and create costs associated with illegal behavior.104 The typical illustration is international criminal justice whose one of the key functions is deterrence.105 Following the ICJ’s Reparation advisory opinion, ICT s are certainly international legal persons no different from international organizations. They possess a distinct personality and have been conferred powers and duties by 97

Hersch Lauterpacht, The Development of International Law by the International Court (Praeger 1958) 6–7. 98 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14. 99 von Bogdandy and Venzke (n 87) 54. 100 Ibid 57–8. 101 Dinah Shelton, ‘Form, Function, and the Powers of International Courts’ (2009) 9 Chicago JIL 537, 564–6. 102 Yaël Ronen, ‘Functions and Access’, in William A Schabas and Shannonbrooke Murphy (eds), Research Handbook on International Courts and Tribunals (Elgar 2017) 463, 469. See Case of Karner v Austria, App No 40016/98, 38 Eur Ct HR 24, 24–26 (2003), para 26. 103 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v United Kingdom) (Provisional Measures) Order of 14 April 1992 [1992] ICJ Rep 3. 104 Karen J Alter, ‘The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review’, Northwestern University Faculty Working Papers, Paper 212 (2012), 6. 105 José E Alvarez, ‘What are International Judges For? The Main Functions of International Adjudication’ in Cesare PR Romano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2013) 159, 174.

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States. However, legal existence is one thing; effective participation is quite another. This is the next critical phase following the creation of ICT s – their actual exercise of their mandate and the concomitant ability to regulate international conduct. 5

‘Effective Participation’ of International Courts and Tribunals through Regulation of International Conduct

In the course of their legal existence ICT s affect the behavior of other international actors through the issuance of decisions. The impact of these decisions cascades in three stages. First, decisions, individually taken, serve at the very least a source of obligation upon the disputing parties. Next, as they accumulate through time, decisions serve as a source of law for the international community at large. Finally, the notable increase in the number of legal dispute-settlement mechanisms post-Second World War, or what is famously regarded as the ‘proliferation of ICT s’,106 has led to the development of specialized fields of international law. Together, these three stages enable ICT s to transcend their de jure legal personality and be de facto ‘effective actors’107 at the same time. 5.1 Decisions as Source of ‘Obligation’ As a starting proposition, decisions of ICT s, in the individual sense, impose obligations on the disputing parties as a matter of law.108 In practice, these decisions also show the considerable influence of ICT s on the conduct of States. Under Article 26 of the VCLT, ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. The same principle applies to the constitutive instruments of ICT s, considering that they too are ‘international agreement[s] concluded between States in written form and governed by international law’.109 As regards the decisions of the ICJ, Article 94(1) of the UN Charter obligates ‘[e]ach Member of the United Nations […] to comply with the decisions of the International Court of Justice in any case to which it is a party’. Similarly, States Parties to the treaties creating the European Court of Human Rights, Inter-American Court of Human Rights and African Court on 106 Anne Peters, ‘The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization’ (2017) 15 I CON 671, 672. 107 See sec 3.2 discussing actor conception of international legal personality. 108 Alain Pellet, ‘Decisions of the ICJ as Sources of International Law?’ [2015] Gaetano Morelli Lectures 1, 11. 109 VCLT (n 59) art 2(1)(a).

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Human and People’s Rights explicitly undertake ‘to abide by’110 or ‘to comply with’111 the judgments of these regional human rights courts ‘in any case to which they are parties’. This duty to comply is also enshrined in the ICSID Convention,112 UN Convention on the Law of the Sea,113 and the WTO Dispute Settlement Understanding.114 Of course, the existence of an obligation is one thing, the fulfillment of the obligation is quite another. Indeed, compliance with judicial and arbitral decisions could very well be a measure of the perceived legitimacy of ICT s by States.115 Further, it serves as a ‘“litmus test” of judicial effectiveness’116 on the premise that ‘a tribunal is effective if [S]tates comply with its judgment’.117 For its part, the ICJ enjoys a ‘generally satisfactory compliance’118 record. Former ICJ President Abdulqawi Ahmed Yusuf remarked, ‘Compliance with the Court’s judgments is not only satisfactory, but nearly total’.119 Among the regional human rights courts the European Court of Human Rights is perhaps one of the most effective, with its judgments being largely complied with by Member States.120 In State-to-State arbitration, arbitral awards are likewise generally implemented since States often prefer to end a dispute rather than incur the political costs of refusing to accept a decision.121 Similarly, the great majority of ICSID

110 111 112 113 114 115 116 117 118 119 120 121

ECHR (n 93) art 46(1). ACHR (n 94) art 68(1); African Charter Protocol (n 95) art 30. ICSID Convention (n 57) art 53(1). UN Convention on the Law of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) art 11 of Annex VII. World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes (concluded 15 April 1994, entered into force 1 January 1995) 1869 UNTS 401 (WTO DSU) art 21(1). Alexandra Huneeus, ‘Compliance with Judgments and Decisions’ in Cesare PR Romano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2013) 437, 441. Yuval Shany, Assessing the Effectiveness of International Courts (OUP 2014) 117. Eric Posner and John Yoo, ‘Judicial Independence in International Tribunals’ (2005) 93 California L Rev 1, 28. Constanze Schulte, Compliance with Decisions of the International Court of Justice (OUP 2004) 403. Speech of HE Mr Abdulqawi Ahmed Yusuf, President of the International Court of Justice Before the Royal Academy of Belgium, ‘The Strengths and Challenges for Supranational Justice: The Growing Role of the International Court of Justice’, 12 November 2018, para 18. Chiara Giorgetti, ‘What Happens after a Judgment is Given? Judgment Compliance and the Performance of International Courts and Tribunals’ in Theresa Squatrito et al (eds), The Performance of International Courts and Tribunals (CUP 2018) 324, 334. John G Merrills, International Dispute Settlement (6th edn, CUP 2017) 121.

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awards are respected.122 Compliance within the WTO regime has also been successful owing to the threat of retaliation making non-compliance costly and thus less likely.123 5.2 Decisions as Source of Law Under Article 59 of the Statute of the ICJ and its counterpart provision in the constitutive instruments of other ICT s,124 the rule of stare decisis or the doctrine of precedent does not apply. Then again, prevailing practice instructs otherwise. As Judge Zoricic clarifies in his dissenting opinion to the Peace Treaties advisory opinion,125 ‘If a precedent is firmly based on such a principle [of international law], the Court cannot decide an analogous case in a contrary sense, so long as the principle retains its value’.126 Echoing the same view, the ICJ explains in the Temple of Preah Vihear127 that although the binding force of a decision is limited to the parties, the decision may nonetheless be considered as ‘a statement of what the Court regarded as the correct legal position’.128 In other words, while Article 59 of the Statute of the ICJ excludes the applicability of the doctrine of precedent, it does not render decisions of the ICJ totally bereft of precedential value.129 They may not be ‘binding precedents’, but they remain to be precedents.130 Ultimately therefore, the real issue is not so much the binding character of previous decisions as ‘whether […] there is cause not to follow the reasoning and conclusions of earlier cases’.131 The same obtains from the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICTR. In Aleksovski,132 the ICTY Appeals Chamber held that ‘in the interests of certainty and predictability, the 122 Stanimir A Alexandrov, ‘Enforcement of ICSID Awards: Articles 53 and 54 of the ICSID Convention’ in Christina Binder et al (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009) 322, 329. 123 Huneeus (n 115) 450. 124 ECHR (n 93) art 46(1); ACHR (n 94) art. 68(1); African Charter Protocol (n 95) art 30; UNCLOS (n 113) art 296(2); ICSID Convention (n 57) art 53(1). 125 Interpretation of Peace Treaties (Advisory Opinion) [1950] ICJ Rep 65. 126 Ibid 104 (Judge Zoricic, Dissenting Opinion). 127 Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) [1961] ICJ Rep 17. 128 Ibid 27. 129 Mohamed Shahabuddeen, Precedent in the World Court (CUP 1996) 107. 130 Ibid 2. 131 Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) [1998] ICJ Rep 275, 292. 132 Prosecutor v Zlatko Aleksovski, ICTY Appeals Chamber, Case No IT-95-14/1-A, Judgment, 24 March 2000.

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Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice’.133 The ICTR Appeals Chamber adopted the same position shortly thereafter in Semanza.134 As regards the International Criminal Court (ICC), Article 21(2) of the Rome Statute135 allows the ICC ‘[to] apply principles and rules as interpreted in its previous decisions’. The same practice can be observed from the WTO,136 and not surprisingly so. Precisely the dispute settlement system of the WTO is meant to ‘provid[e] security and predictability to the multilateral trading system’.137 Reference to previous decisions is likewise very high in inter-State arbitration138 and arbitration proceedings involving sports and internet domain names.139 Although ICSID tribunals sometimes appear to have opposite views on novel issues, nonetheless their reasoning still takes into account previous awards and in the event of disagreement, justifies their departure from these earlier decisions.140 More remarkably, not only do ICT s generally cite their own decisions, but they also refer to the decisions rendered in different jurisdictions, or what Judge Buergenthal refers to as ‘international judicial cross-fertilization’.141 For example, the ICJ cites decisions of the ICTY and ICTR in Bosnian Genocide142 in much the same way that the Inter-American Court of Human Rights draws on decisions of the European Court of Human Rights and those of the ICJ. Similar practice can be observed from the investor-State arbitrations. Presumably, this 133 Ibid para 107. 134 Laurent Semanza v The Prosecutor, ICTR Appeals Chamber, Case No ICTR-97-20-A, Judgment, 31 May 2000, para. 92. 135 Rome Statute of the International Criminal Court (concluded 17 July 1998, entered into force 7 July 2002) 2187 UNTS 3. 136 Japan  – Taxes on Alcoholic Beverages, WTO Appellate Body Report, 4 October 1996, WT/DS8/AB/R, at 14; United States Import Prohibition of Certain Shrimp and Shrimp Products, WTO Appellate Body Report, 12 October 1998, WT/DS58/AB/R, para. 109. 137 WTO DSU (n 114) art 3.2. 138 Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 JIDS 5, 15. 139 Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse? The 2006 Freshfields Lecture’ (2007) 23 Arbitration Intl 357, 365–68. 140 See Andrés Rigo Sureda, ‘Precedent in Investment Treaty Arbitration’ in Christina Binder et al (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009) 830, 836–9 for a survey of ICSID arbitral awards. 141 Thomas Buergenthal, ‘Lawmaking by the ICJ and Other International Courts’ (2009) 103 AS Intl L Proceedings 397, 405. 142 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 121, 123, 125–7, 167, 191.

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emerging practice of cross-referencing among ICT s can be attributed to the integrative potential of Article 38(1)(d) of the Statute of the ICJ. By acknowledging ‘judicial decisions […] as subsidiary means for the determination of rules of law’ Article 38(1)(d) ‘offers a basic communicative framework for the “production of communitarian semantics” that allows for the development of an international judicial system’.143 The role of judicial and arbitral decisions as a source of law is perhaps best evidenced by the rather ‘harmonious “partnership” between ICT s and the ILC’144 so much so that pronouncements of ICT s are treated like mathematical formulas and ‘appear as being rules set in stone, enunciating the fundamental principles in that central field of international law’.145 A careful scrutiny of the Articles on State Responsibility would reveal the extensive reference by the ILC to not only the ICJ and PCIJ but also ad hoc criminal tribunals, regional human rights courts and even arbitral tribunals. This ‘partnership between ICT s and the ILC’ is further confirmed in the Reports on Identification of Customary International Law. In the view of Special Rapporteur Sir Michael Wood judgments of the ICJ and PCIJ ‘shed much light on the general approach to the formation and evidence of customary international law (when ‘[w]hat “is” becomes what “must be”’)’.146 Draft Conclusion 9(3) of the Second Report on Jus Cogens likewise reads, ‘Judgments and decisions of international courts and tribunals may also serve as evidence of acceptance and recognition for the purposes of identifying a norm as a jus cogens norm of international law.’ In other words, while individually the decisions of ICT s do not bind third parties, collectively they nonetheless serve as a ‘subsidiary means for the determination of rules of law’ conformably with Article 38(1)(d) of the Statute of the ICJ.147 Thus, in fulfilling their adjudicative function, ICT s become effective participants in the international plane by contributing to the development of international law. 5.3 Decisions as Trailblazers of New Areas of Law Individually equipped with their respective subject-matter jurisdiction, ICT s, as they exist today, have a role to play in specific areas of law. Simply put, with 143 Mads Andenas and Johann Ruben Leiss, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 Heidelberg JIL 907, 908. 144 See Christian J Tams, ‘The ICJ as a “Law-Formative Agency”: Summary and Synthesis’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 377, 386 referring to the ICJ and the ILC. 145 See Pellet (n 108) 24, referring to judgments of the ICJ and PCIJ. 146 Michael Wood, Special Rapporteur, First Report on Identification of Customary International Law, UN Doc A/CN.4/663 (2013), at 21, para 54. 147 See Pellet (n 108) 16–30.

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the creation of different ICT s also came the emergence of specific fields of international law. The first is international criminal law or the ‘law on the core international crimes’.148 Indeed, with its application being ‘exclusively’149 a judicial exercise, international criminal law has been extensively molded by international ad hoc tribunals.150 For instance, the statutes and elaborate case law of the International Military Tribunal for Nuremberg,151 International Military Tribunal for the Far East,152 ICTY,153 and ICTR154 contributed to the identification of war crimes and crimes against humanity. Another legacy of the ad hoc tribunals, particularly the ICTY and the ICTR, is the prosecution of sexual violence as an international crime, breaking what used to be the prevailing ambivalent perception that sexual violence is mere collateral damage in times of war.155 Finally, ad hoc tribunals have successfully asserted their independent judgment on specific issues, such as the application of the overall control test156 instead of the effective control standard set by the ICJ in Nicaragua, in the determination of the nature of the armed conflict. The second field to have developed by ICT s is human rights law. In the early years of the ICJ, its engagement with human rights considerations was limited 148 Larissa van den Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’ in Curtis A Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016) 230, 231. 149 Ibid 232. 150 Nicolaos Strapatsas, ‘The International Criminal Judgments: From Nuremberg to Tadić to Taylor’ in William A Schabas and Shannonbrooke Murphy (eds), Research Handbook on International Courts and Tribunals (Elgar 2017) 79. 151 Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis (concluded 8 August 1945, entered into force 8 August 1945) 82 UNTS 279. 152 Charter for the International Military Tribunal for the Far East (enacted 26 April 1946) TIAS No 1589, at 11, 4 Bevans 27. 153 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, UN Doc No S/Res/808 (1993). 154 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, UN Doc No S/Res/955 (1994). 155 Kelly-Jo Bluen, ‘Globalizing Justice, Homogenizing Sexual Violence: The Legacy of the ICTY and ICTR in Terms of Sexual Violence’ (2016) 110 AJIL 214, 215. 156 Prosecutor v Dusko Tadić, ICTY Appeals Chamber, Case No IT-94-1-A, Judgment, 15 July 1999, at 47–62, paras 115–146.

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and rather incidental,157 as illustrated by its obiter dictum on erga omnes obligations in Barcelona Traction.158 Beginning in 1998, the docket of the ICJ changed,159 allowing it to address human rights issues more directly such as the right to consular notification upon arrest,160 right to self-determination161 and prohibition of torture,162 among others. Still, much of what human rights law is at present is attributable to the rich jurisprudence of the human rights systems in Europe, the Americas and Africa.163 To a large extent, this is because of the propensity of regional human rights courts to view human rights treaties as ‘living instrument[s] which must be interpreted in the light of present day conditions’.164 As a result, interpretation of human rights obligations is generally more liberal in favor of guaranteeing the enjoyment of fundamental freedoms than safeguarding State prerogatives.165 The third is the law of the sea, developed co-extensively by different ICT s. A review of the case law of the ICJ would show its significant contribution to the issue of maritime delimitation so much so that the law used to be in a state of flux for quite some time between the equidistance method on the one hand, and the application of equitable principles or the search for equitable results on the other.166 Similarly, ad hoc tribunals enunciated significant 157 Bruno Simma, ‘Human Rights Before the International Court of Justice: Community Interest Coming to Life?’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 301, 304–6. 158 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 32. 159 Hisashi Owada, ‘The Changing Docket of the International Court of Justice and the Significance of the Change Going Forward’ (2009) 103 AS Intl L Proceedings 399, 399. 160 LaGrand (Germany v United States) (Merits) [2001] ICJ Rep 466; Avena and Other Mexican Nationals (Mexico v United States) (Merits) [2004] ICJ Rep 12. 161 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 162 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [2012] ICJ Rep 422. 163 Dinah Shelton, ‘The Human Rights Judgments: The Jurisprudence of Regional Human Rights Tribunals – Lex Specialis or Lex Regionis?’ in William A Schabas and Shannonbrooke Murphy (eds), Research Handbook on International Courts and Tribunals (Elgar 2017) 50, 50. 164 Tyrer v United Kingdom (1980) 2 EHRR 1, para 31; Loizidou v Turkey (1995) 20 EHRR 99, 102; Stec and Others v United Kingdom (2006) 43 EHRR 47; Demir and Baykara v Turkey (2009) 48 EHRR 54; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, IACtHR, Series A, No 16 (1999), paras 114–15. 165 Shelton (n 163) 62–3. 166 Guillaume (n 138) 11.

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principles. In South China Sea,167the Tribunal interpreted the phrase ‘capable of human habitation’ for a rock to qualify as an island. Meanwhile, the Tribunal in Guyana/Suriname168 laid down the obligations of States pending a maritime delimitation dispute. Only recently, the ITLOS issued its first advisory opinion169 about illegal, unreported and unregulated fishing activities. As shown, ICT s are not only international legal persons upon creation, but more importantly become ‘effective participants’ in the international legal order. Through the decisions they issue, ICT s are able to influence, if not regulate, international conduct. Unavoidably, States will respond or perhaps even resist, the adjudicative function of ICT s. 6

Regulating the Conduct of International Courts and Tribunals

Another consequence of international legal personality is being subject to regulation.170 As regards ICT s, regulation is more indirect largely because of the absence of a treaty or custom analogous to the Articles on State Responsibility. Instead, States have devised ingenious ways in resisting judicial and arbitral decisions. 6.1 Critique of Judicial Functioning The first classic form of resistance partakes of a critique of the judicial functioning of ICT s. States manifest this resistance in at least four different ways, namely (i) non-participation in the proceedings; (ii) non-compliance with decisions; (iii) subsequent repudiation of judicial or arbitral principles; and (iv) withdrawal of membership. States can express their resistance to ICT s by their deliberate refusal to participate in the proceedings. With respect to the ICJ, States either refuse to submit a formal written or oral statement, or choose not to appoint an agent.171 To name but a few, completely non-appearing respondents refuse to appoint

167 South China Sea arbitration (Republic of the Philippines v People’s Republic of China), PCA, Case No 2013-19, Award, 12 July 2016, para 504. 168 Guyana/Suriname arbitration, 8 PCA Award Series 1, 178–82 (2012). 169 Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2015 ITLOS Rep 4. 170 See UN ILC, Report of the International Law Commission on the Work of its Fifty-Third Session, UN Doc No A/56/10 (2001), at 34, para 7. 171 James D Fry, ‘Non-Participation in the International Court of Justice Revisited: Change or Plus Ça Change’ (2010) 49 Columbia J Transnatl L 35, 43.

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an agent in Aegean Sea,172 Tehran Hostages,173 and Fisheries Jurisdiction.174 More provocatively, a non-participating State maintains an appearance of not fully cooperating. A case in point is the refusal of France’s representatives to wear counsel’s robes during the Nuclear Tests175 hearings before a full bench wearing its robes.176 In inter-State arbitration, non-participation is also gradually becoming apparent. Perhaps, the first recorded non-appearance is the Monetary Gold arbitration177 where Albania refused to participate. The other two instances of non-participation happened in the context of Annex-VII UNCLOS proceedings, namely Arctic Sunrise178 and South China Sea179 where Russia and China chose not to appear, respectively. Non-compliance with decisions of ICT s is another form of resistance by States. A study of the ICJ’s judgments from 1987 to 2003 reveals that although no State has been directly defiant, ‘five [judgments] have met with less compliance than others’.180 By the same token, Russia and the United Kingdom have resisted the judgments of the European Court of Human Rights,181 declaring the incompatibility of blanket voting bans on convicted prisoners with the regional human rights treaty. A similar pattern of resistance is beginning to unveil in the enforcement of ICSID awards. Argentina for its part declined to compensate ICSID award creditors for about six years and conditioned the payments upon additional local enforcement proceedings in Argentinian courts.182 What finally convinced Argentina to comply with its obligations were several economic measures from States and international financial institutions, such as suspending Argentina’s preferential trade status under United

172 Aegean Sea Continental Shelf case (Greece v Turkey) (Judgment) [1978] ICJ Rep 3. 173 United States Diplomatic and Consular Staff in Tehran (United States v Iran) (Judgment) [1980] ICJ Rep 3. 174 Fisheries Jurisdiction case (United Kingdom v Iceland) (Judgment) [1974] ICJ Rep 3. 175 Nuclear Tests cases (n 67). 176 Fry (n 171) 60. 177 ‘Arbitral Opinion Relative to the Gold of the National Bank of Albania’ (1955) 49 AJIL 404, 404. 178 Arctic Sunrise arbitration (Netherlands v. Russia), PCA, Award on Jurisdiction, 26 Novem­ ber 2014. 179 South China Sea arbitration (Republic of the Philippines v People’s Republic of China), PCA, Award on Jurisdiction and Admissibility, 29 October 2015, paras 10, 14. 180 Colter Paulson, ‘Compliance with Final Judgments of the International Court of Justice since 1987’ (2004) 98 AJIL 434, 436–7. 181 Hirst v United Kingdom (No 2) 2005-IX; 42 EHRR 41; Scoppola v Italy (No 3) 56 EHRR 19. 182 Moshe Hirsch, ‘Explaining Compliance and Non-Compliance with ICSID Awards: The Argentine Case Study and a Multiple Theoretical Approach’ (2016) 19 J Intl Economic L 681, 682.

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States legislation and impeding Argentina from obtaining loans from the World Bank and the Inter-American Development Bank.183 Moreover, States still retain an important role in determining whether the pronouncements of ICT s apply beyond the confines of the particular dispute in which they were enunciated.184 After all legal principles formulated by ICT s in the discharge of their adjudicative function can only gain universal relevance ‘if accepted by States through some form of initial, ongoing, or ex post facto consent’.185 To illustrate, in Lotus,186 the Permanent Court of International Justice allowed Turkish authorities to prosecute a French captain whose boat struck a Turkish vessel on the high seas. However, because this rule of extraterritorial jurisdiction did not serve State interests, the judicial pronouncement was eventually rejected in a subsequent treaty.187 To be precise, Article 6(1) of the Convention on the High Sea188 granted exclusive jurisdiction to the flag State over ships sailing the high seas. Arguably, the same form of resistance is present in the field of international criminal law with the ‘ICC era of codification’.189 Omitting altogether the phrase ‘customary international law’, Article 21 of the ICC Statute is perceived to be pre-emptive of judicial law-making in reaction of the Member States to the ‘overreliance on custom in a similar zealous spirit as the ICC’s ad hoc predecessors’.190 Within the WTO, albeit the reverse consensus rule effectively renders the adoption of panel and Appellate Body reports a mere formality, Article IX:2 of the WTO Agreement reserves the ultimate interpretive authority to WTO Members.191 Hence, while the responsibility for clarifying the provisions of the WTO covered agreements lies mainly, if not exclusively, with panels and the Appellate Body, the ultimate interpretive authority lies with WTO Members but in practice panels and the Appellate Body exercise interpretive autonomy.192

183 184 185 186 187 188 189 190 191 192

Ibid 699–700. van den Herik (n 148) 233. Ibid. Case of the SS Lotus (France v Turkey) 1927 PCIJ (Ser A) No 10. Tom Ginsburg, ‘Bounded Discretion in International Judicial Lawmaking’ (2004) 45 Virginia JIL 631, 646. Convention on the High Seas (concluded 29 April 1958; entered into force 30 September 1962) 450 UNTS 11. van den Herik (n 148) 235. Ibid 243. Isabelle van Damme, ‘Jurisdiction, Applicable Law, and Interpretation’ in Daniel L Bethlehem et al (eds), The Oxford Handbook of International Trade Law (OUP 2009) 299, 338. Ibid 338–9.

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Fourth and perhaps the ultimate political constraint is the subsequent withdrawal from the compulsory jurisdiction of the ICT.193 The decisions by France and the United States to exit the optional-clause regime of the ICJ after adverse decisions in Nuclear Tests194 and Nicaragua195 are two classic examples.196 The sudden turnaround of the ICJ in South West Africa197 similarly led to an effective boycott of the ICJ’s jurisdiction by newly decolonized States who perceived the ICJ as an allegedly biased, ‘colonialist’ tribunal.198 Similarly the Inter-American Court of Human Rights faced resistance in the form of withdrawal or threats of withdrawal from at least four States Parties, namely Trinidad and Tobago, Venezuela, Peru, and the Dominican Republic.199 Among the four, the first two ended up withdrawing. There are also clear signs of discontent in the realm of investor-State arbitration. States like Bolivia, Ecuador and Venezuela have responded by disengaging from the investment treaty system and withdrew from the ICSID Convention.200 Others terminated investment treaties or refused to include investor-State arbitration provisions in new treaties.201 6.2 Critique of Institutional Setup The second category of resistance relates to the critique of the institutional framework of ICT s, such as budgetary constraints, appointment or election of judges and arbitrators, and the total dissolution of the ICT concerned. Because ICT s are State-funded, a soft strategy employed by States is tampering with their budgets.202 In some cases, threats of withdrawal of funding might challenge the de facto authority of the court or tribunal.203 To illustrate, the ICJ’s decision in South West Africa not to proceed to the merits phase 193 194 195 196 197 198 199 200 201 202 203

Ginsburg (n 187) 658. Nuclear Tests cases (n 67). Nicaragua v United States (n 98). Ginsburg (n 187) 658. South West Africa, Second Phase (Ethiopia v South Africa; Liberia v South Africa) (Judgment) [1966] ICJ Rep 6. Edward McWhinney, ‘The International Court of Justice and International Law-Making: The Judicial Activism/Self-Restraint Antinomy’ (2007) 5 Chinese JIL 3, 10. Ximena Soley and Silvia Steininger, ‘Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights’ (2018) 14 Intl JL in Context 237, 243. Anthea Roberts, ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55 Harvard ILJ 1, 27. Ibid. Mikael Rask Madsen, Pola Cebulak and Micha Wiebusch, ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14 Intl JL in Context 197, 211. Ibid.

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incurred the wrath of newly independent African States and several developed States so much so that the UN General Assembly’s Fifth Committee refused to adopt supplementary estimates to the court.204 Further, the UN General Assembly can wield its power of the purse to control the Security Council, as what happened with the first budgets of the ICTY.205 The second relates to the blocking of certain candidates for appointment typically because the candidate is perceived to represent a particular direction of international law that is unfavourable to some Member States. The best example is the aftermath of the South West Africa culminating in the unexpected defeat of candidates who were being ‘punished’ for their respective State’s vote after the remarkable volte-face by the ICJ on an almost identical procedural issue only four years earlier.206 Quite possibly also, States would continuously block appointments, not because of political opposition to a particular judge, but to render the ICT non-functional.207 Currently facing such a situation is the WTO Appellate Body as a result of the United States continuously blocking nominations for new appointments.208 Resistance to an ICT can also be expressed by the creation of a new legal institution intended to either replace or co-exist alongside an existing ICT.209 An example of the former is the Court of the Eurasian Economic Union replacing the judicial body of the Eurasian Economic Community.210 On the other hand, if the new legal institution is meant as a parallel institution, the authority of the existing ICT can still be impaired in part or in full.211 This is because the co-existence of various ICT s with overlapping jurisdictions can create the option of avoiding an ICT by ‘forum shopping’, effectively depriving the original ICT of the possibility to fully exercise its jurisdiction.212 This is best illustrated by the UNCLOS regime giving States two other avenues of dispute settlement, namely ITLOS and ad hoc arbitration, as an alternative to the ICJ.213 204 Thordis Ingadóttir, ‘The Financing of International Adjudication’ in Cesare PR Romano, Karen J Alter and Yuval Shany (eds), The Oxford Handbook of International Adjudication (OUP 2013) 594, 610. 205 Ibid. 206 McWhinney (n 198) 11. 207 Madsen, Cebulak and Wiebusch (n 202) 211. 208 Ibid. 209 Madsen, Cebulak and Wiebusch (n 202) 209. 210 Ibid 209–10. 211 Ibid 210. 212 Ibid. 213 UNCLOS (n 113) art 287.

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6.3 Effects on ICT s Resistance by States certainly affects the adjudicative function of ICT s. At least three can be identified as the most apparent. These are avoidance of politically sensitive legal disputes, bias in adjudication and propensity to render Solomonic decisions. One profound consequence of the resistance by States to the adjudicative function of ICT s is the propensity of the latter to avoid politically sensitive legal disputes. In the case of the ICJ, a common strategy employed is declining jurisdiction on the basis of preliminary objections.214 By way of example in Marshall Islands215 the ICJ upheld the objection raised by the United Kingdom that there was no dispute,216 thereby shielding the ICJ from being drawn into the politically sensitive issue relating to nuclear weapons. An alternative avoidance strategy is to exercise jurisdiction but to adjudicate in a way that sidesteps the most politically sensitive issues.217 The Kosovo Advisory Opinion,218 for instance, has been criticized for doing just this. While the ICJ found that it has jurisdiction over the request, the ICJ skirted the core issue of the dispute, namely Kosovo’s right to self-determination.219 Because of the inherently political nature of the appointment or election of judges and arbitrators several studies attempt to explore their alleged biases in adjudication. One study about the ICJ reveals that judges rarely vote against their home States, and that they favor States whose wealth level is close to that of their own State.220 The research also shows connections, although weaker ones, between judges’ voting patterns and the interests of the party that is politically or culturally most similar to that of the judge’s home country.221 Meanwhile, according to a study about the voting patterns on the European Court of Human Rights, while judges tend to favor their own home country when it is a party to a dispute, they do not generally exhibit cultural or

214 Jed Odermatt, ‘Patterns of Avoidance: Political Questions Before International Courts’ (2018) 14 Intl JL in Context 221, 227, 231. 215 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Judgment) [2016] ICJ Rep 833. 216 Ibid para 52. 217 Odermatt (n 214) 233. 218 Kosovo advisory opinion (n 161). 219 Odermatt (n 214) 233. 220 Eric A Posner and Miguel FP de Figueiredo, ‘Is the International Court of Justice Biased?’ (2005) 34 JLS 599. 221 Ibid.

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geopolitical biases, and the court as a whole can be considered independent222 The study further offers additional interesting analysis, showing that career background makes a difference, with former diplomats being more supportive of national governments.223 In arbitration where parties usually appoint their respective arbitrators, a study examines the 150 published decisions in investor-State proceedings. Based on the 150 decisions, compared to the presiding arbitrator who rarely dissents a party-appointed arbitrator issued a dissenting opinion in 34 cases or approximately 22 percent of the 150 cases.224 Even more telling, nearly all of those 34 dissenting opinions were issued by the arbitrator appointed by the party that lost the case in whole or in part.225 The statistics certainly do not augur well for the impartiality of arbitrators, considering that “the parties are careful to select arbitrators with views similar to theirs.” Another ramification of the political backclash from States is the tendency of ICT s to render Solomonic judgments.226 Perhaps, this is another technique by which the ICJ avoids entering a final judgment that is likely to be disobeyed. This might explain why in Bosnian Genocide227 the ICJ appears to have been overly lenient towards Serbia,228 why in Oil Platforms229 neither side actually won what it asked for but also neither side totally lost,230 or in Peru v. Chile231 rather than adopting the position of one of the parties – either an agreement existed reaching to 200 nautical miles or there was no agreement – the ICJ split the pie between Peru and Chile.232 Splitting-the-baby is likewise perceived as the reality in international arbitration. Evidence of this perception can be seen in the parties’ failure to agree on valuation, particularly between States’ 222 Erik Voeten, ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’ (2008) 102 APSR 417. 223 Ibid. 224 Albert Jan van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’ in Mahnoush H Arsanjani et al (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Brill 2010) 821, 824. 225 Ibid. 226 Nienke Grossman, ‘Solomonic Judgments and the Legitimacy of the International Court of Justice’ in Nienke Grossman et al (eds), Legitimacy and International Courts (CUP 2018) 43. 227 Bosnian Genocide (n 142). 228 Vojin Dimitrijević and Markko Milanović, ‘The Strange Story of the Bosnian Genocide Case’ (2008) 21 LJIL 65, 85. 229 Oil Platforms (Iran v United States) (Judgment) [2003] ICJ Rep 161. 230 Lori Fisler Damrosch, ‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful or in Between?’ (2012) 25 LJIL 135, 144. 231 Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3. 232 Grossman (n 226) 51.

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non-quantified or zero-damages positions and investors’ claims.233 One reason for this perception is the competency of arbitrators: ‘Given that assessment of damages […] may be a complex exercise requiring knowledge of financial analysis and economic models, “splitting the baby” may offer itself as an attractive option when tribunals get lost in the intricacies of valuation techniques’.234 Compromise between arbitrators is another reason why awards might seem to split the baby.235 By the same token, this can also undermine the legitimacy of valuations considering that an award “not supported by articulated reasons does disservice to the credibility of the outcome.”236 All in all the effective participation of ICT s in the international plane does not purely involve their discharge of their adjudicative function. Rather they also need to contend and respond properly with the resistance of States. Until and unless they do, ICT s are at the risk of undermining their own international legal personality. 7

Conclusion

International law is always described in the literature as a horizontal system, with no executive, legislature, or judiciary of its own. Decentralized as it already is, international law would greatly benefit from a normative framework identifying not just any actor or participant, but only the relevant ones. This is the raison d’etre of the doctrine of international legal personality. Much like in the municipal sphere, those endowed with international legal personality are considered legitimate and independent users of the law. As aptly observed by legal scholars,237 the ultimate practical effect of international legal personality is ‘selective personification’ as capacity can only exist as a correlative to incapacity. Interestingly, not one study has ever looked into the legal personality of ICT s. According to recent studies, compliance with international court judgments and arbitral awards is generally high. The question is, why. Why do States opt to obey judicial and arbitral decisions in international proceedings? At first blush, one would be tempted to argue that compliance is borne out of State 233 Joshua B Simmons, ‘Valuation in Investor-State Arbitration: Toward a More Exact Science’ (2012) 30 Berkeley JIL 196, 210–11. 234 Ibid 211. 235 Markham Ball, ‘Assessing Damages in Claims by Investors against States’ (2001) 16 ICSID Rev 408, 425. 236 Ibid 427. 237 Barbara (n 19) 23; Brölmann and Nijman (n 23) 1.

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consent, which in turn arises from the treaty creating the ICT concerned. Then again, this would still not explain why even third States generally respect such decisions. In fact, these decisions could also at times trigger the emergence of a principle or a specialized field of international law. The paper seeks to address these concerns. Particularly, the paper posits that judicial and arbitral decisions matter in the current legal order. They matter not merely out of State consent, but because States themselves perceive ICT s as relevant entities in the international plane. Such opposability of conduct between States and ICT s is not readily apparent in the treatment of States towards other non-State entities, such as international non-governmental organizations, multinational corporations, and individuals. To clarify, the paper does not exclude the possibility that these non-State entities could also become international legal persons. However, for purposes of applying the doctrine of international legal personality, the paper underscores that ICT s would appear to be in the same level of international organizations, at least in the current legal order. To explain how ICT s become legal persons in the international plane, the paper adopts a hybrid theory consisting of the recognition and actor conceptions of international legal personality. Considering the continuing predominant role of States, the recognition conception remains highly relevant. Pursuant to the recognition conception, an ICT acquires legal personality through States’ will, usually manifested in the conclusion of treaties. Meanwhile, the actor conception explores the practical aspect and measures how effective the entity is as a ‘participant’ in the international sphere. To be sure, the actor conception is equally important as the recognition conception for the former is able to delineate the effective ICT s from ‘“paper [ICT s]”, namely [ICT s] that – regardless of the existence of treaties formally establishing them – never have come into operation for various reasons’.238 One study actually documents how a large number of ICT s that were proposed during the twentieth century ‘never saw the light of day’.239 Applying the recognition conception of the proposed hybrid theory, the paper argues that ICT s are de jure legal persons. To recall, in its Reparation advisory opinion, the ICJ traced the international legal personality of the UN to the UN Charter. In the view of the ICJ, the UN Charter conferred the UN a distinct personality and granted it privileges and immunities, powers, and functions. The same test can be applied to the constitutive instruments of ICT s. 238 Madsen, Cebulak and Wiebusch (n 202) 209. 239 Suzanne Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’ (2014) 55 Harvard ILJ 151, 151.

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Indeed, a careful review of the treaties creating the ICJ, ITLOS, and ICSID, for example, would reveal how unlike international organizations, ICT s actually enjoy a far greater autonomy. While Member States remain represented in the proceedings of an international organization like the UN, judges and arbitrators are duty-bound to be independent. Simply put, they do not act as agents of any State. Apart from their distinct identity, ICT s also possess and sometimes expressly invoke their so-called ‘inherent powers’, and fulfill both public and private duties as they discharge their adjudicative function. Transcending their de jure legal personality, ICT s are likewise de facto legal persons. Conformably with the actor conception, ICT s act in legally relevant ways. This is most evident in the cascading effect of the judicial and arbitral decisions they issue. Their effect is three-pronged. Individually taken, the decisions of ICT s serve at the very least a source of obligation upon the disputing parties. As they accumulate through time, decisions serve as a source of law for the international community at large. Finally, the apparent ‘proliferation of ICT s’ paved the way for the emergence of specialized fields of international law. Conversely, as part of the ‘community of States’, ICT s also become subject to regulation albeit formal mechanisms of restraint are yet to evolve. Such mechanisms need not be exactly the same as the rules of international responsibility applicable to States and international organizations. One possible framework worth exploring is the prospect of an international and hierarchical judiciary that would allow the review of court judgments or arbitral awards by a superior body akin to a supreme court in domestic jurisdictions. Contrary to the prevailing impression, establishing the legal personality of ICT s is not just an academic exercise. On the contrary, it is a very fertile ground for legal research and would benefit from a deeper consideration by the legal community, including the International Law Commission, particularly as regards the creation of a regime governing the accountability of ICT s under international law.

2

Investment Arbitration as a Forum for Enforcement of Commercial Arbitration Awards Aniruddha Rajput Abstract

Some investment tribunals have taken an approach that failure to enforce a commercial arbitration award would result in breach of an investment treaty. The primary concern of some of these tribunals has been to provide a forum for enforcement of commercial arbitration awards when national courts have declined to do so under one of the grounds provided under the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards. This practice raises some questions that relate to the jurisdiction and substantive treatment standards. The jurisdictional obstacle is whether a commercial arbitration award falls within the definition of an ‘investment’. While the unwillingness of national courts to enforce a commercial arbitration award may be reviewed by investment tribunals as a denial of justice, closer scrutiny of other treatment standards such as indirect expropriation and fair and equitable treatment is necessary.

Keywords investment treaty arbitration  – commercial arbitration  – enforcement of awards  – New York Convention – treatment standards

1

Introduction*

International commercial arbitration and investment treaty arbitration have emerged as popular and effective means for the protection of businesses and investments having cross-border presence. However, their nature and particularly the cause of action based on which these proceedings are brought are * The responsibility of the views expressed is of the author alone.

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_003

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distinct.1 International commercial arbitration is a process for the resolution of disputes between commercial entities present in different countries that have agreed to settle their disputes arising out of a commercial relationship by submitting the disputes to an arbitral tribunal.2 The cause of action arises out of a commercial activity even if a State or an organ of a State is involved in the transaction. By contrast, investment treaty arbitration is a method of dispute resolution where a foreign investor may initiate arbitration proceedings against a State where the foreign investor has made an investment and seeks protection based on an investor protection treaty between the home State (the State to which the foreign investor belongs) and the host State (the State in which the investment is made). An investment treaty arbitration claim involves a challenge to regulatory or other actions undertaken by the State or its agencies while performing sovereign actions.3 Despite differences in their structure and operation, they tend to overlap and interact. In some investment cases, investors have brought investment claims against a host State for failure to enforce a commercial arbitration award. Investment tribunals have taken different approaches to the possibility of exercising jurisdiction under an investment treaty for the failure of the host State to enforce a commercial arbitration award and breaches of the investment treaty that may result from it.4 The literature, on the other hand, has mostly welcomed the trend of investment tribunals holding host States 1 See generally Giuditta Cordero Moss, ‘Commercial Arbitration and Investment Arbitration: Fertile Soil for False Friends?’ in Christina Binder et al., International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford University Press 2009) 784. Other scholars maintain that they are not different or that investment arbitration is a hybrid system. See Zachary Douglas, ‘Hybrid Foundations of Investment Arbitration’ (2003) 74(1) BYIL 152; Rainer Geiger, ‘The Multifaceted Nature of International Investment Law’ in Karl Sauvant (ed), Appeals Mechanisms in International Investment Law (Oxford University Press 2008) 17–18; Bernardo M. Cremades & David J.A. Cairns, ‘The Brave New World of Global Arbitration’ (2002) 2 Journal of World Investment 173, 183, 192; Susan D. Franck, ‘The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future’ (2005) 12 University of California, Davis 47, 70. 2 UNCITRAL Model Law on International Commercial Arbitration (adopted 21 June 1985) art 1 and 2 ; Nigel Blackaby et al, Redfern and Hunter on International Arbitration (5th edn, Oxford University Press 2009) 11–14. 3 Rudolf Dolzer and Cristoph Schreuer, Principles of International Investment Law (2nd edn, Oxford University Press 2012) 76. 4 Romak S A (Switzerland) v The Republic of Uzbekistan, PCA Case No. AA280, Award of 26 Novem­ber 2009; Frontier Petroleum Services Ltd v The Czech Republic (Permanent Court of Arbitration, Final Award of 12 November 2010); GEA Group Aktiengesellschaft v Ukraine, ICSID Case No. ARB/08/16, Award of 31 March 2011; Saipem SpA v The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Award of 30 June 2009; White Industries Australia

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responsible for non-enforcement of commercial arbitration awards and undertaking enforcement of commercial arbitration awards on themselves.5 This practice is fraught with certain fundamental theoretical and practical issues. Two underlying challenges arise from the practice of an investment tribunal undertaking to enforce a commercial arbitration award. The first is broad and overarching: does an investment tribunal has the jurisdiction to entertain other treaty violations, such as the violation of the New York Convention for Recognition and Enforcement of Foreign Arbitral Awards (hereinafter the New York Convention), which is the prominent instrument relating to the enforcement of international commercial arbitration awards? This is particularly apt, since the New York Convention does not contain a provision for compulsory dispute resolution provision for its breaches. The article will discuss this issue in detail since investment tribunals have treated non-enforcement of a commercial arbitration award to be breach of the New York Convention and consequentially the breach of the investment treaty in question. The second involves a set of technical legal questions arising in relation to international investment law: is a commercial arbitration award an ‘investment’ for the purpose of an investment treaty and if it is then, which treatment standards may be violated by non-enforcement of a commercial arbitration award? The first section of this article discusses the broader overarching issue of the interrelationship between investment arbitration and enforcement of the New York Convention. The second section focuses on the jurisdictional issue of whether a commercial arbitration award satisfies the definition of ‘investment’ in an investment treaty. The third section looks at the applicability and appropriateness of pertinent treatment standards such as indirect expropriation, denial of justice and fair and equitable treatment standard for failure of Ltd v The Republic of India, Final Award of 30 November 2011; Desert Line Projects LLC v The Republic of Yemen, ICSID Case No. ARB/05/17, Award of 6 February 2008. 5 Loukas A Mistelis, ‘Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement’ (2013) 28 ICSID Review – FILJ 64; Stephen Fietta and James Upcher, ‘Public International Law, Investment Treaties and Commercial Arbitration: an emerging system of complementarity?’ (2013) 29 Arbitration International 187; Richard Garnett, ‘National Court Intervention in Arbitration As An Investment Treaty Claim’ (2011) 60 ICLQ 485; Gabrielle Kaufmann-Kohler, ‘Commercial Arbitration Before International Courts and Tribunals  – Reviewing Abusive Conduct of Domestic Courts: 2011 American University Washington College of Law Annual Lecture on International Commercial Arbitration’ (2013) 29 Arbitration International 153; William W Park, ‘Convention Violations and Investment Claims’ (2013) 29 Arbitration International 175; Ruth Teitelbaum, ‘Case Report on Saipem v Bangladesh’ (2010) 26 Arbitration International 313; Karl-Heinz Böckstiegel, ‘Commercial and Investment Arbitration: How Different are they Today? The Lalive Lecture 2012’ (2012) 28(4) Journal of the London Court of International Arbitration 580.

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the national courts of the host State to recognize and enforce a commercial arbitration award. This is followed by the conclusions. 2

Investment Treaty Arbitration and Breaches of the New York Convention

The New York Convention is ‘the single most important pillar on which the edifice of international arbitration rests’6 and ‘perhaps could lay claim to be the most effective instance of international legislation in the entire history of commercial law’.7 Yet, it does not impose sanctions on States for non-enforcement of awards.8 Claimants in all the relevant investment arbitration cases urged the tribunal to hold that the New York Convention imposed a standard of obligations on all State Parties and that the standard was breached if the municipal courts failed to enforce the commercial arbitration award. For example, in White Industries, the Claimant argued that under the New York Convention there is a strong presumption that the award will be enforced by a signatory State. By failing to do so, the Respondent State committed denial of justice,9 and a breach of general international law10 and its own domestic law.11 In Frontier Petroleum, the Claimant argued that the Respondent State was under a mandatory obligation to enforce commercial arbitration awards under the New York Convention.12 The Saipem Tribunal termed strict compliance with the New York Convention obligations as a principle of international arbitration.13 According to the tribunal, the ‘[fa]ilure to enforce a commercial arbitration award results into a breach of the obligation under BIT to encourage the creation of favourable

6 7 8 9 10 11 12 13

Blackaby (n 2) [634], citing Wetter, ‘The Present Status of the International Court of Arbitration of the ICC: An Appraisal’ (1990) 1 American Review of International Arbitration 91. Ibid, citing Mustill, ‘Arbitration: History and Background’ (1989) 6 Journal of International Arbitration 43; Schwebel, ‘A Celebration of the United Nations’ New York Convention’ (1996) 12 Arbitration International 823. Christoph Liebscher, ‘Preliminary Remarks’ in Reinmar Wolf (ed), New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Commentary (CH BeckHart-Nomos 2012) 15. White Industries (n 4) (para 4.3.6). Ibid (para 4.3.7). Ibid (para 4.3.8). Frontier Petroleum (n 4) (para 236); also see Romak S A (n 4) (para 134); GEA Group (n 4) (para 227). Saipem SpA (n 4) (para 170).

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conditions for investors of the other Contracting Party’.14 Other tribunals have not gone to this extent. Saipem was the first case where the Tribunal held that the host State was responsible for violation of the New York Convention.15 The Tribunal in Frontier Petroleum did not find the decision of domestic courts to violate the New York Convention, but acknowledged the possibility of reviewing the decision of the domestic court to see if they had violated the New York Convention.16 The Tribunal in GEA Group v Ukraine did not have the occasion to comment on this issue, since it had found that a commercial arbitration award is not an investment.17 Scholars have generally hailed those tribunals that have held the host State responsible for the breach of an investment treaty for non-enforcement of commercial arbitration resulting in a breach of the New York Convention.18 The scheme of the New York Convention aptly demonstrates that the Con­tracting Parties wished the domestic courts to have the final word on the enforcement of commercial arbitration awards. By providing a forum to challenge an alleged violation of the New York Convention, arbitral tribunals are adding a dispute resolution provision to the New York Convention in the absence of state consent.19 The absence of a review or appellate mechanism against the decision of municipal courts strengthens the New York Convention and is treated as granting finality to the decision of a municipal court.20 The New York Convention does not have a dispute resolution procedure of its own. If the States that entered into a treaty did not provide for international adjudication, then how can investment tribunals create one? The New York Convention did not intend to give a cause of action to States against each other for its breach. However imperfect the treaty may appear due to the absence of a dispute resolution clause, this is the choice made by the States parties. 14 15 16 17 18

Frontier Petroleum (n 4) (para 28); White Industries (n 4) [88–91]. Saipem SpA (n 4) (paras. 165–70). Frontier Petroleum (n 4) (para 525). GEA Group (n 4) (para 231, 236–7). Fietta and Upcher (n 5) [194–206, 221]; Deyan Draguiev, State Responsibility For NonEnforcement Of Arbitral Awards (2014) 8(4) World Arbitration and Mediation Review 577; Mavluda Sattorova, Judicial Expropriation or Denial of Justice? A Note on Saipem v. Bangladesh (2010) 13(2) International Arbitration Law Review 35; Stephan Balthasar, White Industries v India: Redefining the Interface Between Commercial and Investment Arbitration? (2012) 78(4) Arbitration 395. 19 The need for such an innovation has been supported through the justification that “the traditionally closed architecture is being opened up, modified”. See Kaufmann-Kohler (n 5) [172]. 20 Government of the Kalingard Region v Republic of Lithuania (Paris Court of Appeals, 18 November 2010) [3].

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The silence of a treaty on dispute resolution implies that there was no intention to allow international adjudication. In the Société Generale de Belgique case, the PCIJ declined to exercise jurisdiction to review a commercial arbitration award because the parties had not expressed specific consent supporting such exercise of jurisdiction. The case was prior to the New York Convention but had to address the issue of whether it could review an award arising out of commercial arbitration proceedings which was declared to be final and binding by the parties. The PCIJ stated that: It should however be added that, since the arbitral awards to which these submissions relate are, according to the arbitration clause under which they were made, “final and without appeal”, and since the Court has received no mandate from the Parties in regard to them, it can neither confirm nor annul them either wholly or in part.21 A provision may be implied in a private contract, but not in a treaty, and particularly in a multilateral treaty. Treaties have a different origin and purpose. They are an outcome of long negotiations, the contents of which are acceptable to all the parties. Oppenheim has warned against inclusion of implied terms in the following words: ‘the parties must have intended to contract on the basis of the inclusion in the treaty of a provision whose effect can be stated with reasonable precision’.22 An international tribunal ought to be wary about interfering with a commercial arbitration award emanating from a different legal regime. The hesitation reflects the unwillingness of an international tribunal to decide issues that are not covered by state consent to bring the dispute before the tribunal in question. The substance of the dispute should arise from the treaty in question.23 21 Société Commerciale de Belgique (Belgium v Greece), Judgment of 15 June 1939, PCIJ Series A/B, No. 78 (1939), 174. 22 Robert Jennings and Arthur Watts KCMG QC (eds), Oppenheim’s International Law (9th edn, Oxford University Press 2008) vol 1, 1271–2. 23 Anglo Iranian Oil Company Case (United Kingdom v Iran), Preliminary Objections, Judgment of 22 July 1952, [1952] ICJ Reports 93, 110; Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objections, Judgment of 12 Decem­­ber 1996, [1996] ICJ Reports 803, 810–11 (para 20); also Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Merits, Judgment of 6 November 2003, [2003] ICJ Reports 161, 178–84 (paras 31–45); Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Reports 14, 117 (para 25); Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Merits, Judgment of 4 June 2008, [2008] ICJ Reports 177, 206 (para 65); Case Concerning

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39

The jurisdiction of a tribunal is limited to the subject matter of disputes covered by the treaty under which the tribunal is created. It does not extend to breaches of other international obligations of the State concerned  – ‘the points at issue must all be determined in the interpretation and application of that treaty’.24 There is no investment treaty that says that non-enforcement of a commercial arbitration award amounts to breach of an investment treaty standard. Despite this limitation on jurisdiction, one of the arbitrators in Saipem defended the position taken by the tribunal (writing in individual capacity), in the following words: an investment tribunal is called to rule on allegations of treaty breaches by a State. If the jurisdictional requirements provided in the relevant BIT (and the ICSID Convention, if applicable) are met, the tribunal is bound to exercise its jurisdiction. There is no reason why it should not entertain a claim simply because the circumstances under which the alleged breach occurred involve the application of another treaty (i.e. the New York Convention).25 As per this claim, as made by this arbitrator, once the requirement of ‘investor’ and ‘investment’ is satisfied, then an investment tribunal can adjudicate any dispute that involves the protection of rights of a foreign investor  – including matters beyond the investment treaty. Such a conclusion would have been warranted if there was anything to suggest that an investment treaty allows jurisdiction to entertain breaches of other treaties such as the New York Convention. Especially since the New York Convention does not contain express provisions on enforcement, the drafting history suggested that there was such a possibility. A logical extension of the suggestion that an investment tribunal, for the sake of protecting investors rights, can look at breaches of treaties outside the investment treaty, then the question is posed whether an investment tribunal can also look into WTO obligations or human rights treaties. Other investment tribunals have been wise not to go to this extreme. In Desert Line, where the case involved breaches of the New York Convention, the

Pulp Mills on the River Uruguay (Argentina v Uruguay), Merits, Judgment of 20 April 2010, [2010] ICJ Reports 14 (para 52). 24 Case of the Diversion of Water from the River of Meuse (Netherlands v Belgium), Judgment of 28 June 1937, PCIJ Series A/B, No. 70 (1937), 16. 25 Kaufmann-Kohler (n 5) [164].

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Tribunal was clear that it was ‘created pursuant to the BIT and is empowered to deal only with claims arising thereunder.’26 In the Biloune v Ghana Investment, the foreign investor alleged that in addition to the violation of investment-related obligations, the host State had violated principles of customary international law, such as denial of justice, and also certain human rights. The Tribunal, presided by a member of the International Court of Justice, Judge Schwebel, said: Long-established customary international law requires that a State accord foreign nationals within its territory a standard of treatment no less than that prescribed by international law. Moreover, contemporary international law recognizes that all individuals, regardless of nationality, are entitled to fundamental human rights (which, in the view of the Tribunal, include property as well as personal rights), which no government may violate. Nevertheless, it does not follow that this Tribunal is competent to pass upon every type of departure from the minimum standard to which foreign nationals are entitled, or that this Tribunal is authorized to deal with allegations of violations of fundamental human rights.27 While refusing to be swayed by emotion, it observed: ‘Thus, other matters – however compelling the claim or wrongful the alleged act – are outside this Tribunal’s jurisdiction.’28 In Methanex v USA, the Tribunal was conscious of the dangers of this temptation and rejected all claims based on breach of GATT and the WTO.29 Foreign investors have relied on the International Convention on Civil and Political Rights30 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.31 If the argument of some commentators32 that failure to enforce a commercial arbitration award can be addressed under 26 Desert Line (n 4) (para 148). 27 Biloune and Marine Drive Complex Ltd. v Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability of 27 October 1989, 1994 (95) ILR 183, 203. 28 Ibid. 29 Methanex Corporation v United States of American, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, Part II-Chapter B, para 5. 30 Toto Construzioni Generali SpA v Republic of Lebanon, ICSID Case No. ARB/07/12, Decision on Jurisdiction of 11 September 2009, para 163, 165. The Tribunal did venture to see if the International Convention on Civil and Political Rights was violated. 31 Frontier Petroleum (n 4) (para 307). 32 Kaufmann-Kohler (n 5) [155–6].

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human rights is accepted, then every purported breach under every other instrument of international law, even remotely connected human rights instru­ ments, will be invoked.33 The New York Convention is not a promise to enforce every commercial arbitration award, as presumed by Sapiem or hinted by Frontier or as stated in some writings referred above. The spirit of the New York Convention is pro-arbitration  – favor arbitrandum; but it recognises that in certain situations commercial arbitration awards would not be enforced. The discretion to decline enforcement is given to the municipal courts. Article V is crucial in this regard. It enumerates an exhaustive list of grounds for refusal of enforcement of an award that act as exceptions to enforcement.34 The discretion allowed to municipal courts is evident from the use of the word ‘may’ in Article V of the New York Convention.35 The scheme of Articles II and V shows that the New York Convention provides a general obligation on States to enforce commercial arbitration awards but at the same time recognizes exceptions to accommodate peculiarities of each State, legal traditions, and priorities of public interest. A comparison of the text of Article V with Article III also strengthens the point about the discretion of the state courts. Article III imposes a mandatory obligation that ‘Each Contracting State shall recognise arbitral awards as binding and enforce them.’ But Article V leaves the discretion to the domestic Courts by couching the provision in a discretionary ‘may’ – by saying ‘Recognition and enforcement of the award may be refused.’36 This view is supported by the drafting history of the New York Convention. It is reflected in comments by representatives of governments that participated in the drafting of the New York Convention.37 33 Park (n 5). 34 Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation (1st edn, Kluwer Law International 1981) 265. 35 Nadia Darwazeh, ‘Article V(1)(e)’ in Herbert Kronke et al. (eds), Recognition and Enforcement of Foreign Arbitral Awards (Wolters Kluwer 2010) 308–309. The Chapter refers to the controversy created between difference in the French and English version of the text of the New York Convention. Both languages are official languages. Some commentators take the view that there is no discretion available at all. See Stephen T Ostrowski and Yuval Shany, ‘Chromalloy: United States Law and International Arbitration at the Crossroads’, (1998) 73 NYULR 1682. But French lawyers have discredited this argument and vindicated that the New York Convention leaves discretion to domestic courts to decide whether or not to interfere with annulment proceedings. See Jan Paulsson, ‘Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA)’ (1998) 1 ICC Bulletin 9. 36 Darwazeh (n 35) [309–310]. 37 Ibid.

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The New York Convention is not aimed at harmonising the grounds of challenge. It only provides the circumstances in which challenge to an award may be entertained. The real effort at harmonizing the grounds of challenge was made by Article 34 of the Model Law – a non-binding advisory instrument.38 According to Redfern and Hunter, the grounds of challenge under Article V New York Convention, which are in turn reflected in Article 34 of the UNCITRAL Model Law, postulate three broad circumstances of intervention by domestic courts. They may exist independently or in combination with other grounds, depending on the seat of arbitration. First, the challenge may be made on jurisdictional grounds, i.e. non-existence of a valid and binding arbitration clause or non-adjudicability of the dispute in question. To reiterate, this will depend on the sensitivities of the place of enforcement and the legal and cultural background. Second, if the award suffers from serious procedural irregularities, the Courts will be forced to interfere. Thirdly, an award may be challenged on substantive grounds: errors of law and fact, which in turn depend and differ from one jurisdiction to another.39 Municipal courts, including the traditionally pro-arbitration jurisdictions, conduct review of the commercial arbitration award, on various grounds. The most frequently invoked ground is that of public policy. The New York Convention itself allows for this.40 The extent of discretion that a municipal court would exercise depends on the legal traditions and substantive laws of the place of enforcement.41 The standard of review applied by the municipal courts differs vastly. Some apply an ‘autonomous’ standard unconnected and uninfluenced by domestic law, whereas others use their domestic law to determine whether to recognise a commercial arbitration award or not.42 For example, courts in the UK, USA, Canada, Netherlands and Hong Kong hold the view that Article V provides a ‘residual discretion’ to municipal courts. This leaves the choice of discretion with domestic courts as long as it is exercised through one of the ways mentioned in Article V.43 Every legal system has developed its own ways 38 Liebscher (n 8) [7–8]. For the application of grounds for setting aside award, see David St John Sutton and Judith Gill, Russell on Arbitration (22nd edn, Sweet & Maxwell 2003) 371–77. 39 Blackaby (n 2) [594–95]. For detailed discussion, see Blackaby (n 2) [596–616]. 40 Sundaresh Menon, ‘Keynote Address’ in Albert Jan van den Berg, International Arbitration The Coming of a New Age?: ICCA Congress Series No. 17 (Wolters Kluwer 2013) 20–22. 41 Patricia Nacimiento, ‘Article V(1)(a)’ in Herbert Kronke et al. (eds), Recognition and Enforcement of Foreign Arbitral Awards (Wolters Kluwer 2010) 207–08. 42 Darwazeh (n 35) [312–319]. 43 Christian Borris and Rudolph Henneck, ‘Article V General Remarks’ in Reinmar Wolf (ed), New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Commentary (CH Beck-Hart-Nomos 2012) 264–265.

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of challenging a commercial arbitration award and the manner of exercise of discretion.44 This discretion is recognised by a majority of the States including arbitration-friendly jurisdictions such as France. There are only a handful of States that do not recognise that municipal courts cannot exercise the necessary discretion.45 The New York Convention creates and recognises a plural system, rather than a unified international standard,46 as claimed by the tribunal in Saipem. The New York Convention is not a self-executing treaty and depends on the domestic legislation for its incorporation into domestic law.47 The municipal courts are interpreting and applying domestic arbitration law rather than the New York Convention. The general rule is that the final word on interpretation of the national law is left to the national judiciary.48 Enforcement of a 44

Mauro Rubino-Sammartano, International Arbitration Law and Practice (2nd edn, Kluwer Law International 2001) 869. 45 Borris and Henneck (n 43) [265–266]. 46 Some commentators argue that commercial arbitration is completely insulated from domestic laws of the enforcing State. Jan Paulsson, ‘Delocalisation of International Commercial Arbitration: When and Why It Matters’ (1983) 32 ICLQ 53, 54–61; Nadia Darwazeh, ‘Article V(1)(e)’, in Herbert Kronke, Patricia Nacimiento, et al. (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, (Kluwer Law International, 2010) p. 342. Others support its application in limited circumstances: Olakunle O. Olatawura, ‘Delocalized Arbitration under the English Arbitration Act 1996: An Evolution or a Revolution, (2003) 30 Syracuse J. Int’l L. & Com. 49, 67; Ashique Rahman, ‘An Insight Into The Application of Arbitral Theory: Arising Judicial Practice’ (2011) 7(2) Asian International Arbitration Journal 97, 101, 104. But majority of national jurisdictions and scholars do not agree with the theory of delocalization. Renata Brazil-David, ‘Harmonization and Delocalization of International Commercial Arbitration’, 2011 (28) Journal of International Arbitration, 445, 460–1, 465; Zaherah Saghir, Chrispas Nyombi, ‘Delocalisation in International Commercial Arbitration: A Theory in Need of Practical Application’, [2016] I.C.C.L.R 269, 274; Roy Goode, ‘The Role of the Lex Loci Arbitri in International Commercial Arbitration’ (2001) 17 Arbitration International 1, 23; Hege Elisabeth Kjos, Applicable Law in Investor-State Arbitration: The Interplay Between National and International Law (Oxford University Press, 2013), pp. 27, 37; Hamid G. Gharavi, ‘Enforcing Set Aside Arbitral Awards: France’s Controversial Steps beyond the New York Convention’, (1996) 6 J. Transnat’l L. & Pol’y 93, 99–100; Francis Mann, ‘Lex Facit Arbitrum’ in Pieter Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (1967) 157, reprinted in 2 Arb. Int’l (1986) 157; Nigel Blackaby, Constantine Partasides, et al (eds), Redfern and Hunter on International Arbitration (6th edn, OUP 2015) 155, 165–66. There are several reasons against a delocalized approach and are not discussed here since they are beyond the scope of the present article. 47 Liebscher (n 8) [7–9]. For the nature of self-executing treaties see generally Leslie Henry, ‘When Is a Treaty Self-Executing’ (1929) 27 Michigan Law Review 776–785; Carlos Manuel Vázquez, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 AJIL 695–723; Curtis Bradley, ‘Intent, Presumptions, and Non-Executing Treaties’ (2008) 102 AJIL 540–551. 48 Jan Paulsson, Denial of Justice in International Law (Cambridge University Press 2005) 73, citing Gerald Fitzmaurice, ‘The Meaning of the Term “Denial of Justice”’ (1932) 13 BYIL 93,

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commercial arbitration award happens under the New York Convention through national arbitration law. States have enforced the New York Convention through domestic legislation. Erroneous application of domestic arbitration law cannot become a denial of justice, either in an express or disguised form. In Saipem as well as White Industries, the tribunal decided the cases even before the domestic courts had taken a final decision in the enforcement proceedings. The only basis on which the domestic courts can be faulted is when their actions amount to a denial of justice, as discussed below. The idea behind leaving the discretion with the domestic courts to review and enforce awards is that the award should enjoy the recognition and dignity of a municipal court. International commercial arbitration is a private process. A review of the decision of a commercial arbitration by municipal court would ensure that fairness is followed in the arbitral process.49 Legal systems adopt different approaches to the measure of autonomy that shall be left for the arbitral process. The Swiss50 and Belgian51 laws recognize the right of parties to waive the right to challenge an award. This, however, is not the position adopted in other jurisdictions, even though they are famously pro-arbitration jurisdictions. By leaving discretion with domestic courts, the New York Convention performs a balancing act. On the one hand, it promotes international arbitration, while on the other, it also preserves various fundamental legal principles of different States.52 In view of the nature of the New York Convention, domestic laws contemplate varying degrees of interference and thereby foster competition between 111. In Yuille, Shortridge & Co., the domestic court had astonishingly concluded that a corporate entitle was liable for the personal debts of one of its shareholders. This was not held to violate the principle of denial of justice since the domestic courts are perfectly within rights to commit errors of law, how much ever grave. See The case of Yuille, Shortridge & Co (Great Britain v Portugal), 21 October 1861 in A de Lapradelle and N Politis, Recueil des arbitrages internationaux (Pedone 1905) vol 1, 78; Also see Lettie Charlotte Denham & Frank Parlin Denham (US v Panama), 27 June 1933, VI RIAA 334; The Croft Case (UK v Portugal), 7 February 1856 in A de Lapradelle and N Politis, Recueil des arbitrages internationaux (Pedone 1905) vol 2, 22. Discussed extensively in Paulsson, 74–76. This does not mean that a state can get away with responsibility for a malicious misapplication of law. This however has to be established and the burden on the party alleging its existence is high. Paulsson, 80–81. 49 Herbert Kronke, ‘The New York Convention Fifty Years on: An Overview and Assessment’ in Herbert Kronke et al. (eds), Recognition and Enforcement of Foreign Arbitral Awards (Wolters Kluwer 2010) 8. 50 Switzerland: Statute of Private International Law (adopted 18 December 1987, entered into force 1 January 1989), 29 ILM 1244 (1990) art 192. 51 Belgian Judicial Code (entered into force 1 September 2013) art 1718. 52 Liebscher (n 8) [4].

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jurisdictions. A commercial arbitration award could be challenged at the seat of the arbitration proceedings or in the municipal court whose law was applied to the arbitration. Thus, when parties choose a seat, they are aware of the approach and standards of review applied by municipal courts for enforcement of awards. Suggesting that the New York Convention imposes a uniform obligation to enforce all awards in the same manner across jurisdictions would interfere with the choice of parties, which emanates from autonomy  – an underlying characteristic of international commercial arbitration. By disregarding this conscious difference in jurisdictional approaches and generating competition between States for a pro-arbitration environment, some investment tribunals have distorted the spirit of the New York Convention. Saipem ignored these realities and declared that there is an international standard for enforcement in the New York Convention. According to the Tribunal, a host State cannot rely on its domestic law for not enforcing the award since it is a settled position of international law, reflected in Article 27 of Vienna Convention of the Law of Treaties read with Article 3 of the ILC Draft Articles on State Responsibility.53 The consequence of this approach is that reliance on domestic law for non-enforcement of an award amounts to a breach of international obligations under the New York Convention and every commercial arbitration award is to be enforced. This conclusion upsets the scheme of the New York Convention. 3

Is a Commercial Arbitration Award an ‘Investment’ Protected under an Investment Treaty?

The availability of protection under an investment treaty depends inter alia on whether the claimant has made a ‘qualified investment’. If the claimant has not made a qualified investment then an investment tribunal cannot exercise jurisdiction, notwithstanding that the actions of the host State may have resulted into a breach of treatment standards in the investment protection treaty. The key jurisdictional question to be addressed is whether a commercial arbitration award satisfies the definition of ‘investment’, whereupon an investment tribunal could exercise jurisdiction. ‘Investment’ is defined differently in different treaties. However, they have some common features based on which it

53 Saipem SpA (n 4) (para 165); for a similar analysis and reasoning, ATA Construction, Industrial and Trading Company v The Hashemite Kingdom of Jordan, ICSID Case No. ARB/08/2, Award of 18 May 2010 (para 122).

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could be determined whether a commercial arbitration award could be treated as investment. The majority of investment treaties have a broad, open-ended, asset-based definition wherein different types of assets are enumerated, with the clarification that the list of the types of assets mentioned in the definition is not exhaustive. The point of debate in the literature and arbitral jurisprudence has been whether an asset would satisfy the requirements of the definition by falling into one of the kinds of assets enumerated in the definition of investment or whether there are additional ‘objective’ requirements – a notion of investment – before an asset is treated as an ‘investment’ for the purpose of the investment treaty. This debate arose in the context of Article 25 of the Convention on Settlement of Investment Disputes (ICSID Convention). Invest­ ment disputes brought under the ICSID Convention have to satisfy what is called the double-barrel test. Assets claimed to be protected have to satisfy the definition of investment under the investment treaty under which an investment claim is brought, and also under Article 25 of the ICSID Convention. This debate was settled in the case of Salini v Jordan. The Tribunal held that, in addition to falling under one of the categories of assets, some objective elements have to be satisfied. These are: contribution by the investor, investment for certain duration, undertaking of risk and contribution to the host State’s development.54 Now, known as the Salini test, this has also been been extended to non-ICSID arbitrations..55 While the practice of application of each of the elements is not always consistent, tribunals have considered whether overall these elements have been satisfied.56 54 Salini Costruttori SpA and ltalstrade SpA v Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction of 23 July 2001 (para. 52). 55 See Aniruddha Rajput, ‘Defining “Investment” – A Developmental perspective’ (2013) 2(1) Indian Journal of Arbitration Law 9. 56 Joy Mining Mach. Ltd. v Egypt, ICSID Case No. ARB/03/11, Decision on Jurisdiction of 23 July 2001 (para 53); Jan de Nul NV v Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction of 16 June 2006 [91]; Saba Fakes v Republic of Turkey, ICSID Case No. ARB/07/20, Award of 14 July 2010 (para 110); Victor Pey Casado and President Allende Foundation v Republic of Chile, ICSID Case No. ARB/98/2, Award of 8 May 2008 (para 232); LESI SpA et Astaldi SpA v People’s Democratic Republic of Algeria, ICSID Case No. ARB/05/3, Decision on Jurisdiction of 12 July 2006 (para 72); Phoenix Action, Ltd. v Czech Republic, ICSID Case No. ARB/06/5, Award of 15 April 2009 (para 100); Deutsche Bank AG v Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/09/02, Award of 31 October 2012 (para 294); Malaysian Historical Salvors, SDN, BHD v The Government of Malaysia, ICSID Case No. ARB/05/10, Dissenting Opinion of Judge Mohamed Shahabuddeen of 16 April 2009 (para 22); Alex Grabowski, ‘The Definition of Investment under the ICSID Convention: A Defense of Salini’ (2014) 15(1) Chicago Journal of

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Prior to this determination, the primary point to be resolved was whether the investment claim is based solely for enforcement of a commercial arbitration award or whether it is a part of a composite investment claim, i.e., where other assets are also involved. In all the investment cases where non-enforcement of a commercial arbitration award was involved, the claimants addressed the claim for non-enforcement of a commercial arbitration award as a part of a composite investment,57 except in Romak v Uzbekistan. Here, the claimant simply sought to enforce a commercial arbitration award.58 The Tribunal disagreed and decided to look at the entire transaction to decide whether the definition of investment was satisfied.59 In other cases, tribunals dismantled the claim and applied the requirements of investment exclusively to a commercial arbitration award. This is an appropriate course of action because, even if claims based on non-enforcement of a commercial arbitration award were a part of a larger basket of claims, the claim of non-enforcement of a commercial arbitration award is a separate claim due to its distinct nature (discussed below). It would have to satisfy the requirements of the definition of investment independently. In Saipem v Bangladesh, the Tribunal rejected the possibility of treating a claim singularly based on enforcement of a commercial arbitration award as investment per se. It said: ‘a commercial arbitration award arises indirectly out of an investment. Indeed, the opposite view would mean that the Award itself constitutes an investment under Article 25(1) of the ICSID Convention, which the Tribunal is not prepared to accept.’60 The Tribunal then stated that, since the claim is not limited to enforcement of the commercial arbitration award but relates to the entire investment transaction, the commercial arbitration award should be treated as an investment.61 A close look at the award of the Tribunal at the merits stage shows that the entire claim of the claimant was limited to non-enforcement of the commercial arbitration award.62 The entire discussion in the award is limited to the behaviour of the courts in Bangladesh in refusing to enforce the commercial

57 58 59 60 61 62

International Law 295; David M. Becker, ‘Debunking the Sanctity of Precedent’ (1998) 76(3) Washington University Law Quarterly 853, 856–57. Frontier Petroleum (n 4) (paras 218–222); GEA Group (n 4) (para 184); Saipem SpA (n 4) (para 102); White Industries (n 4) (para 4.1.6); Desert Line (n 4) (para 50). Romak S A (n 4) (133–138). Ibid (para 211). Saipem SpA v The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures of 21 March 2007 (para 113). Ibid (paras 110, 114, 127, 128). Saipem SpA (n 4) (para 216).

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arbitration award.63 Though the claim was limited only to the enforcement of a commercial arbitration award, the Tribunal vainly tried to defend its position by saying: ‘The fact that the reparation claimed in this arbitration is by and large equivalent to the amounts awarded in the ICC Arbitration, does not in and of itself mean that this tribunal would “enforce” the ICC Award in the event of a treaty breach.’64 This finding opens the possibility of making a claim exclusively for enforcement of a commercial arbitration award provided it is dressed up as a composite claim – even where none other exists.65 It is immaterial whether the commercial arbitration award is a singular claim or a part of a composite transaction or dressed up as the latter. It has been so understood and projected in other cases.66 The commercial arbitration award should be tested on the basis of the twin test of investment, independent of the other kinds of investment that may or may not be involved. The entitlement of a foreign investor in relation to enforcement of a commercial arbitration award is financially quantifiable and distinguishable from the rest of the investment. The claim for enforcement of a commercial arbitration award as an investment should be independently tested on the twin requirements of investment. If the entire claim is for enforcement of commercial arbitration award then the State is acting in a commercial capacity. There has to be some factor reflecting that the State was acting in an official or governmental capacity.67 Tribunals that have applied the twin test of investment to the claim for enforcement of a commercial arbitration award have arrived at different conclusions. In Romak v Uzbekistan, the foreign investor relied on a clause in the definition of investment of the Switzerland-Uzbekistan BIT, which was: ‘claims to money or to any performance having an economic value’ to argue that it was sufficiently broad to include a commercial arbitration award.68 The 63 Ibid (paras 120–191). Discussion in these paragraphs shows that the Tribunal was essentially concerned with enforcement of the commercial arbitration award and noting else. 64 Ibid (para 110). 65 For a similar criticism, see Teitelbaum (n 5). 66 Claimant made this argument in ATA Construction (n 53) (para. 113) and the Tribunal accepted the possibility of a dressed-up claim (para 115). 67 Dolzer and Schreuer (n 3) [127–129], citing Impregilo SpA v Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction of 22 April 2005 (para 281); Bayindir Insaat Turizm Ticaret Ve Sanayi A S v Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction of 14 November 2005 (para 257); Azurix Corp. v The Argentine Republic, ICSID Case No. ARB/01/12, Award of 14 July 2006 (para 315), SGS Société Générale de Surveillance S A v Republic of the Philippines, ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction of 29 January 2004 (para 161). 68 Romak S A (n 4) (para 101).

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Respondent, Uzbekistan, argued that, if the activity of sale of goods enshrined in the underlying contractual transaction is held to fall within the definition of investment, then the notion of ‘investment’ would be infinitely expanded.69 It then relied on the Salini test.70 The investor contended that the Salini test was limited to ICSID cases and the present dispute was under the UNCITRAL Arbitration Rules thus the Salini test did not apply.71 The Tribunal found that to arrive at a proper meaning of ‘investment’, the notion of investment has to be understood. There must therefore be a ‘benchmark’ in relation to which whether the assets constitute an investment has to be tested.72 The reasoning of the Tribunal was that if only the categories of investment are treated as investment then that would be a literal interpretation. Article 31(1) of the Vienna Convention on the Law of Treaties expects that a treaty has to be interpreted also in light of its ‘context’ and ‘object and purpose’.73 A mechanical application of categories to arrive at the meaning of investment would result in a manifestly absurd or unreasonable outcome, contrary to Article 32(b) of the VCLT.74 Also, if not adopted, it would make the distinction between investment and other commercial transactions meaningless.75 The problem with not adhering to this distinction was highlighted by the Tribunal in the following words: 186. Second, the mechanical application of the categories found in Article 1(2) would create, de facto, a new instance of review of State court decisions concerning the enforcement of arbitral awards. Under the scenario advocated by Romak, any award rendered in favor of a national of a Contracting Party (even one rendered in a purely commercial arbitration procedure) would be considered a “claim to money” or, arguably – as pleaded by Romak – a “right given by decision of the authority.” The refusal or failure of the host State’s courts to enforce such an award would therefore arguably provide sufficient grounds for a de novo review – under a different international instrument and on grounds different from those 69 70 71 72

Ibid (para 98). Ibid (paras 104–05). Ibid (para 106–107). Ibid (para 180); Also see Alps Finance and Trade AG v The Slovak Republic, Award (Preliminarily Redacted Version) of 5 March 2011 (para 241); Compagnie International de Maintenance (CIM) v Ethiopia, Award of 1 January 2009. The Award is unpublished but for discussion, see Jarrod Hepburn and Luke Eric Peterson, ‘Ethiopia Prevailed in Face of Foreign Investor’s Attempt to Use Investment Treaty to Sue Over ICC Arbitral Award’ (IA Reporter, 4 March 2012) . 73 Romak S A (n 4) (para 181). 74 Ibid (para 184). 75 Ibid (para 185).

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that would normally apply – of the State courts’ decision not to enforce an award. 187. Finally, the approach that Romak advances would mean that every contract entered into between a Swiss national and a State entity of Uzbekistan (regardless of the nature and object of the contract), as well as every award or judgment in favor of a Swiss national (irrespective of the nature of the underlying transaction), would constitute an investment under the BIT. This in turn would mean that, by entering into the BIT, Switzerland and Uzbekistan have renounced, in respect of every contract entered into with a national of the other Contracting Party, the application of domestic (or the chosen governing) law, and surrendered the jurisdiction of their own domestic courts (or the chosen dispute-resolution forum), even if the contract is a simple one-off sales transaction. The Tribunal also ruled out the possibility of any difference in position due to conducting arbitration before a different institution under different institutional rules.76 The Tribunal then analysed the entire transaction and concluded that there was no investment.77 In GEA Group v Ukraine, the Tribunal was clear and steadfast in holding that a commercial arbitration award is not an ‘investment’ under an investment treaty. According to the Tribunal, an award and investment remain ‘analytically distinct’ because an award neither makes any contribution directly nor is it relevant to the economic activity.78 As per the Tribunal a commercial arbitration award ‘in and or itself – cannot constitute and “investment”’.79 The Tribunal criticised the course adopted in Saipem v Bangladesh and labelled it as ‘difficult to reconcile’.80 In Frontier Petroleum, the claim was brought under Canada-Czech Republic BIT. The Tribunal interpreted the clause ‘[a]ny change in the form of an investment does not affect its character as an investment’ to include commercial arbitration awards because such an award arises out of an investment originally made.81 The Tribunal, however, did not make any effort to state whether the character of investment originally made is retained once it is subjected to 76 77 78 79 80 81

Ibid (paras 194–195). Ibid (para 242). GEA Group (n 4) (para 162). Ibid (para 161). Ibid (para 163). Frontier Petroleum (n 4) (para 231).

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commercial arbitration proceedings. Neither does the Tribunal state how many changes of forms would be assumed to emanate from the original investment. In White Industries v India, the clause the Tribunal had to interpret ‘right to money or to any performance having a financial value, contractual or otherwise’ from the India-Australia BIT, was the same as that in Romak v Uzbekistan. The Tribunal held that the clause was sufficiently broad as to include all commercial transactions82 Thus implying that a commercial arbitration award is also an investment. The contractual transaction based on which commercial arbitration was initiated was undoubtedly covered by the definition of investment. But the Tribunal did not decide whether claims arising out of a breach of contract raised and adjudicated by a commercial arbitration tribunal and then reviewed by a national court would retain the same character of original investment. On the point of the application of the second test, the Tribunal declined to apply the Salini test by arguing that it was limited to ICSID cases only, and that India was not a party to the ICSID Convention and the proceedings were not under the ICSID Convention.83 Despite this reservation, the Tribunal thereafter in a summary manner stated that, in any case, the contractual rights of the foreign investor contain the elements of the Salini test and thus ‘rights under the Award constitute part of White’s original investment’.84 The facts discussed by the Tribunal to substantiate the conclusion that the Salini test is satisfied related to the general features of the investment. The Tribunal did not address how a commercial arbitration award satisfied these requirements. The Tribunal rejected the conclusion in GEA Group v Ukraine that there is a distinction between a commercial arbitration award and investments, in the following words: The Tribunal considers that the conclusion expressed by the GEA Tribunal represents an incorrect departure from the developing jurisprudence on the treatment of arbitral awards to the effect that awards made by tribunals arising out of disputes concerning “investments” made by “investors” under BIT s represent a continuation or transformation of the original investment.85

82 83 84 85

White Industries (n 4) (para 7.3.8). Ibid (paras 7.4.8, 7.4.9). Ibid (para 7.6.10). Ibid (para 7.6.8).

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The observation that GEA Group v Ukraine has departed from developing jurisprudence. No award has expressly declared that a commercial arbitration award is an investment by itself. The Tribunal did not address this point in Frontier Petroleum, and, in GEA Group v Ukraine and Romak v Uzbekistan, the conclusion was otherwise. The Tribunal in White Industries v India made no effort to dispel the approach in these awards and particularly the conclusion in GEA v Ukraine that a commercial arbitration award is analytically different from an investment. Some argue that property rights defined in investment treaties are sufficiently broad to include tangible and intangible rights. Therefore, contractual rights that fall in the category of intangible rights are also protected.86 In ATA v Jordan, the Tribunal declared the right to arbitration as an asset.87 It observed that the right to arbitration is a distinct ‘investment’ within the meaning of the BIT because Article I(2)(a)(ii) defines an investment inter alia as ‘claims to […] any other rights to legitimate performance having financial value related to an investment’. The right to arbitration could hardly be considered as something other than a ‘right […] to legitimate performance having financial value related to an investment’.88 It further held that: ‘The retroactive effect of the Jordanian Arbitration Law, which extinguished a valid right to arbitration deprived an investor such as the Claimant of a valuable asset in violation of the Treaty’s investment protections.’89 The Tribunal never applied any treatment standard such as fair and equitable treatment, expropriation, MFN, etc. Thus, the basis for finding the host State responsible for taking away the ‘right to arbitration’ is unclear. By this argument, every right to access courts or judicial proceedings would be an investment. No other tribunal went this far to claim that right to arbitration is a proprietary right. The crucial missing link that is overlooked here is that in proceedings based on the non-enforcement of a commercial arbitration award, the right sought to be enforced is not just a contractual right. It is the so-called right to have a commercial arbitration award enforced, which in most situations would have been rejected by the courts in the host State. The right does not remain a purely contractual right and transforms itself into a right arising out of judicial proceedings. It is understandable that the right continues to remain a property right while the rights under contract are adjudicated by a commercial arbitral 86 87 88 89

Fietta and Upcher (n 5) [189–92]. Desert Line (n 4) (para 125). ATA Construction (n 53) (para 117). Ibid (para 126).

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tribunal, because commercial arbitration is also contractual in nature. But once there is an award and that award is subjected to judicial proceedings in domestic courts, the character of the right changes. It cannot remain a purely commercial right. It has an element of public interest. If the Courts decided to reject enforcement, they would be doing it on the ground of ‘public policy’, which is a manifestation of public interest. Therefore, a right under a contract is different from the right to have a commercial arbitration award enforced in domestic courts. In the earlier case it is proprietary, in the latter case it is a legal right involving weighing and assessing of public interest. Another way of looking at the change of character is, what would happen if the municipal courts uphold the commercial arbitration award? During the enforcement proceedings, public institutions are performing public functions rather than merely deciding a commercial dispute. They provide a promise of enforcement in case of success. The machinery of the State could be used for enforcement. It would be inequitable to say that the outcomes of judicial proceedings are private property rights if a commercial arbitration award is not enforced and they would be public rights when a commercial arbitration award is upheld. A fundamental principle of equity is ‘he who seeks equity must do equity’.90 There is a tendency to rely on decisions of the European Court of Human Rights where the Court enforced a commercial arbitration award.91 The Euro­ pean Convention on Human Rights specifically grants right to property,92 unlike investment treaties. Therefore, the judgments of the European Court of Human Rights could not be relied upon to imply that failure of States to enforce commercial arbitration awards would result into breach of the New 90 Case of the Diversion of Water from the River of Meuse (Netherlands v Belgium), Judgment of 28 June 1937, PCIJ Series A/B, No. 70 (1937), 4, 50 (Dissenting Opinion of M. Anzilotti); Case of the Diversion of Water from the River of Meuse (Netherlands v Belgium), Judgment of 28 June 1937, PCIJ Series A/B, No. 70 (1937), 4, 77 (Individual Opinion by Mr. Hudson); John McGhee, Snell’s Equity (32nd edn, Sweet & Maxwell 2010) 105. 91 Fietta and Upcher (n 5) [206–13]; Claudia Annacker, ‘Investment Treaty Arbitration as a Tool to ‘Enforce’ Arbitral Awards?’ (2015) The European, Middle Eastern and African Arbitration Review ; Kryvoi, Y., ‘Can an Arbitration Award Be Expropriated? Introductory Note to European Court of Human Rights: Kin-Stib and Majkic v. Serbia (July 24, 2010)’ (2010) 49 International Legal Materials 1181. 92 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952, entered into force 18 May 1954) ETS No. 009 art 1. “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

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York Convention. In fact, these cases refer to violations of the right to possession under Article 1 of Protocol No. 1, not the New York Convention.93 The right claimed to arise out of a commercial arbitration award arises through the process of adjudication. The rights emanating from other investments  – although legally protected  – are purely proprietary in nature. The nature and manner of emanation of rights in a commercial arbitration award is distinct from proprietary rights. This makes the two analytically different. State practice treats commercial arbitration award distinct from investment. NAFTA excludes claims to money arising out of purely commercial transactions. It states: but investment does not mean (i) claims to money that arise solely from (i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of another Party, or (ii) the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by subparagraph (d); or (j) any other claims to money94 Footnote 3 attached to the definition of investment in the US Model BIT states: ‘The term “investment” does not include an order or judgment entered in a judicial or administrative action.’95 The recently unveiled Indian Model BIT also excludes claims to money based on judicial proceedings.96 It would be safe to conclude that State practice is disapproving of that jurisprudence of

93 Case of Regent Company v Ukraine, Application No. 773/03, Judgment of 3 April 2008 (paras 59–62); Case of Stran Greek Refineries and Stratis Andreadis v Greece, Application No. 13427/87, Judgment of 9 December 1994 (paras 61–62). 94 North American Free Trade Agreement (adopted 17 December 1992, entered into force 1 January 1994) 32 ILM 289, 605 (1993) art 1139. 95 United States Trade Representative, ‘US Model Bilateral Investment Treaty’ (2012) ; For similar language, see footnote 15-4, United States Trade Representative, United States – Singapore Free Trade Agreement (2003) . 96 ‘Model Text for the Indian Bilateral Investment Treaty’ (2015) arts 1.4(vii), 13.5(i) .

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tribunals where outcome of judicial decisions are treated as investment.97 If States continue to incorporate similar clauses in the investment treaties, the drive to enforce commercial arbitration awards through investment tribunals may be short lived. There is an emerging trend amongst States to adopt a closed definition of ‘investment’ in place of the earlier practice of wide, open-ended and asset based definition; referred also as ‘closed-list’ approach.98 These definitions limit the ambit of the treaty to only those investments specifically mentioned in the treaty. In such a contingency, unless the definition of investment includes claims under a judicial or arbitration decision – which is highly unlikely – then claims for amounts due under commercial arbitration awards would not be maintainable. To facilitate enforcement of commercial arbitration awards, a commentator observes that commercial arbitral awards are a functional equivalent of foreign court judgments.99 As attractive as the argument may appear, it is equally counter-productive. The regime for enforcement of judgments of foreign courts and commercial arbitration awards is distinct in structure and rigor. Enforcement of foreign judgments is regulated by private international law.100 Unlike commercial arbitration where there is a robust network of State parties to the New York Convention, municipal courts have greater freedom in rejecting recognition and enforcement judgments of foreign courts. Recognition and enforcement of a commercial arbitration award could be 97

New Zealand Foreign Affairs & Trade, ‘Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area’ (2012) ; United States Trade Representative, ‘The United States-Chile Free Trade Agreement’ (2004) art 10.27 ; United States Trade Representative, ‘Treaty between the Government of the United States of America and the Government of the Republic of Rwanda concerning the Encouragement and Reciprocal Protection of Investment’ (2008) . 98 UNCTAD, Scope and Definition: UNCTAD Series on Issues in International Investment Agreements II (United Nations 2011) 10, 34–36. 99 Loukas Mistelis, ‘Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement’ (2013) 28 ICSID Review 64, 70. “In conclusion, what we should be adding to the definitions of the arbitral awards …. is de facto and de jure a judgment with transnational effect. This is also supported by the New York Convention and the ICSID Convention, which clearly impose a public international obligation on their respective Contracting States to recognize and treat an award as if it were a decision of a local court.” 100 James Fawcett, Janeen Carruthers and Peter North, Cheshire, North & Fawcett: Private International Law (14th edn, Oxford University Press 2008) 7.

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declined by municipal courts only in limited situations, enumerated under the New York Convention.101 The New York Convention has achieved this elevated status for international commercial arbitration awards, which may not be forsaken for the temporal convenience of fitting an award within the framework of investment. There could be situations where a commercial arbitration award is a part of a composite transaction of investment and so fundamentally connected with the entire investment that it cannot be segregated from the rest of the investment. This certainly cannot be a situation where the claim is based solely on seeking enforcement of a commercial arbitration award. A factual inquiry would have to be made to this effect: whether the foreign investor dressed up an enforcement claim as a composite investment or the investment is an investment as such. The entire composite transaction of investment would have to satisfy the key twin requirements: falling within the categories of investment and satisfying the Salini test. In such a situation, a commercial arbitration award could be treated as an investment. In Desert Line, the investment was a composite transaction.102 The award was only one of the stages of the investment rather than the investment that the foreign investor was claiming protection for: Thus, although the economic essence of the claims in both the local and these international arbitral proceedings is to seek compensation for construction works performed under the Contracts, and compensation for damages incurred during and after the execution of the Contracts, the Yemeni Arbitration and the present arbitral proceedings were brought pursuant to fundamentally different causes of action. The claims before ICSID are not said to arise under the terms of the Contracts. The Claimant alleges that it has been deprived from of procedural rights by the Respondent’s interference with the proper conduct of the Yemeni Arbitration, the subsequent aborted correction and enforcement phases, 101 Blackaby (n 2) [638]. 102 Desert Line (n 4) (para 164), “the infrastructural investment at the heart of this case was of a macroeconomic dimension. The project to expand Yemen’s road network was destined to be of vast importance in terms of facilitating economic activity, tourism and national cohesion – not to mention security. 1,000 kilometers of asphalt road was to be constructed in remote mountainous areas, featuring rocky soil and high precipices. There were apparently no surveys. The Claimant was not in a position to rely on any tender specifications as a basis for its commitment to pricing; there was no tender. The Claimant was reduced to proceeding on the ground, and deal with technical problems as they arose. Estimating simple bills of quantities in such circumstances is obviously difficult. Therefore, the Claimant was taking an operational risk, and relied upon the absence of a “legal” risk with respect to prompt progress payments.”

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and the allegedly coercive negotiation and signature of the Settlement Agreement; this amounted to the deprivation of its fundamental rights under the BIT. There can be therefore no res judicata effect. The Claimant initiated the Yemeni Arbitration for the enforcement of its private rights under the Contracts. At no time was the violation of substantive standards of the BIT claimed in the Yemeni Arbitration. This matter was never alleged and therefore never dealt with by the Yemeni Arbitral Tribunal. The Yemeni Arbitration was commenced pursuant to the Yemeni Arbitration Agreement, and the claims there asserted were fundamentally distinct from the claims related to the violation of the BIT by the Respondent.103 4

Non-enforcement of Commercial Arbitration Awards and Breach of Treatment Standards in an Investment Treaty

The jurisdiction of an investment tribunal would not extend to breaches of the New York Convention, but it is certainly within the jurisdiction of the tribunal to investigate breaches of treatment standards – provided the requirement of investment is satisfied. Assuming a tribunal concludes that a commercial arbitration award is an investment, then the next stage is whether any of the treatment standards is breached by non-enforcement of a commercial arbitration award by domestic courts. Non-enforcement of a Commercial Arbitration Award and Indirect Expropriation Expropriation has been one of the oldest forms of affecting a foreigner’s property. The emergence of investment treaties was predominantly to counter expropriatory measures, which were undertaken mostly as a part of large-scale nationalisation.104 In recent times, since all States have recognised the importance of foreign investments and the need for their protection, incidences of expropriation are rare. Still, expropriation has continued to remain an important standard because investment treaties forbid direct as well as indirect expropriation. Indirect expropriation has been an important tool for rejecting regulatory measures that cause financial losses to foreign investors. The tribunals that had the chance to rule upon the issue of non-enforcement of a

4.1

103 Ibid (paras 136–7). 104 Kenneth Vandevelde, ‘The Political Economy of a Bilateral Investment Treaty’ [1998] 92 American Journal of International Law 621, 628.

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commercial arbitration award by municipal courts have used and commented upon the role of indirect expropriation. A point of tension is the applicability of expropriation or indirect expropriation to actions of judiciary. The concept of expropriation has a well-settled meaning in international law. It represents ‘taking’ of foreign property by the host State by transfer of ownership to itself or any third party.105 Expropriation would be direct if the property is taken through direct transfer of ownership. It is indirect when the State achieves the same objective of taking through indirect means, without actually taking away the title of the property. The determination of indirect expropriation appears complex, but the elements for determination of indirect expropriation were settled fairly clearly by the Permanent Court of International Justice (PCIJ) in the Oscar Chinn case. The PCIJ held that it is not just the effect of the measure on the investor that matters, but the nature and purpose of the measure is equally important.106 In that case, a foreign investor had entirely lost his business due to regulatory measure adopted by Congo. The PCIJ – after considering the nature of the measure – found that the regulation was a legitimate exercise of sovereign regulatory power for which the Congo would not be responsible.107 Majority of the investment tribunals did not choose to follow this jurisprudence. They preferred to rely on the jurisprudence of the Iran-US Claims Tribunal, without ignoring that it is lex specialis.108 These tribunals have relied upon the sole-effects doctrine developed by the Iran-US Claims Tribunal, where the nature of the measure is irrelevant – only the effect of the measure is to be seen.109 Therefore, 105 Konstantin Katzarov, The Theory of Nationalisation (Martinus Nijhoff 1964) 1–2; B.A. Wortley, Expropriation in International Law (Cambridge University Press 1959) 36; G Sacerdoti, ‘Bilateral Treaties and Multilateral Instruments on Investment Protection’ (1997) 269 Recueil des Cours 261, 379; Also see Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 537. 106 The Oscar Chinn Case (Belgium v United Kingdom), Judgment of 12 December 1934, PCIJ Series A/B, No. 63 (1934), 65, 88. 107 Ibid [86–87]. 108 For further arguments on the lex specialis nature of the Iran-US Claims Tribunal, see Aniruddha Rajput, ‘Problems with the Jurisprudence of the Iran-US Claims Tribunal on Indirect Expropriation’ (2015) 30(3) ICSID Review 589. 109 Dolzer and Schreuer (n 3) [112–5]; Compañiá de Aguas del Aconquija S A and Vivendi Universal S A v The Argentine Republic, ICSID Case No. ARB/97/3, Award of 20 August 2007 (para 7.5.16); Telenor Mobile Communications A S v The Republic of Hungary, ICSID Case No. ARB/04/15, Award of 13 September 2006 (paras 65–6, 69–70); BG Group Plc v The Republic of Argentina, Final Award of 24 December 2007 (para 261, 268); Nykomb Synergetics Technology Holding AB, Stockholm v The Republic of Latvia (The Arbitration Institute of Stockholm Chamber of Commerce, Award of 16 December 2003) (para 4.3.1); Metaclad Corporation v The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award

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for tribunals relying on the sole-effects doctrine, indirect expropriation would be applicable to judicial actions. The nature of the measure and presence of its expropriatory intent is irrelevant for them – the fact of loss of property is adequate. An important element of the sole-effects doctrine is that it must result in complete or substantial loss in value of the investment110 – referred to as neutralisation. The value of the property must be fully effaced and mere financial losses are insufficient.111 An investor cannot claim that a commercial arbitration award wipes off its asset value entirely. In that case, the investor would be asserting a claim based exclusively on a commercial arbitration award, which tribunals do not appear to agree is an investment. It would be equally insufficient for an investor to claim that, from the entire set of assets possessed, the investor has lost only part of those assets. Even if a part of the asset has lost its value by non-enforcement, it will often not result in the loss of the entire investment. The problem with the application of the sole-effects doctrine to judicial decisions is that in every case one party inevitably loses. Therefore, every judicial decision can be alleged to be an indirect expropriation for the losing party. The leading case applying indirect expropriation to judicial actions is Saipem. The Claimant raised an argument that the contractual or vested rights arising out of the commercial arbitration award were expropriated by an illegal action of judiciary in declining to enforce the commercial arbitration award.112 The Tribunal found in favour of the argument. In its view, by depriving the foreign of 30 August 2000 (para 103); Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction of 29 April 2004 (para 120); Patrick Mitchell v The Democratic Republic of Congo, ICSID Case No ARB/99/7, Award of 1 November 2006 (para 53); Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22, Award of 24 July 2008 (para 463). 110 Dozer and Schreuer (n 3) [101–119]; This principle is called the sole-effects doctrine. This principle is not uniformly applied and tribunals have preferred to look at the nature of the measure. In which case, argument of expropriation will not be available at all. This article however proceeds on the demur that even assuming sole-effects doctrine is correct, non-enforcement of a commercial arbitration award does not amount to expropriation – either direct or indirect. See Saluka Investments B V v The Czech Republic (Permanent Court of Arbitration, Partial Award of 17 March 2006) (paras 262, 277); Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No. ARB(AF)/99/1, Award of 16 December 2002 (paras 108–111); S D Myres, Inc v Government of Canada, Partial Award of 13 November 2000 (paras 279–288); Methanex Corporation (n 29) (Part IV-Chapter D, para 6). 111 El Paso Energy International Company v The Argentina Republic, ICSID Case No. ARB/ 03/15, Award of 31 October 2011 (paras 245–56). 112 Saipem SpA (n 4) (para 127).

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investor of the residual contractual rights ‘crystallised’ in the award, the action of domestic courts of Bangladesh had resulted in indirect expropriation.113 The commercial arbitration award cannot be enforced in any other jurisdiction because the Bangladeshi courts declared it unenforceable; the deprivation was substantial and qualified as the taking of an asset.114 The Tribunal firstly sought to evade the question by putting the blame on Bangladesh in failing to put forward convincing arguments on judicial expropriation.115 The so-called concept of a commercial arbitration award as a final crystallisation of contractual rights is a fallacy. A commercial arbitration award may be final and binding, but it is not conclusive until it is recognised or the period for challenge has expired. A commercial arbitration award is immediately enforceable, subject to any contrary agreement between the parties and the right of challenge – a statutory right.116 But it is not automatically enforceable and the court where enforcement or challenge is sought can stay the enforcement proceedings.117 Most of the time, to guarantee expediency and finality, rules of arbitral institutions contain a finality clause, declaring the award final and binding between the parties and including a waiver of the right to challenge.118 Even if the institutional rules or the arbitration agreement contain such a waiver, national courts normally treat these clauses as a nullity.119 The presupposition that a commercial arbitration award reflects crystallised rights, not subject to challenge and confirmation by domestic courts, does not exist in practice. The White Industries Tribunal did not have occasion to comment on expropriation because the challenge to enforcement was pending before the Indian courts.120 In GEA Group, the Tribunal dismissed the argument because the 113 114 115 116

117 118

119 120

Ibid (para 128). Ibid (para 130). Ibid (para 128). Sutton and Gill (n 38) [361–62]. The authors also cite Section 58(2) of the English Arbitration Act, 1996, which expressly awards the right to parties: “Effect of Award: This does not affect the right of a person to challenge the award by any available arbitral process or appeal or review or in accordance with the provisions of this Part.” Ibid [364–65, 381]. ICC Rules of Arbitration (entered into force 1 January 2012) art 34.6 ; LCIA Arbitration Rules (entered into force 1 January 1998) art 26.9 ; UNCITRAL Arbitration Rules (as revised in 2010) art 34.2 . Rubino-Sammartano (n 44) [875]. White Industries (n 4) (para 12.3.6).

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claimant had not satisfied the burden of proof,121 and in Frontier Petroleum, it was never raised. The Saipem Tribunal seems to be conscious of this problem and tries to get over it, by adding a caveat: ‘for judicial action to result into expropriation it must be “illegal”’.122 This makes the conclusions of the Tribunal further obscure. ‘Illegal’ by itself is no independent standard. A regulatory action may be characterised as illegal, but how can a judicial action be termed illegal? The Tribunal in Saipem held that the municipal courts were responsible for an abuse of rights. The Tribunal did not state that it was because the New York Convention was not complied in good faith. While concluding that the actions of courts in Bangladesh have resulted in abuse of rights, the Tribunal in Saipem assumes that there is a free-standing treatment standard of good faith.123 Abuse of rights is not a freestanding principle containing substantive principles of its own. Lauterpacht, although a supporter of this principle is mindful of the problems this principle is capable of creating and insists on circumspection: There are but modest beginnings of a doctrine which is full of potentialities and which places a considerable power, not devoid of a legislative character, in the hands of a judicial tribunal. There is no legal right, however well established, which could not, in some circumstances, be refused recognition on the ground that it has been abused. The doctrine of abuse of rights is therefore an instrument which …. must be wielded with studied restraint.124 The principle of good faith is the closest candidate to and interlocked with abuse of rights.125 Good faith covers the narrower doctrine of abuse of rights according to which parties shall abstain from resorting to acts calculated to frustrate the object and purpose of a treaty, and thereby impede the proper compliance thereof.126 The investment tribunals do not seem to acknowledge 121 122 123 124

GEA Group (n 4) (para 226). Ibid (para 134). Saipem SpA (n 4) (para 159–60). Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge University Press 1982) 164. 125 See Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Stevens 1953) 121. 126 Mark E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers 2009) 367, citing the International Law Commission, ‘Draft Articles on the Law of Treaties’ (1966) 2 YBILC 187, 211 (para 4); International Law Commission, ‘Summary Records of 727th meeting  – 20 May 1964’ (1964) 1 YBILC 28 (para 17); also

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the binary of abuse of rights and good faith. The good faith principle does not possess a free-standing existence in international law. It does not contain an independent normative quality127 and has to be coupled with an obligation to be binding under international law. Brownlie doubts the existence of any such principle as an accepted principle of international law.128 Brownlie’s scepticism, rightfully so, arises from the possibility of interpretative legislation by an international tribunal and possibility of creation of obligations on States, while there are none. The possibility of such an obligation is rejected in the following words: In conclusion it may be said that the doctrine is a useful agent in the progressive development of the law, but that, as a general principle, it does not exist in positive law. Indeed it is doubtful if it could be safely recognized as an ambulatory doctrine, since it would encourage doctrines as to the relativity of rights and result, outside the judicial forum, in instability.129 Furthermore, according to the PCIJ in the Free Zones Case, abuse of rights cannot be presumed: ‘misuse cannot be presumed, and it rests with the party who states that there has been such misuse to prove his statement’.130 The party alleging misuse has to establish it131 and the investor never discharged this burden. The best that a good faith principle achieves is observance of the International Law Commission, ‘Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur’ (1964) 2 YBILC 7 (para 4) art 55; Anthony D’Amato, ‘Good Faith’ in Rudolf Bernhardt (ed), Encyclopaedia of Public International Law (1995), vol 2, 600; Byers states abuse of right is “supplemental to the principle of good faith”, Michael Byers, ‘Abuse of Rights: An Old Principle, A New Age’ (2002) 47 McGill Law Journal 389, 411 referred in Andrew D Mitchell, ‘Good Faith in WTO Dispute Settlement’ (2006) 7 Melbourne Journal of International Law 339, 349–350. 127 See the Case Concerning Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction of the Court and Admissibility of the Application, Judgment of 20 Decem­ ber 1988, [1988] ICJ Reports 105 (para 94); United Nations Conference on the Law of Treaties, Statements by the delegations of Ecuador, OR 1969 CoW 170 (para 23). 128 Brownlie (n 105) [443–445]; Cheng has argued that it is covered under general principles of law, Cheng (n 124) [131–32]. 129 Brownlie (n 105) [445]. 130 Ibid [444], citing Case of the Free Zones of Upper Savoy and the District of Gex (Second Phase) (France v Switzerland), Order of 6 December 1930, PCIJ Series A, No. 24 (1930), 12; See also Case of the Free Zones of Upper Savoy and the District of Gex (France v Switzerland), Judgment of 7 June 1932, PCIJ Series A/B, No. 46 (1932), 167. 131 Certain German Interests in Polish Upper Silesia (Germany v Poland), Judgment of 25 May 1926, PCIJ Series A, No. 7 (1926), 30.

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obligations under the treaty in spirit and in accordance with their letter;132 ‘The obligation to observe treaties is one of good faith and not stricti juris’.133 The Saipem Tribunal seeks to create an absolute standard for violations of New York Convention, emanating through ‘principles of international arbitration’ by holding that non-enforcement of a commercial arbitration award amounts to abuse of rights and an illegal expropriation. The proper standard to judge judicial actions is denial of justice, rather than good faith, discussed in detail below. The trend amongst investment tribunals is not only to rely on the effect, but also to look at the nature of the measure.134 Once the nature of the measure is considered, it cannot be argued that a judicial authority has rendered a decision with expropriatory intent. The judicial authority is performing the judicial function of adjudication. The ‘nature of measure’ test involves deciding whether the measure under challenge is bona fide, non-discriminatory, and in the public interest. These tests were developed so as to apply to actions of the legislature and executive, not the judiciary. It is not just a terminological anomaly but a substantive anomaly. The Harvard Draft correctly pointed out that there can be no responsibility of the host State for destruction of the property of foreigners as a result of a judicial decision.135 Thus, there is a clear problem in applying these tests. Can a judicial decision be upheld if it says that public interest is involved? Thus, cases between private parties would never involve an element of public interest. How can it be decided if a judicial decision is bona fide or non-discriminatory. If it acts unfairly and does not treat parties equally, that is a breach of denial of justice and not indirect expropriation.

132 ILC Draft Articles (n 126) [211]; Harvard Draft Convention on the Law of Treaties (1935) 29(4) AJIL Supplement 981; also see Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge University Press 1989) 135 ff. 133 See Third Report by Waldock (n 126) (para 1). 134 Técnicas Medioambientales Tecmed, S A v The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award of 29 May 2003 (para 162); Azurix Corp (n 67) (para 311); LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v Argentine Republic, ICSID Case No ARB/02/1, Decision on Liability of 3 October 2006 (para 195); Fireman’s Fund Insurance Company v The United Mexican States, ICSID Case No. ARB (AF)/02/01, Award (redacted version) of 17 July 2006 (para 176); Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v The United Mexican States, ICSID Case No ARB(AF)/04/05, Award of 21 November 2007 (para 250). 135 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, in Louis B Sohn and R R Baxter, Responsibility of States for Injuries to the Economic Interests of Aliens, 55 AJIL 548 (1961) art 9.2.

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4.2 Denial of Justice and Fair and Equitable Treatment Standard Denial of justice is subsumed by the fair and equitable treatment standard and can be treated together. Denial of justice is a customary international law principle, whereas fair and equitable treatment is a treaty rule. Denial of justice would thus be available even where an investment treaty does not provide for either denial of justice or fair and equitable treatment – unless an investment treaty expressly excludes the operation of denial of justice. Traditionally, in international law, grievances against judicial actions of the host State have been associated with the denial of justice standard. Therefore, amongst various treatment standards invocable against the actions of the judiciary of the host State, the strongest candidate is denial of justice. Paulsson aptly defines the international delict of denial of justice in the following words: ‘a state incurs responsibility if it administers justice to aliens in a fundamentally unfair manner’.136 International law expects States to maintain a judicial system that ensures the fair treatment of foreigners, and if they are unfairly treated, then there shall be a mechanism to redress it.137 By raising the grievance of non-enforcement of a commercial arbitration award, the foreign investor is primarily agitating a cause of action arising from the action of the judiciary of the host State. Certain limitations are inherent in the scope and application of denial of justice. Every injustice suffered by a foreigner in municipal courts does not meet the level of denial of justice.138 Breaches of treaty obligations do not by themselves constitute a denial of justice. Equating the breach of a treaty with that of denial of justice is a very broad and untenable proposition.139 Thus, violation of New York Convention is not necessarily tantamount to denial of justice. Denial of justice always arises out of procedural deficiencies of an egregious nature in the judicial process. There must be some disfunction in relation to administration of justice.140 The decision-making process ‘unreasonably departs from the principles of justice recognised by the principal legal systems of the world’.141 The manner of delivery of justice has to be ‘[m]anifest injustice in the sense of a lack of due process leading to an outcome which offends

136 Paulsson (n 48) [4]. 137 Ibid [7–8]. 138 Ibid [10]. 139 Ibid [46]. 140 Ibid [53, 98]; Martins Paparinskis, The International Minimum Standard and Fair and Equitable (Oxford University Press 2013) 190–1. 141 Draft Convention (n 135) [art 8(b)].

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a sense of judicial propriety’.142 In Lowen v USA, the Tribunal expressed their view about the judicial proceedings in question: ‘The trial and its resultant verdict were clearly improper and discreditable and cannot be squared with minimum standards of international law and fair and equitable treatment.’143 The trial in that case represented a gross violation of due process and prejudice towards the foreign investor on account of their nationality, establishing a clear case of miscarriage of justice.144If the judicial proceedings in which the enforcement of a commercial arbitration is declined are reduced to this level then there would indeed be denial of justice. The determination of a denial of justice would be and is independent of the subject matter – it is immaterial whether the case related to obligations under the New York Convention or any other treaty or customary obligation. The claimant in Saipem did not raise the ground of denial of justice because it was not included in the BIT, but the arguments show they were in effect the arguments normally raised to establish a denial of justice.145 The Tribunal however dubbed it as a general emerging principle.146 Other tribunals holding host States responsible for non-enforcement of the commercial arbitration award have skirted this question. Tribunals that did not interfere with the decision of non-enforcement of domestic courts did not find denial of justice on facts.147 Substantive review for misapplication of national law by domestic courts does not constitute breach of denial of justice. There can be no direct substantive review unless the decision is clearly arbitrary, amounted to manifest error or denial of justice, or otherwise violated the obligation of independence and impartiality.148 National courts enjoy the final word on the interpretation and application of national law. Extreme cases justify interference only if the 142 Loewen Group, Inc. and Raymond L. Loewen v United States of America, ICSID Case No. ARB(AF)/98/3, Award of 26 June 2003 (para 467). 143 Ibid (para 137). 144 Ibid (para 52). 145 Saipem SpA (n 4) (para 149). ‘Saipem argues that international law requires state courts to abide by “generally accepted standards of the administration of justice” and that “grossly unfair […] arbitrary, unjust or idiosyncratic” court rulings constitute a violation of international law Saipem has referred to a convincing line of cases and doctrinal opinions that confirm the emergence of such a general principle.’ (footnotes omitted). 146 Ibid. 147 Mondev International Ltd v United States of America, ICSID Case No. ARB(AF)/99/2, Award of 11 October 2002 (para 136); Robert Azinian, Kenneth Davitian and Ellen Baca v United Mexican States, ICSID Case No. ARB(AF)/97/2, Award of 1 Nov. 1999, (1999) 39 ILM 537, 552. 148 UNHRC, ‘General Comment 32 – Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial’ (2007) UN Doc CCPR/C/GC/32 (para 16, 26); José Ingancio de Jorge Asensi v Spain, Decision of 25 March 2008, (2008) UN Doc CCPR/C/92/D/1413/2005

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extent of misapplication is such that it would amount to a breach of due process principles and is governed under the customary international law standard of denial of justice.149 But even in these circumstances an international tribunal cannot perform a substantive review.150 To quote Paulsson: ‘If anything is clear about the international law of denial of justice, it is that it does not concern itself with bare errors of substance.’151 A passage to this effect from Serbia Loans case, decided by the PCIJ, is instructive: The Court, having in these circumstances to decide as to the meaning and scope of a municipal law, makes the following observations: For the Court itself to undertake its own construction of municipal law, leaving on one side existing judicial decisions, with the ensuing danger of contradicting the construction which has been placed on such law by the highest national tribunal and which, in its results, seems to the Court reasonable, would not be in conformity with the task for which the Court has been established and would not be compatible with the principles governing the selection of its members. It would be a most delicate matter to do so, especially in cases concerning public policy – a conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself – and in cases where no relevant provisions directly relate to the question at issue.152 The Saipem and White Industries tribunals conducted a substantive review of the decisions of the municipal courts not to enforce the commercial arbitration award. The Tribunal in Saipem considered the entire record and concluded that the award was valid and that the decision of the municipal (Bangladesh) court ‘can only be viewed as a grossly unfair ruling.’153 The Tribunal however did not give elaborate reasons as to why it thought the award was proper and the decision of the Bangladesh Court was not. When Bangladesh  – the [para 8.2–8.3]; I.S. v Belarus, Decision on Admissibility of 25 March 2011, (2011) UN Doc CCPR/C/101/D/1994/2010 [para 4.3]. 149 Paulsson (n 48) [82]. 150 Ibid [84]. 151 Ibid 64. 152 Case Concerning the Payment of Various Serbia Loans Issued in France (France v Serbia), Judgment of 12 July 1929, PCIJ Series A, Nos. 20/21 (1929), 46. 153 Saipem SpA (n 4) (para 155). “Having carefully reviewed the procedural orders referred to in the Revocation Decision as the cause of the ICC Tribunal’s misconduct, the Tribunal did not find the slightest trace of error or wrongdoing. Under these circumstances, the finding of the Court that the arbitrators “committed misconduct” lacks any justification.”

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Respondent State – argued that the commercial arbitration award was invalid and thus should be set aside, the Tribunal observed that it need not comment on the reasoning and conclusions of the award since that was unnecessary.154 A similar exercise was performed in White Industries, where the Tribunal took it upon itself to decide whether the commercial arbitration award was valid and enforceable.155 It even went to the extent of deciding whether Indian public policy had been violated156 and concluded: ‘Having determined that none of the four grounds advanced by Coal India for resisting enforcement of the Award support such an outcome, the Tribunal concludes that the Award is enforceable under the laws of India.’157 (emphasis added) In Frontier Petroleum, even though the Tribunal ultimately declined to enforce the commercial arbitration award, it did subscribe to the possibility of a substantive review of a decision of a domestic court.158 In GEA Group, the Tribunal acknowledged the extensive discretion left to domestic courts to operate within the framework of the New York Convention and to arrive at an determination as to the enforceability of the commercial arbitration award.159

154 Ibid (para 108). ‘For these reasons, the fact that some of the findings of the ICC Award “would have been another ground for revoking the authority of the arbitrators’ … as well as the facts developed in paragraphs 15 to 34 of the Rejoinder … are not directly relevant to determine whether the intervention of the courts was lawful.” 155 White Industries (n 4) (para 14.2.2). The Tribunal claimed to have done so with the consent of parties. Apart from being a grave error on the part of India for having consented to such an exercise, the Tribunal could not have committed an illegality even the parties would have consented. As a general principle of international law, an international tribunal cannot proceed unless the requirements of jurisdiction have vigorously complied. See generally Anglo Iranian Oil Company Case (n 23). There is a further problem, peculiar to investment arbitration when a tribunal seeks to claim jurisdiction beyond the treaty on the basis of consent of parties. The parties to the dispute are not parties to the treaty. The foreign investor gets merely to sue under a treaty but cannot agree to rewrite the jurisdictional clause of a BIT. If any efforts are to be made to expand the scope of jurisdictional clauses be interpretations, it is an exclusive vestige of State parties. Parties to BIT s frequently do this through exchange of clarifications. But this is certainly not an exercise free for an arbitrator to adopt. See Chester Brown and Kate Miles, Evolution in Investment Treaty Law and Arbitration (Cambridge University Press 2011) 45; Joy Mining (n 54) (para 50); Salini SpA (n 53) (paras 62–65); Grabowski (n 54) [289]; Berk Demîrkol, ‘The Notion of ‘Investment’ in International Investment Law’ (2015) 1(1) The Turkish Commercial Law Review 41, 44. 156 White Industries (n 4) (para 14.2.65). 157 Ibid (para 14.2.66). 158 Frontier Petroleum (n 4) (para 525). 159 GEA Group (n 4) (para 236).

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A substantive review would interfere with the proper discharge of functions by municipal courts under the New York Convention.160 The possibility of reviewing the decisions of municipal courts is defended as necessary.161 With a sense of self-aggrandisement it is suggested that ‘it lies within human nature that courts, when making decisions on international commercial arbitration matters, may make mistakes’.162 The statement reflects the confidence that an investment tribunal of three arbitrators can never make a mistake on the application of international commercial arbitration whereas municipal courts are prone to such mistakes. Implicit in the statement is the admission that there should be a correction of the substance of the law rather than the manner of its application. To reiterate – misapplication of law is not a mistake, while unfair application which does not meet the standard of due process is. It is argued that: This traditional architecture [of finality of municipal courts decisions in cases under the New York Convention] is a closed one in the sense that there is no recourse against a final decision by the courts at the seat of the arbitration on the annulment of an award. Similarly, there is no recourse against the final decision of the courts at the place of enforcement. The New York Convention, which has no dispute resolution clause, is silent when it comes to determining what king of remedy (if any) an aggrieved party may have in case of violation of the treaty by a contracting State’s court. Does this new development, where domestic decisions concerning commercial arbitration are brought before international courts or tribunals open up this closed system? In other words, does this development where domestic decisions concerning commercial arbitration are brought before international courts or tribunals open up this closed system? In other words, does this development point to a shift from the conception which traditionally assigns the last word to national courts (at the annulment or enforcement stage) towards a new role for international courts or tribunals called to exercise a sort of ‘super-supervisory’ role over domestic courts’ conduct relating to commercial arbitration.163

160 W Michael Reisman and Heide Iravani, ‘The Changing Relation of National Courts and International Commercial Arbitration’ (2011) 21 American Review of International Arbitration 5. 161 Kaufmann-Kohler (n 5) [166]. 162 Ibid [173]. 163 Ibid [154].

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In none of the cases, the host State was found responsible for a denial of justice. In Saipem, the Tribunal relied on abuse of process,164 whereas in White Industries, the Tribunal relied on the Most Favoured Nation (MFN) clause contained in the investment treaty to import a less demanding standard of from another investment treaty of ‘effective means’.165 The Saipem Tribunal cannot be faulted for not rendering any finding on denial of justice because the claimant was hesitant to raise it.166 In White Industries, the claimant raised a serious concern that its judicial proceedings in municipal courts remained undecided for nine years. The Tribunal did not find this delay to amount to a denial of justice, because responsibility of a State for delays in judiciary is ‘highly fact sensitive’ and will include factors such as the complexity of the proceedings, the need of swiftness, and the behaviour of litigating parties.167 The delay was not surprising and neither did the delay raise concerns of judicial propriety.168 Considering the peculiar position in India, it could not be held that the delay resulted in the denial of justice.169 The Tribunal was mindful of the difficulties in arriving at a conclusion that the Indian courts were liable for denial of justice. It found a convenient way of incorporating the ‘effective means’ standard in the India-Kuwait BIT through the MFN clause.170 Based on this standard it was held that by failing to enforce the award in nine years, the effective means standard was violated.171 However, while doing so, the Tribunal never explained how precisely the effective means standard differs from denial of justice. Thus, if the actions of Indian judiciary did not amount to violation of a similar obligation to ‘encourage and promote favourable conditions’172 how did the actions then violate ‘effective means’? The Tribunal did not refer to any substantive contents of the effective means standard. It is doubtful whether it is an independent standard on its own. Its tenor and texture is similar to the clause, stipulating an obligation to encourage and promote favourable conditions for foreign investment. Commentators agree that this encouragement and promotion of favourable conditions does not create 164 Saipem SpA (n 4) (para 110). 165 White Industries (n 4) (para 11.2–11.3). 166 Saipem SpA (n 4) (para 121). The Claimant submitted that ‘the BIT does not confer to your Tribunal jurisdiction over a claim based on denial of justice, and restricts your jurisdiction to a claim for expropriation. This is why we did not bring a claim on the ground of denial of justice before you.’ 167 White Industries (n 4) (para 10.4.10). 168 Ibid (para 10.4.11–10.4.12). 169 Ibid (para 10.4.22–10.4.24). 170 Ibid (paras 11.2.7–11.2.9). 171 Ibid (para 11.4.19–11.4.20). 172 Ibid (para 9.2.13).

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any substantive obligations under the BIT.173 The entire determination of the Tribunal is anchored on a sandy bed of the MFN clause. The application of the MFN clause to import favourable conditions from different treaties and create a dream treaty has attracted divisions and severe criticism.174 In Saipem, the question of delay was not raised in the context of denial of justice, but while dealing with the requirement of exhaustion of local remedies. In ATA v Jordan, Jordan was found responsible for a retroactive application of arbitration law by the domestic courts. This was found to violate the need to recognise arbitration agreements under Article II of the New York Convention.175 The fair and equitable treatment standard requires the host State to behave in a consistent manner.176 It is difficult to see how municipal courts can promise that in every case exactly the same decision would be arrived at. Legitimate expectations is a part of fair and equitable treatment. But a mere prospect of not getting positive results is not a breach of legitimate expectations.177 The expectation for certain conduct arises from the legal framework existing in the host State.178 This legal framework consists of ‘legislation and treaties, assurances 173 Ibid (paras 9.2.7–9.2.11). 174 The idea here is not to venture into the unsettled and heavily debated territory of the scope of the most favoured nations clause and the extent to which favourable conditions from different treaties can be incorporated. But the determination becomes shaky if it is entirely founded on a clause, subject to severe criticisms. For wide division of views amongst scholars and tribunals, see Daimler Financial Services AG v Argentine Republic, ICSID Case No. ARB/05/1, Award of 22 August 2012 (para 160), citing Julie A Maupin, ‘MFN-based Jurisdiction in Investor-State Arbitration: Is there Any Hope for a Consistent Approach?’ (2011) 14 Journal of International Economic Law 157–190. One commentator has aptly described the award as “shades of grey”, see Manu Sanan, ‘The White Industries Award – Shades of Grey’ (2012) 13 Journal of World Investment and Trade 661–685. 175 ATA Construction (n 53) (para 128). 176 Tecmed (n 134) (para 154); Saluka Investments (n 109) (para 309). 177 MCI Power Group LC and New Turbine, Inc v Republic of Ecuador, ICSID Case No. ARB/03/6, Decision on Annulment of 19 October 2009 (para 349). 178 Azinian v Mexico, ICSID Case No. ARB (AF)/97/2, Award of 1 November 1999 (paras 95–7); Mondev International Ltd v United States of America, ICSID Case No. ARB(AF)/99/2, Award of 12 October 2002 (para 156); Marvin Roy Feldman (n 110) (para 128); LG&E Energy Corp (n 133) (para 130–1); Enron Corporation and Ponderosa Assets v Argentina, ICSID Case No. ARB/01/3, Award of 22 May 2007 (para 260–2); BG Group (n 108) (paras 292–310); Duke Energy v Ecuador, ICSID Case No. ARB/04/19, Award of 18 August 2008 (paras 340, 359–65); Jan de Nul and Dredging International NV v Arab Republic of Egypt, ICSID Case No. ARB/04/13, Award of 6 November 2008 (para 265); Bayindir v Pakistan, ICSID Case No. ARB/03/29, Award of 27 August 2009 (paras 190–7); EDF (Services) Ltd v Romania, ICSID Case No. ARB/05/13, Award of 8 October 2009 (paras 217, 219); AES Summit Generation Ltd v The Republic of Hungary, ICSID Case No. ARB/07/22, Award of

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contained in decrees, licenses and similar executive statements, as well as contractual undertaking.’179 Their utility in analysing judicial actions is limited. Compliance with contractual obligations is also considered to be part of the fair and equitable treatment standard.180 In the case of non-enforcement of a 23 September 2010 (paras 9.3.8–9.3.18; 9.3.27–9.3.35); Frontier Petroleum (n 4) (paras 287, 468); National Grid Plc v Argentina, Award of 3 November 2008 (para 173, 178–9); Oscar Chinn Case (n 106) (para 184); SD Myers Inc v Government of Canada, Second Partial Award of 21 October 2002; Occidental Petroleum Corporation v The Republic of Ecuador, ICSID Case No. ARB/06/11, Award of 1 July 2004 (para 184–6, 191); CMS Gas Transmission Co v Argentina, ICSID Case No. ARB/01/8, Award of 12 May 2005 (paras 274–6); Eureko BV v Republic of Poland, Partial Award of 19 August 2005 (paras 231–2, 234); CME Czech Republic BV v Czech Republic, Partial Award of 13 September 2001 (para 611); Bayindir0 (n 67) (paras 231–2); PSEG Global, Inc v Republic of Turkey, ICSID Case No. ARB/02/5, Award of 19 January 2007 (paras 240–56); Sempra Energy International v Argentina, ICSID Case No. ARB/02/16, Award of 28 September 2007 (paras 298–300, 303); Alpha Projektholding GmbH v Ukraine, ICSID Case No. ARB/07/16, Award of 8 November 2010 (para 420); Joseph Charles Lemire v Ukraine, ICSID Case No. ARB/06/18, Decision on Jurisdiction and Liability of 14 January 2010 (para 267); Joseph Charles Lemire v Ukraine, ICSID Case No. ARB/06/18, Award of 28 March 2011 (paras 68–73); Suez v Argentina, ICSID Case No. ARB/03/19, Decision on Liability of 30 July 2010 (para 209); Parkerings-Compagniet AS v Republic of Lithuania, ICSID Case No. ARB/05/8, Award of 11 September 2007 (paras 327–38); Plama Consortium Ltd v Republic of Bulgaria, ICSID Case No. ARB/03/24, Award of 27 August 2008 (para 219); Continental Casualty Co v Argentina, ICSID Case No. ARB/03/9, Award of 5 September 2008 (paras 258–61); Sergei Paushok v The Government of Mongolia, Award on Jurisdiction and Liability of 28 April 2011 (para 302); Impregilo SpA v Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Award of 21 June 2011 (paras 290–1); El Paso (n 110) (paras 344–52, 365–79, 392–5); Total SA v Argentina, ICSID Case No. ARB/04/01, Decision on Liability of 27 December 2010 (paras 113–24, 164, 309, 312, 429); Saluka Investments (n 110) (para 306); Vivendi (n 109) (para 7.4.24); Ioannis Kardassopoulos v The Republic of Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction of 6 July 2007 (para 191); OKO Pankki v The Republic of Estonia, ICSID Case No. ARB/04/6, Award of 19 November 2007 (paras 247–8, 263). 179 Dolzer and Schreuer (n 3) [145]. 180 SGS Société (n 66) (para 162); Noble Ventures v Romania, ICSID Case No. ARB/01/11, Award of 12 October 2005 (paras 82, 182); SGS Société Générale de Surveillance SA v The Republic of Paraguay, ICSID Case No. ARB/07/29, Decision on Jurisdiction of 12 February 2010 (paras 144–51); Mondev International (n 177) (para 134). However, many tribunals have held that a breach of FET requires conduct in the exercise of sovereign powers. See Parkerings-Compagniet (n 177) (paras 344–5); EDF (Services) Ltd (n 177) (paras 238–60); Burlington Resources Inc v Republic of Ecuador, ICSID Case No. ARB/08/5, Award of 2 June 2010 (para 204); Gustav F W Hamester GmbH & Co KG v. Republic of Ghana, ICSID Case No. ARB/07/24, Award of 18 June 2010 (paras 332–8); Bayindir (n 177) (para 180, 377); Rumeli Telecom AS v Republic of Kazakhstan, ICSID Case No. ARB/05/16, Award of 29 July 2008 (para 615); Alpha Projektholding (n 177) (para 422); Consortium RFCC v Morocco, ICSID Case No. ARB/00/6, Award of 22 December 2003 (paras 33–4); Biwater Gauff (n 107) (para 636); Waste Management Inc v United Mexican States, ICSID Case

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commercial arbitration award, as was discussed above, the character of a commercial arbitration award is different from contractual rights based on which arbitration proceedings are initiated. Thus, non-enforcement of a commercial arbitration award cannot be treated as disrespecting contractual obligations. In commercial arbitration proceedings the relevant contractual obligations are between the parties and the arbitrators – not the judicial authority that is to recognise and enforce the award. The Desert Line case involved physical and financial duress.181 The Respon­ dent State and its agents had repeatedly resorted to force, coercion, and intimidation on the investor, which had been forced to settle even after having won an arbitration proceeding.182 These actions would be a breach of fair and equitable treatment and the authorities of the host State and the judiciary, if involved, would be responsible. In either case, the subject matter of the dispute is irrelevant – it does not matter whether the dispute related to enforcement of a commercial arbitration award under the New York Convention or otherwise. The Tribunal in Desert Line was not deciding upon the decision of a domestic court, affirming or rejecting the award, but a subsequent forced settlement on duress. Its upholding of the award cannot be compared to the enforcement proceedings before municipal courts.183 If the municipal courts were party to duress then that would be a denial of justice, for which the host State would be responsible. Some proceedings challenging the award were filed in the Yemeni Court but what happened is not known and nothing was put on record.184 5

Conclusions

The trend of jurisprudence discussed above stands at a cross-roads of commercial and investment treaty arbitration. But most importantly it raises the legal question of the jurisdictional competence of an international tribunal constituted under one treaty to investigate alleged breaches of other treaties. Precisely, whether an investment tribunal is justified in deciding the breach of the New York Convention, when the drafting States of the New York

181 182 183 184

No. ARB(AF)/98/2, Final Award of 30 April 2004 (paras 108–17); GAMI Investments Inc v United Mexican States, Award of 15 November 2004 (para 101); Impregilo (n 66) (paras 266–70); Impregilo (n 176) (paras 293–310); Duke Energy (n 176) (paras 342–5, 354). Desert Line (n 4) (para 151–94). Ibid (paras 3–45). Ibid (para 205). Ibid (para 202).

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Convention never contemplated the possibility of challenges made for a breach of that Convention. From the perspective of international law, a tribunal constituted under one treaty generally cannot look into breaches of other treaties absent any express delegation of such powers in the constitutive international agreement. Thus, an investment tribunal constituted under a specific BIT possesses no jurisdiction to entertain alleged breaches of other treaties, whether or not those treaties contain an independent dispute resolution procedure. It is natural to be sympathetic, but emotions cannot be used to trump legal provisions. Presently, it is a breach of the New York Convention that is brought under the umbrella for enforcement. It would be open to argue that the host State breached some trade law obligations under the WTO, the investor has suffered losses, and the host State owes liability to foreign investor. How far could investment tribunals go? The only ground really available for an investment tribunal is the denial of justice standard. On the ground of denial of justice, only the procedural appropriateness of decision of the municipal court can be considered. A tribunal cannot conduct a full-fledged review, as was done in Saipem and White Industries. In light of denial of justice, international law is clear that a State would incur responsibility for the actions of its judiciary. It is only if the standard of proceedings in municipal courts does not match the requirements of fairness that a host State would be responsible. It is immaterial whether the proceedings in municipal courts relate to enforcement of the New York Convention. Policy arguments for converting investment arbitration proceedings into a forum for enforcement of commercial arbitration awards could be made: such a practice would, for example, increase compliance with New York Conven­ tion obligations and greater enforceability of commercial arbitration awards, which would therefore result into greater stability in cross-border commercial relations. As attractive as the argument sounds, there are difficult issues that the regime of investment arbitration has to tackle. Questions of legitimacy are often raised due to the expansive interpretative approach adopted by investment tribunals that does not necessary comply with the settled standards of treaty interpretation in international law. Too much emphasis on telos is becoming a leeway for ignoring the scope of state consent for dispute resolution and in particular the scope of subject matter of dispute resolution. The quest for achieving slightly higher success in compliance with one treaty such as the New York Convention may result into greater systemic problems for the overall regime of investment arbitration  – which appears to be in trouble in the present scenario. The prospects of damage in undoing the existing

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structure and operation of the New York Convention would not just damage investment arbitration but even commercial arbitration and particularly party autonomy.185

Acknowledgements

I thank Hari Shankar for his comments and research assistance of Gayathree Devi, Aasavri Rai, Bhavesh Seth, Yash Karunakaran, Sudipta Purkayastha for assistance in the preparation of this article. 185 The awards supporting enforcement of commercial arbitration awards by the New York Convention ‘contribute to the possibility, and now likelihood, of duplicative arbitration, protracted proceedings, uncertainty, a diminished view of national jurisdictions under the New York Convention, and greater costs and inefficiencies in international arbitration. The time-honoured precepts of party-autonomy, predictability, uniformity, transparency of standard, and efficiency, were not best served by either award’ Pedro J Martinez-Fraga, ‘Adam, How about a Second Bite at the Apple? Revisiting the Need for Uniformity in the Application of Res Judicata to International Commercial and Treaty-Based Arbitration’ in Arthur Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2011 (Martinus Nijhoff Publishers 2012) 181.

3

Margin of Appreciation: A Model for Immigration Reform in the United States during COVID-19 Bethany Gamble Abstract

This article examines the European Court of Human Rights’ margin of appreciation doctrine as contrasted with the plenary power doctrine over immigration laws in the United States. The European Court of Human Rights applies the margin of appreciation balancing test when reviewing violations of the European Convention of Human Rights. This balancing test applies equally to immigration matters. Conversely, in the United States, the plenary power doctrine gives the political branches near unfettered power over immigration laws without traditional standards of judicial review. This article specifically examines United States’ use of Title 42 since the beginning of the COVID-19 pandemic as justification to expel migrants who have recently been in a country where a communicable disease is present. Under this policy, the United States has expelled millions of migrants, including those seeking asylum, in violation of human rights obligations. This article argues that U.S. courts should abandon the plenary power doctrine and apply the margin of appreciation balancing test to immigration legislation to advance human rights protections in the United States.

Keywords human rights – immigration – plenary power – margin of appreciation – COVID-19

1

Introduction

The margin of appreciation doctrine is a fundamental balancing test applied by the European Court of Human Rights (ECtHR) when evaluating potential human rights violations under the European Convention on Human Rights (ECHR).1 The ECtHR’s margin of appreciation is a judicially created doctrine 1 See Dean Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2012) 14 Cambridge Yearbook of European Studies 381. © Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_004

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that balances individual human rights with legitimate national interests of member states.2 The ECtHR’s discretionary latitude afforded to member states on matters of national interest fluctuate based on the human right violation in dispute.3 This analysis holds true even in matters involving immigration.4 In the United States, the Supreme Court has established three standards of review, varying in deference, when evaluating equal protection violations under the U.S. Constitution.5 Analogous to the ECtHR, the level of discretion U.S. courts apply to claims of equal protection violations vary based upon the rights infringed upon.6 However, under the judicially created plenary power doctrine, the executive and legislative branches have been granted near exclusive power to regulate immigration laws.7 The plenary power doctrine is a near categorical exception to judicial review of immigration legislation, even if similar laws would violate the constitutional protections afforded to U.S. citizens.8 Section 2 of this article discusses the differing theoretical approaches the ECtHR and U.S. Courts apply when evaluating discrimination and human rights claims. Section 3 examines the ECtHR’s margin of appreciation doctrine as applied to immigration matters, and the United States’ approach to immigration laws under the plenary power doctrine. Section 4 provides a comparative analysis, applying ECHR provisions to Title 42, a law currently in effect in the United States which allows for the collective expulsion of migrants due to COVID-19. Based on this review, this paper concludes by advocating that U.S. courts adopt a human rights-based approach to judicial review of immigration legislation, such as the margin of appreciation method advanced by the ECtHR. 2

Theoretical Considerations: The Margin of Appreciation and  the Plenary Power Doctrines

2.1 ECtHR’s Approach: The Margin of Appreciation Doctrine The margin of appreciation doctrine ensures that member states uphold a minimum level of human rights, while recognising the need for some variation 2 See ibid. 382. 3 See Eleni Frantziou, ‘Policy Briefing – The Margin of Appreciation Doctrine in European Human Rights Law’ (2014) UCL. 4 See ibid. 5 See infra notes 21–28. 6 See infra notes 21–28. 7 See infra 29–30. 8 See infra 29–30.

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based on the particularities of each state.9 The doctrine guides the ECtHR in determining its appropriate scope of review by balancing the ECHR’s provisions and Protocols with legitimate state interests and public interest considerations.10 Importantly, the ECtHR generally does not afford any margin of appreciation to member states when assessing violations of ‘absolute rights’, including: the right to be free from torture and inhumane or degrading treatment or punishment (Article 3); the freedom from slavery and forced labour (Article 4); and the right to no punishment without law (Article 7).11 In contrast, the ECtHR applies the margin of appreciation analysis to ‘qualified rights’ of the Convention, such as: the right to private and family life (Article 8); freedom of thought, conscience, and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); and the right to marry (Article 12).12 In cases where a qualified right is at issue, the principle of proportionality strongly influences the margin of appreciation analysis.13 Under this principle, the ECtHR evaluates the proportionality between the interference of a right with the grounds for the interference, its impact on the right, and the context of the interference.14 To meet the proportionality test, ‘[t]he grounds must be “relevant and sufficient”, the need for a restriction must be “established convincingly”, any exceptions must be “construed strictly” and the interference must meet “a pressing social need”.’15 Notably, ECHR’s derogation clause (Article 15) allows member states ‘in exceptional circumstances, the possibility of derogating, in a limited and 9

10

11 12 13 14 15

See Dean Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2012) 14 Cambridge Yearbook of European Studies 381, 395; see also Eleni Frantziou, ‘Policy Briefing  – The Margin of Appreciation Doctrine in European Human Rights Law’ (2014) UCL. See Eleni Frantziou, ‘Policy Briefing  – The Margin of Appreciation Doctrine in European Human Rights Law’ (2014) UCL.; see also Slivenko v. Latvia App no 48321/99 (ECtHR, 9 October 2003) para. 113. The Slivenko court explained, ‘[t]he Court’s task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other.’ Ibid. See Eleni Frantziou, ‘Policy Briefing  – The Margin of Appreciation Doctrine in European Human Rights Law’ (2014) UCL. See ibid. See Dean Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2012) 14 Cambridge Yearbook of European Studies 381, 409–410. See ibid. 409. See ibid. 410.

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supervised manner, from their obligations to secure certain rights and freedoms under the Convention.’16 The special circumstances that allow for derogation include ‘time[s] of war or other public emergenc[ies] threatening the life of the nation.’17 However, Article 15 stipulates that derogation is prohibited under the ECHR’s absolute rights, including Article 3, Article 4 (paragraph 1), and Article 7.18 When a member state invokes Article 15, the ECtHR will still evaluate whether the state’s action is appropriate under the Convention and may do so by assessing its proportionality.19 United States’ Approach: Traditional Standards for Judicial Review and the Plenary Power Doctrine The Supreme Court has adopted three standards of review in evaluating equal protection cases: rational basis review, intermediate scrutiny, and strict scrutiny.20 The rational basis test is generally applied when no fundamental right is infringed upon and there is no question of discrimination against a discrete and insular minority on the basis of race, religion, national origin or alienage.21 When the Court applies rational basis review, the law simply must have a rational relationship to a legitimate government purpose.22 This standard affords a strong presumption of constitutionality, as it is measured against any conceivable government purpose, even if the justification is hypothesised after the fact.23 The Court applies intermediate scrutiny in cases involving certain protected groups, including gender and illegitimacy.24 Under intermediate scrutiny, the law must serve an important governmental objective and be substantially

2.2

16 Guide on Article 15 of the Convention on Human Rights (ECtHR, 31 August 2022) , accessed 5 October 2022, para 1. 17 Article 15 EHCR. 18 See ibid. 19 Anna Radjenovic and Gianna Eckert, ‘Upholding Human Rights in Europe During the Pandemic’ (2020) European Parliamentary Research Service 4. 20 See infra notes 21–28 (explaining three standards of review applied to equal protection claims). 21 See FCC v Beach Commc’ns Inc 508 US 307, 313 (1993) (defining rational basis review). 22 See Dandridge v Williams 397 US 471, 487 (1970) (stating law need not be wise to meet rational basis standard). 23 FCC v Beach Commc’ns Inc 508 US 307, 313 (1993) (finding law subject to rational basis review must be upheld where any conceivable justification found); see also F. Andrew Hessick, ‘Rethinking the Presumption of Constitutionality’ (2010) 85 Notre Dame Law Review 1447, 1453 (explaining actual motivation for enacting law need not be considered under rational basis review). 24 See Clark v Jeter 486 US 456, 461 (1988) (noting intermediate scrutiny applicable to gender and illegitimacy).

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related to the achievement of that objective.25 Strict scrutiny is applied to government action that infringes upon a fundamental right or where the action discriminates on the basis of a person’s status as a minority or an immutable trait.26 When strict scrutiny applies, the government must demonstrate that the action is narrowly tailored, necessary to achieve a compelling government interest, and must be the least restrictive means available to achieve that interest.27 Strict scrutiny is applied to equal protection discrimination claims based on race, religion, alienage, and national origin.28 Traditional standards of review of equal protection claims are not applied to immigration laws in the United States, and Congress and the executive branch enjoy near exclusive power to regulate immigration laws.29 This unfettered authority is known as the plenary power doctrine.30 U.S. courts have long given significant deference to the political branches in matters involving immigration law based on this doctrine.31 Thus, when U.S. courts evaluate the constitutionality of an immigration law, they apply the highly deferential, ‘rationale basis review.’32 3

Application of the Margin of Appreciation and Plenary Power Doctrine to Immigration Matters

The ECtHR’s Margin of Appreciation Doctrine as Applied to Immigration Matters In the context of immigration matters, the ECtHR applies the same standards of review for immigrants’ claims regarding absolute rights, qualified rights, and

3.1

25 See Miss Univ for Women v Hogan 458 US 718, 724 (1982) (outlining rule for intermediate standard of review). 26 Roy G. Spece, Jr. & David Yokum, ‘Scrutinizing Strict Scrutiny’ (2015) 40 Vermont Law Review 285, 300 (explaining when strict scrutiny applies). 27 See ibid. 295 (describing common interpretations to meet strict scrutiny burden). 28 See Bolling v Sharpe 347 US 497, 499 (1954) (applying strict scrutiny to law requiring school segregation based on race). 29 See Sandy De Sousa, ‘An Analysis of Sessions v. Morales-Santana’s Implications on the Plenary Power Doctrine and the Supreme Court’s Approach to Equal Protection Challenges’ (2019) Seton Hall Law Review 1123, 1125 (2019) (explaining plenary powers over immigration policy). 30 See Adam B. Cox & Cristina M. Rodríguez, ‘The President and Immigration Law’ (2009) 119 Yale Law Review 458, 460. 31 See ibid. 32 See ibid.

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proportionality that it would apply in other, non-immigration law, contexts.33 Under the ECHR, member state sovereignty is respected, and states exercise their right to control their territorial boundaries.34 The Convention does not expressly regulate immigration law, however, the ECtHR imposes certain limitations on state sovereignty that affect migrants where state actions infringe on their rights under the Convention.35 Where an absolute right may be violated, the ECtHR has maintained its commitment to protect human rights, even in the face of compelling state interests.36 For example, in Saadi v. Italy, the Court examined whether the deportation of a Tunisian national who legally resided in Italy, and who was ordered deported by Italian officials due to his suspected involvement with terrorist activities, violated Article 3.37 The court reaffirmed that Article 3’s prohibition against torture, inhumane, or degrading treatment is an absolute right, and therefore is not subject to any balancing exercise.38 Therefore, in an Article 3 analysis, the danger that an immigrant may pose to the community and the interest in state security is irrelevant because the Court will not allow any margin of appreciation with regard to these rights.39 Since the ECtHR found there was a ‘real risk’ that the plaintiff would be subjected to torture, or inhuman or degrading treatment if he returned to Tunisia, the Court held Italy would violate its positive obligations under Article 3 if the plaintiff were deported.40 Immigrants are similarly protected under the Convention’s qualified rights, just as non-immigrants would be protected.41 For example, in Maslov v. Austria 33 See generally Guide on the Case Law of the European Convention on Human Rights: Immigration (ECtHR, 31 August 2022) , accessed 5 October 2022. 34 See FRA (2020) Handbook on European Law Relating to Asylum, Borders, and Immigration, Luxemburg: Publications Office for the European Union, , accessed 3 October 2022. 35 See ibid. 31–32. 36 See e.g. Guide on the Case Law of the European Convention on Human Rights: Immigration (ECtHR, 31 August 2022) , accessed 5 October 2022. 37 See Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008) paras. 9–30. 38 See ibid. 33. 39 See ibid. 40 See ibid. 45. 41 See generally Guide on the Case Law of the European Convention on Human Rights: Immigration (ECtHR, 31 August 2022) , accessed 5 October 2022.

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the ECtHR considered whether, due to criminal activity, the expulsion of a Bulgarian immigrant who was legally residing in Austria violated his Article 8 right to respect for private and family life.42 The ECtHR applied proportionality factors, weighing the state’s legitimate interest in public safety with a number of factors including the plaintiff’s age at the time of his criminal convictions, his age at the time he was ordered expelled, ties to the community in Austria, ties to the community in Bulgaria, and his duration of residence in Austria.43 The ECtHR reiterated ‘that national authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued.’44 Ultimately, the Court found Austria had violated the plaintiff’s Article 8 rights, reasoning ‘that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion,’ which were not present here.45 Thus, the ECtHR upholds human rights protections for immigrants by equally applying the same margin of appreciation framework to immigration matters as the Court applies to other human rights violations. 3.2 The United States’ Plenary Power Doctrine over Immigration Matters Under the plenary power doctrine, Congress and the executive have enjoyed nearly exclusive power to regulate immigration law, eluding judicial review.46 Precedent establishing rational basis review of immigration regulations date back to 1889 in Chae Chan Ping v. United States,47 also known as The Chinese Exclusion Case.48 Scholars have strongly criticised the racist and xenophobic 42 43 44 45 46

See Maslov v Austria App no 1638/03 (ECtHR, 23 June 2008) paras. 10–29. See ibid. 18–19. Ibid. 20. See ibid. See Sandy De Sousa, ‘An Analysis of Sessions v. Morales-Santana’s Implications on the Plenary Power Doctrine and the Supreme Court’s Approach to Equal Protection Challenges’ (2019) Seton Hall Law Review 1123, 1125 (2019) (explaining plenary powers over immigration policy). 47 130 US 581 (1889). 48 David A. Martin, ‘Why Immigration’s Plenary Power Doctrine Endures’ (2015) 68 Oklahoma Law Review 29, 30 (characterising Chae Chan Ping as origin of plenary power over immigration law). The Chinese Exclusion Case involved a Chinese laborer who had lived in the United States for over a decade and returned to China temporarily to visit family with prior U.S. government authorisation for reentry. See ibid. 31. While returning to the United States, Congress amended the Chinese Exclusion Act, banning all entry of Chinese laborers into the United States. See ibid. The Act, as amended, violated existing treaties between the United States and China, but nevertheless, the court affirmed the

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origins of the decision as well as the continuing plenary power doctrine stemming from it.49 Importantly, the claim to absolute power over immigration is not explicitly enumerated in the Constitution.50 Normally, when a power is not specifically enumerated in the Constitution those residual powers, commonly known as police powers, are delegated to the states.51 Nevertheless, the extreme deference granted to the legislature and executive, stemming from Chae Chan Ping, continues today.52 Congress and the executive have used the plenary power over immigration as justification to control U.S. borders and discriminate based on race, national origin, religion and alienage that would normally call for strict scrutiny in judicial review.53 While immigrants facing non-immigration related charges (i.e. criminal charges) in the United States are generally afforded the same constitutional protections as citizens, the level of constitutional protections afforded to noncitizens, and thus the deference given to immigration plenary powers, have a geographical component.54 For example, noncitizens outside of the territorial United States are not afforded the same constitutional protections as those within its borders.55 Moreover, due to the plenary power doctrine, courts generally apply rational basis review if a case relates to the entry or deportation

49

50 51 52 53 54 55

political branches’ inherent plenary power and sovereign right to control its borders. See The Chinese Exclusion Case 130 US at 589, 604 (1889) (justifying powers to exclude immigrants with difference from court). See Martin, supra note 48, p. 30 (criticising Chinese Exclusion Case and plenary power doctrine); Natsu Taylor Saito, ‘The Enduring Effect of the Chinese Exclusion Cases: The “Plenary Power” Justification for Ongoing Abuses of Human Rights’ (2003) 10 Asian Law Journal 13, 24; Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 255–57 (describing immigration plenary power ‘misconceived doctrinal theory’). See Martin supra note 48, p. 34 (explaining treaty and citizenship powers specifically enumerated, but not federal immigration control). See US CONST amend X. The Tenth Amendment states, ‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ See ibid. See generally Martin supra note 48. See Saito supra note 49, p. 17–18. Under the plenary power doctrine, Congress and the executive ‘regularly make rules that would be unacceptable if applied to citizens.’ Mathews v Diaz 426 US 67, 79–80 (1976). See infra notes 55–56. See US v Verdugo-Urquidez 494 US 259, 269 (1990) (rejecting claim that due process protections extend beyond territorial United States); Zadvydas v Davis 533 US 678, 693 (2001) (reaffirming Verdugo-Urquidez finding that certain constitutional protections unavailable to noncitizens outside United States).

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of a noncitizen, even when the immigrant is within the territorial boundaries of the United States.56 4

Comparative Analysis: The Margin of Appreciation and Plenary Power Doctrines as Applied to Collective Expulsions of Migrants during COVID-19

The ECtHR’s margin of appreciation doctrine and the standards of review U.S. courts apply to equal protection violations are analogous because they both serve as analytical tools to assess and balance legitimate state interests with individual rights.57 The ECtHR adjusts the margin of appreciation (applying a narrow to wide margin) based on the rights infringed upon, whereas the plenary power doctrine categorically confines immigration laws to most deferential standard of judicial review.58 Due to this categorical deference, many U.S. immigration court decisions would not survive under the margin of appreciation applied by the ECtHR in comparable cases. The United States, like ECHR member states, has a recognised authority to control its borders to prevent the spread and transmission of communicable diseases.59 During the COVID-19 pandemic, many ECHR member states invoked Article 15 (derogation in time of emergency) to manage the crisis.60 However, even in the face of COVID-19, the ECHR maintains that certain rights are non-derogable, and that when derogations are challenged, the ECtHR will ultimately decide if the infringement is appropriate.61

56 See Stephen H. Legomsky, ‘Immigration Law and the Principle of Plenary Congressional Power’ (1984) The Supreme Court Review 255, 255. 57 See Frantziou supra note 10; see e.g. Maslov v Austria App no 1638/03 (ECtHR, 23 June 2008) paras. 18–20; Slivenko v. Latvia App no 48321/99 (ECtHR, 9 October 2003) para. 113. 58 See Spielmann supra note 13; De Sousa supra note 46. 59 See Sarah R. Sherman-Stokes, ‘Public Health and the Power to Exclude: Immigrant Expulsions at the Border’ (2021) 36 Georgetown Immigration Law Journal 261, 275; see also Kiyutin v Russia App no 2700/10 (ECtHR, 10 March 2011). The Kiyutin court stated ‘[a]dmittedly, travel restrictions are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and “avian influenza” (H5N1)’: ibid. 60 Factsheet: Derogation in Time of Emergency (ECtHR, February 2022) , accessed 7 October 2022. 61 See ibid; see also supra notes 16–19 and accompanying text.

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In March 2020, the United State invoked a process, known as Title 42,62 which allows the director of the Center for Disease Control (CDC) to prohibit the entry of individuals when the director believes that ‘there is serious danger of the introduction of disease into the United States.’63 From October 2020 through September 2021, U.S. Border Patrol expelled over 1 million migrants to the country of last transit, or their home country, ‘in the interest of public health,’ as authorised by Title 42.64 Asylum seekers are included in those expelled under Title 42, and many have not been given the opportunity to have their claims heard.65 In particular, thousands of Haitian migrants fleeing Haiti due to extreme political turmoil, violence, and poverty have systematically been denied the opportunity to apply for asylum at the border and have been expelled back to Haiti without evaluation of their individual claims.66 Human rights experts from the United Nations have condemned the collective expulsion of Haitian asylum seekers and claim United States’ actions likely violate international human rights treaties.67 The ECtHR has consistently held that collective expulsion without examining individual claims and the expulsion to countries where there is a risk of

62 Title 42, Section 265 of the Public Health Service Act (1944). 63 See A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022 (explaining use of Title 42 during COVID-19 pandemic at southern border). See also Order Suspending Introduction of Persons from a Country Where a Communicable Disease Exists, 85 Fed. Reg. 16,567 (Mar. 20, 2020) (to be codified at 42 C.F.R. pt. 71); Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 65,806 (Oct. 13, 2020) (extending the March 20, 2020 order). 64 See Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2021 (U.S. Customs and Border Control, 2 December 2021) , accessed 7 October 2022. 65 See A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022. 66 See ibid. 67 See USA: UN Experts Condemn Collective Expulsion of Haitian Migrants and Refugees (Office of the United Nations High Commissioner for Human Rights, 25 October 2021) , accessed 7 October 2022.

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ill-treatment violate the ECHR.68 In Sharifi and Others v. Italy and Greece,69 the ECtHR found the member states violated Article 3 (freedom from torture and inhumane or degrading treatment) by returning asylum seekers back to their home country without being given the possibility to apply for asylum.70 Moreover, in Hirsi Jamaa and Others v. Italy,71 the ECtHR considered whether the forced return of migrants on the high seas to their country of departure, without evaluating their individual claims, constituted a violation of the Convention.72 The Grand Chamber found that such actions represented a violation of Article 3, due to the risk of ill-treatment in the country of departure (Libya) and risk of repatriation from Libya to their countries’ of origin, where ill-treatment is prevalent.73 Additionally, the ECtHR found a violation of Article 4 of Protocol Number 4, which prohibits the collective expulsion of migrants, and a violation of Article 13, which guarantees a right to an effective remedy.74 Under the ECHR, Title 42 – as applied to asylum seekers – would likely violate multiple provisions under the Convention.75 The application of Title 42 would likely not pass muster under the ECHR’s Article 15 derogation clause, even with the justification for health concerns due to COVID-19, because Article 3 is a non-derogable right.76 As Article 3 is absolute, the United States would have no margin of appreciation and no balancing would be applied.77 Therefore, as seen in Sharifi and Hirsi Jamaa, the ECtHR’s would likely hold the collective expulsion of Haitian migrants, back to Haiti, where they would likely be subjected to ill-treatment, violates Article 3 under the Convention. Additionally, the expulsion of Haitians back to Mexico may also violate 68 See e.g. Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, 24 October 2014); Hirsi Jamaa and Others v Italy 27765/09 (ECtHR, 23 February 2012). 69 Sharifi and Others v Italy and Greece App no 16643/09 (ECtHR, 24 October 2014). 70 See ibid. 71 Hirsi Jamaa and Others v Italy 27765/09 (ECtHR, 23 February 2012). 72 See ibid. 73 See ibid. 74 See ibid. 75 See Frantziou supra note 11; Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008); ECHR Toolkit: Protocol No. 4 to the Convention (ECtHR) , accessed 7 October 2022; Factsheet: Collective Expulsions of Aliens (ECtHR, June 2022) , accessed 7 October 2022; See A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022. 76 See Frantziou supra note 1. 77 See Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008).

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Article 3, (just as seen in Hirsi Jamaa’s expulsion to Libya) if the United States did not effectively evaluate the risk of ill-treatment in this third country. Title 42, as applied, would also likely violate Article 4 of Protocol Number 4, as the prohibition of collective expulsion is an ‘absolute and unconditional’ right.78 Article 4 defines collective expulsion as ‘compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.’79 Under Title 42, reports show that U.S. border control officers have not examined the claims of Haitian migrants at all and have simply expelled them back to Haiti or Mexico without further inquiry.80 Therefore, the collective expulsion exception is not satisfied, and the Haitian expulsions under Title 42 would likely violate Article 4 of Protocol Number 4 of the ECHR. As migrants expelled under Title 42 have not been given any opportunity to present their claims, this would also likely violate Article 13’s right to an effective remedy.81 Member states are afforded a margin of appreciation in conforming with their obligations under Article 13, but individuals must have an ‘effective possibility of challenging expulsion.’82 The inquiry of whether a migrant had an effective and accessible remedy is inherent under Article 4 of Protocol Number 4, and therefore, is closely related to Article 13.83 Therefore, if Article 4 of Protocol Number 4 is violated, Article 13 is likely violated as well.84 Under Title 42, Haitian migrants have not been given an opportunity to challenge their expulsions, as they have been systematically expelled without an

78 See ECHR Toolkit: Protocol No. 4 to the Convention (ECtHR) , accessed 7 October 2022. 79 See Factsheet: Collective Expulsions of Aliens (ECtHR, June 2022) , accessed 7 October 2022. 80 See A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022. 81 See Guide on Article 4 of Protocol No. 4 to the European Convention on Human Rights: Prohibition of Collective Expulsions of Aliens (ECtHR, 31 August 2022) , accessed 7 October 2022; A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022. 82 Guide on Article 4 of Protocol No. 4 to the European Convention on Human Rights: Prohibition of Collective Expulsions of Aliens (ECtHR, 31 August 2022) , accessed 7 October 2022. 83 See ibid. 84 See ibid.

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opportunity to present the merits of their case.85 Thus, Title 42 would likely violate Article 13 of the ECHR as well. Unfortunately, under the plenary power doctrine’s deferential ‘rational basis’ standard, U.S. courts will simply look to see if Title 42 has a theoretical relationship to the state’s legitimate health concerns.86 As COVID-19 has posed unprecedented health concerns, and there are studies showing securing borders has decreased the spread.87 As such, U.S. courts will likely find that Title 42 is constitutional because it is rationally related to a legitimate government interest and would not inquire further or apply a balancing test. 5

Conclusion

The ECtHR’s margin of appreciation approach serves as a model for the United States to maintain sovereignty without sacrificing individual human rights. The standards of review under the ECtHR’s margin of appreciation doctrine and the U.S. plenary power doctrine yields vastly different results in protecting individual human rights. As such, the U.S. court system should cease its application of the plenary power doctrine as a categorical exception to judicial review of immigration legislation and should instead apply the margin of appreciation framework to immigration legislation. Unlike the ECtHR, which applies the same margin of appreciation framework to all qualified human rights violations under the ECHR, the United States’ plenary power doctrine lowers judicial scrutiny when reviewing claims of discrimination in immigration matters. This doctrine creates a legal system where immigrants’ human rights are violated without judicial recourse. As demonstrated by Title 42, the plenary power’s deferential application results in human rights violations that would not be tolerated by the ECtHR when applying the margin of appreciation framework. Applying the margin of appreciation framework to immigration legislation would protect fundamental individual human rights to migrants and asylum seekers while still maintaining sovereignty. Additionally, legislating immigration through a human rights lens would improve U.S. credibility as a champion 85 See A Guide to Title 42 Expulsions at the Border (American Immigration Council, 15 October 2021) , accessed 7 October 2022. 86 See supra sections II.B and III.B. 87 Nahae Kang and Beomsoo Kim, ‘The Effects of Border Shutdowns on the Spread of COVID-19’ (September 2020) Journal of Preventative Medicine and Public Health 293, 293.

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of human rights, as its stature as a world leader of human rights is diminishing both in the national and international arenas. Replacing the plenary power doctrine with the margin of appreciation framework in U.S. immigration law would result in a paradigm shift necessary to uphold fundamental human rights of the world’s most vulnerable people.

Acknowledgements

The author would like to thank Professor Daniel Rietiker PhD, Senior Attorney, European Court of Human Rights for his support and guidance.

4

Procedural Safeguards in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction A Pathway to Better Outcomes Maeve Claffey Abstract

The contours of the immunity accorded to State officials have long been uncertain. The International Law Commission sought to clarify aspects of it in these Articles, which provide general guidelines on the immunity and a devote a section to procedural safeguards accorded to officials who are subject to the exercise of foreign criminal jurisdiction. This article analyses the utility of those safeguards in the context of their contribution to the legitimacy of domestic decisions on immunity as well as the importance of the communication of States on this issue. It is concluded that the safeguards enhance the legitimacy of such decisions by providing domestic practitioners with a guide to follow in their determinations. It is further found that the communication obligation is a key aspect of reducing potential political tensions that may arise as a result of the exercise of foreign criminal jurisdiction.

Keywords foreign official immunity  – foreign criminal jurisdiction  – ILC Draft Articles  – procedural safeguards – legitimacy in decision making

1

Introduction*

The customary international law of immunities seeks to maintain respect for the principle of the sovereign equality of States,1 as well as the principle that no State will sit in judgment of another – par in parem non habet imperium – by * Any errors are attributable to the author. 1 Article 2(1) Charter of the United Nations (adopted 26 June 1945, entered into force 31 August 1965) 1 UNTS XVI.

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_005

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precluding the courts of one State from adjudicating on the affairs of another.2 Immunity can extend to so-called ‘State officials’ with respect to acts carried out as part of their official duties.3 The scope of this immunity is somewhat uncertain and in an effort to remedy this, the International Law Commission (ILC) took up study on the broader issue of the immunity of State officials from foreign criminal jurisdiction in 2007.4 This work has been led by two Special Rapporteurs, who focused firstly on clarifying the scope and content of immunity rationae materiae and rationae personae.5 The Drafting Committee began its consideration of Draft Articles 8–16 in 2019 but only had enough time to adopt Article 8 ante,6 which provides that the procedural safeguards apply to any criminal proceeding against a current or former State official.7 This article assesses the approach taken by the Special Rapporteur and the ILC members, focusing in particular on two main issues. Firstly, will the Draft Articles, and specifically those covering procedures to be followed in cases of State official immunity, lead to increased legitimacy of determinations in this area of international law? Secondly, why is the notification of a State of intent to exercise criminal jurisdiction so important, and was the Special Rapporteur correct to designate communication pathways of mutual legal assistance treaties as subordinate to the diplomatic channel? With respect to the first question, this article will contend that procedures contribute a ‘roadmap’ to be followed in legal proceedings in which a claim of immunity may arise and function to ensure that, in a determination of whether a foreign official enjoys immunity, the State that ‘loses’ will accept the decision. It is further submitted that in this way, the procedural safeguards contribute to legitimacy in proceedings involving international law taking

2 Malcolm Shaw, International Law, (Cambridge University Press 2017) 523. 3 Carsten Stahn, A Critical Introduction to International Criminal Law, (Cambridge University Press 2018). 4 At its 2940th meeting, on 20 July 2007 (Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para. 376). The General Assembly, in paragraph 7 of its resolution 62/66 of 6 December 2007, took note of the decision of the Commission to include the topic in its programme of work. The topic had been included in the long-term programme of work of the Commission during its fifty-eighth session (2006), on the basis of the proposal contained in annex A of the report of the Commission (Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 257). 5 See generally https://legal.un.org/ilc/summaries/4_2.shtml accessed 24 June 2022. 6 ILC Eighth Report on the immunity of State officials from foreign criminal jurisdiction (27 April–5 June 2020; 6 July–7 August 2020) UN Doc A/CN.4/739 [“8th Report”] para 5. 7 For the avoidance of confusion, this Article refers to Draft Articles 8–16 as they were at the time of publication of the Special Rapporteur’s 7th and 8th Reports.

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place domestically by practitioners who may not have experience in or knowledge of the subtleties of the law in this area. With respect to the second question, it will be argued that communication is integral throughout the process because it informs the State of the official of potential coercive acts which could create serious political discontent between States. This reduces the probability of abusive or politically motivated prosecutions. In examining the process through which communication will take place, the object, purpose, and nature of mutual legal assistance treaties (“MLAT s”) will be briefly summarised before it is determined that the Special Rapporteur was correct to designate the diplomatic channel as the primary means of communication. In assessing the approach chosen by the Special Rapporteur and the ILC to the immunity of state officials from foreign criminal jurisdiction, the extent to which the procedures achieve their objectives will be analysed through the lens of the communication obligation. This article carries out some of the first in-depth analysis of the procedural safeguards and does so in view of arguably the most important safeguard: the communication obligation. The benefit of the Draft Articles will be assessed by reference to past examples of the exercise of foreign criminal jurisdiction as well as their potential to ensure outcomes accepted by both parties and prevent fallouts in foreign relations. Before outlining these arguments, the issues will be placed in context with reference to the law of immunities as well as the ILC work on this topic to date. 2

Background

2.1 International Law of Immunities The law of immunities seeks to ensure that States can perform their functions without being hindered by lawsuits targeted at their agents.8 The international law of immunities has only recently began to be developed on the international level.9 It should be noted that immunity is generally recognised as a procedural, and not a substantive, bar to prosecution; technically the procedural safeguards under discussion are second order or ‘meta’ procedural safeguards, but in the interests of brevity they will be referred to simply as procedural

8 James Crawford, Brownlie’s Principles of Public International Law, (8th edn, Oxford University Press 2012) 487 [“Brownlie”]. 9 Ibid.

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safeguards.10 The immunity rationae materiae enjoyed by State officials flows from the immunity of the State itself, which results from the equality and independence of States.11 This immunity covers acts carried out by such officials in the course of their functions to protect the State from being sued through its agents.12 Immunity rationae personae is enjoyed by high State officials: the ‘Troika’ of the Head of State, Head of Government and Minister of Foreign Affairs.13 It provides that such officials enjoy immunity for all acts carried out while in office. This prevents other States from interfering with these individuals in the performance of their roles.14 Other types of immunities include those enjoyed by diplomatic and consular officials, which are governed by their own international legal treaties.15 It is the first category that is of particular importance to this article, given the lack of both a treaty basis and of clarity on the class of officials and actions protected. 2.2 Background of the Draft Articles The ILC first took up study of the topic of the immunity of State officials from foreign criminal jurisdiction in 2007, under the direction of Special Rapporteur Roman Kolodkin.16 He was succeeded by Special Rapporteur Concepcion Escobar Hernandez who continues until the current day.17 The Articles include definitions and the beneficiaries and scope of immunity (personal and functional), but most debate to date has been limited to Draft Article 7. This

10 ILC Provisional Summary Record of the 3483rd Session (17 July 2017) UN Doc A/CN.4/ SR.4383, comments of Mr. Nolte, 8; Walther I, ‘The Current Work of the International Law Commission on Immunity of State Officials from Foreign Criminal Jurisdiction  – Comments on the Procedural Safeguards provisionally adopted in 2021’ (2022) KFG Working Paper Series 2022 No 54 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=40527 accessed 10 May 2022. 11 Brownlie (n 8) 488. 12 Carsten Stahn, A Critical Introduction to International Criminal Law, (Cambridge University Press 2018). 13 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 3 [“Arrest Warrant”]. 14 Brownlie (n 8) 489. 15 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 [“VCDR”]; Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261 [“VCCR”]. 16 ILC, Yearbook of the International Law Commission 2007 Volume II (Report on the work of the fifty-ninth session) UN Doc A/CN.4/SER.A/2007/Add.1 (Part 2) Chapter X [“ILC Yearbook 2007”]. 17 See Ms Escobar Hernandez’s preliminary report: ILC, Preliminary report on the immunity of state officials from foreign criminal jurisdiction, (31 May 2012) UN Doc A/CN.4/654.

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provides that there is an exception to State official immunity for certain international crimes, including genocide and war crimes.18 At the ILC’s 65th Session in 2012, Special Rapporteur Escobar Hernandez included a suggestion to examine the procedural aspects of State official immunity, linking it to prosecutorial discretion.19 In her 6th report, the Special Rapporteur suggested the Commission’s next work include research and drafting of procedural safeguards, which could function to reduce tensions between, on the one hand States seeking to exercise their criminal jurisdiction, and on the other, the State of the official against whom proceedings will be commences.20 It is accepted by the ILC, on the contention of Special Rapporteur Concepcion Escobar Hernandez, that the procedural safeguards constitute the progressive development of international law in this area.21 The content of these safeguards was laid out in a preliminary fashion in the 7th Report. 2.3 Development of the Procedural Safeguards Procedural safeguards in this context are tools that ensure certain steps are followed when one State seeks to commence criminal proceedings against an official of another State. The safeguards are captured in Draft Articles 8–16 and cover, inter alia, the consideration and determination of immunity by the officials of the prosecuting State as well as the invocation and waiver of immunity by the State of the official and a transfer of proceedings from the commencing State to the home State.22 It is envisioned that when one State commences ‘criminal proceedings’ against an individual that may be an official of another State,23 the relevant organ in the forum State will have regard to the rules contained in the Draft Articles and communicate with the State of the official vis-à-vis any immunity the individual may enjoy. Special Rapporteur Hernandez notes that the law of immunities can be politically fraught and envisages the 18 Draft Article 7, ILC Draft Articles on the immunity of State Officials from foreign criminal jurisdiction, Annex 1 of the Seventh Report, (29 April–7 June 2019; 8 July–9 August 2020) UN Doc A/CN.4/739 [“Draft Articles”]. 19 ILC, Report of the International Law Commission, 64th Session (7 May–1 June; 2 July– 3 August 2012) para 133. 20 ILC Sixth Report on the immunity of State officials from foreign criminal jurisdiction (30 April–1 June 2018; 2 July–1 August 2018) UN Doc A/CN.4/722 [“6th Report”] para 109. 21 ILC Seventh Report on the immunity of State officials from foreign criminal jurisdiction (29 April–7 June 2019; 8 June–9 August 2019) UN Doc A/CN.4/729 [“7th Report’] para 139. 22 Draft Articles 8 and 9, Draft Articles (n 18); Draft Articles 10 and 11, Draft Articles (n 18). 23 ILC, Report of the International Law Commission, 72nd Session (26 April–4 June; 5 July– 6 August 2021) UN Doc A/76/10 [“Report of the 72nd Session”] 112.

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procedural safeguards reducing the potential for tension between States.24 One need only recall previous high-profile incidents involving immunities to understand the potential for serious socio-political disputes between States in the operation of this area of law.25 Prior to the ILC’s study of the topic, the only clearly discernible procedural requirements emanated from the case of Djibouti v France, which stated that if immunity was being invoked, it was for the State of the official to notify the authorities of the State purporting to exercise criminal jurisdiction.26 It was held by the ICJ in a previous case that immunity should be considered at the very outset of proceedings, or in limine litis.27 Though this is a useful starting point, and both were later incorporated into the proposed set of Draft Articles, the international law regulating immunities could and will benefit from more thoroughly developed procedural regulations in order to facilitate consistency in decisions. The reasons for this will be explained in the next section. For clarity, it can be presumed that any reference to ‘Articles’ or ‘Draft Articles’ in the following refers only to Articles 8–16, concerning the procedural obligations, unless otherwise specified. 2.4 Progress of the ILC on the Draft Articles to Date Much of the debate to date has centred on Draft Article 7 (the list of international crimes to which immunity does not apply), but within the realm of the procedural guarantees there has been lively discussion over whether MLAT s are the best method of communication, whether the organ competent to determine immunity should be named in the Articles, whether the Articles can be streamlined, and whether a set of best practices should be appended to the Draft Articles in their final form.28 Additionally, in her 8th Report, the Special Rapporteur has suggested a dispute settlement mechanism, characterising it as another tool to assist the maintenance of friendly relations 24 ILC Sixth Report on the immunity of State officials from foreign criminal jurisdiction (30 April–1 June 2018; 2 July–1 August 2018) UN Doc A/CN.4/722 [“6th Report”] para 109. 25 See e.g. the death of Harry Dunn and the claim of diplomatic immunity: https://www .washingtonpost.com/world/2019/12/20/american-diplomats-wife-be-charged-with -causing-death-by-dangerous-driving-case-year-old-british-man/ accessed 29 April 2022. This, of course, concerns diplomatic immunity but the point stands in relation to State official immunity. See also the Enrica Lexie incident which is discussed subsequently. 26 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) Judgment, ICJ Rep 2008 p 177 [“Certain Questions of Mutual Assistance”]. 27 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion ICJ Rep 1999 p 62. 28 ILC, Report of the International Law Commission, 71st Session (29 April–7 June, 8 July– 9 August), UN Doc A/74/10 [“Report of the 71st Session”] para 155.

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between States.29 This report also contained some insight on the procedural safeguards. It was reiterated that the safeguards constitute progressive development and that they apply to Draft Article 7, without prejudice to any additional safeguards that may be applied given the gravity of these crimes.30 Some terminology was clarified, including that ‘official of another State’ is preferable to ‘foreign official’ and that the authority competent to determine immunity is to be determined on a case by case basis.31 The point at which immunity must be considered was also elaborated upon: in addition to being examined in limine litis,32 it must be examined when an official ‘may be affected’.33 It was further derived that such proceedings will only affect an official if it ‘hampers or prevents exercise of those functions by imposing obligations upon them’.34 More importantly for the purposes of this article, the diplomatic channel was officially designated as the primary means of communication by States, in part due to the response of ILC members when the Special Rapporteur proposed MLAT communication pathways as the first channel to be used.35 The Chair of the Drafting Committee further highlighted that the primary method of communication should more appropriately be the diplomatic channel.36 Bearing all of the above in mind, the first question sought to be answered is what value procedures hold in this area of international law. The added value of procedures will be discussed generally from a theoretical perspective, before questioning whether they will lead to increased legitimacy in decision in potential immunity cases. Procedural safeguards will do much to aid national courts in their immunity determinations because it can be clarified at the outset whether, for example, the State of the official will assert immunity for the official.

29 ILC Eighth Report on the immunity of State officials from foreign criminal jurisdiction (27 April–5 June 2020; 6 July–7 August 2020) UN Doc A/CN.4/739 [“8th Report”] para 33ff. 30 Report of the 72nd Session (n 23). 31 Ibid 112. 32 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion ICJ Rep 1999 p 62. 33 Article 8 Draft Articles (n 18). 34 Report of the 72nd Session (n 23) 113. 35 See e.g. ILC Provisional Summary Record of the 3484th meeting (25 September 2019), UN Doc A/CN.4/SR.3485 Comments of Ms Oral para 15. 36 International Law Commission, 72nd Session, Statement of the Chairperson of the Drafting Committee, Immunity of State Officials from Foreign Criminal Jurisdiction, 3 June 2021 [“Statement of Drafting Committee”] 12.

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Ensuring that there is an effective way for States to communicate about such matters will prevent confusion and potential political fallout,37 while simultaneously remedying potential impunity. By mandating details such as the point at which the State of the official should be notified, the Articles remove the discretion from states, thereby also removing the ability of the State of the official to read a political motive or impetus into the actions of the forum State, which could result in ill will.38 3

The Value of Procedures

3.1 Procedural Justice: Principles Informing the Draft Articles It is contended that the creation of a set of procedures will, in the majority of cases, lead to a decision that is seen as legitimate by the parties. Luhmann argued that procedures are social mechanisms that bring about decisions independent of the factual correctness of the arguments.39 He touched on the work of Max Weber when he argued that individuals will act against their own interests if required because the legitimacy of the procedure leads to the acceptance of disadvantages.40 It is submitted that this is the aspect of procedures that is valuable: its potential to ensure that decisions made by the court of the forum State will be accepted by the State of the official, i.e. ensuring the legitimacy of the procedure. In other words, it allows the State of the official to act against its own interests in accepting that its official may not be immune with respect to the acts in question. It has also been noted by the ICJ – albeit in the context of shared environmental obligations – that procedural rules are important to ensure an equitable balance of the rights of both parties.41 In light of concerns voiced in the Sixth Committee debate, as well as the ILC questioning the balance of rights enjoyed by the forum State and State of the official, this becomes significant.42 37 38 39 40 41 42

See eg Certain Questions of Mutual Assistance 186 (n 25) specifically regarding the service of a witness summons by a French judge on the Djiboutian president. Ibid. Niklas Luhmann, Legitimation durch Verfahren (6th edn, Suhrkamp, 1983) as outlined in Stefan Machura, ‘Legitimation durch Verfahren  – Was Bleibt?’ (2020) 22(1) Soziale Systeme 331, 332. Ibid 336. Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Rep 2010 p 14 para 177. Statement of Malaysia at the Sixth Committee at its 74th session: https://www.un.org/en /ga/sixth/74/pdfs/Statements/ilc/malaysia_2.pdf [22] accessed 18 May 2021; ILC, Report of the International Law Commission, 71st Session (29 April–7 June, 8 July–9 August), UN Doc A/74/10 [“Report of the 71st Session”].

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If it is considered that the procedural safeguards give more weight to one party in such a claim, their ability to give legitimacy to a decision is reduced and the purpose of the Articles (at least the ones regulating procedure) is defeated. It is further contended that the legitimacy of a procedure in this context is evidenced through engagement by the parties in judicial proceedings issued by the forum State. To that end, the procedural rules must not unfairly advantage or disadvantage one side. This commitment to fairness is welcomed given discussion on the injustice inherent in immunity proceedings: the grant of immunity usually (if not necessarily) deprives the moving party of the exercise of their right of access to the courts.43 The inclusion of articles specifically intended to ensure an equitable balance of the rights of both parties, it is submitted, goes some way to remedying the view that immunity means impunity.44 This is beneficial not only for the State of the official but also for the perception of the immunity by the concerned layperson, as it allows one of the oldest doctrines in international law to continue without affecting the individual too adversely. Proceduralisation of the international law on State official immunity is additionally useful because it provides States with steps to follow where one State seeks to institute proceedings against the official of another. Perhaps one of the most well-known cases where immunity became a flashpoint is the Spanish request for the extradition of Senator Augusto Pinochet heard in the House of Lords.45 Though this case is complicated by the various amnesties Senator Pinochet granted himself upon leaving office,46 as well as the fact that the House of Lords was called to deliberate on whether a Spanish extradition request could be honoured on English territory,47 it may have been helpful for the English (and/or Spanish) authorities to initiate contact with the Chilean government to clarify whether the government sought to assert immunity for Senator Pinochet. Indeed, while this could not have prevented the case having 43

See eg Rosanne van Alebeek, ‘Domestic Courts as Agents of Development of International Immunity Rules’, (2013) 26 Leiden Journal of International Law 559, 570 for a discussion of the balancing of these rights in domestic courts. Note that “right of access to the courts” may be worded differently in different jurisdictions. 44 Arrest Warrant (n 13) para 60: phrase first used when the ICJ laid out four ways in which former heads of State could be held accountable, to avoid the conception that immunity means impunity. 45 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3) (2000) 1 AC 147 [“Pinochet”]. Previous judgments: 1 AC 61, 1 AC 119. 46 Neil J Kritz, Transitional Justice: How Emerging Democracies Deal With Former Regimes Volume 2 (1st edn, United State Institute of Peace Press 1995) 500. 47 Pinochet (n 45).

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to be heard three times, it may have streamlined proceedings once they began for the third and final time. It also clarifies previously opaque aspects of the law, for example, whether the home State must invoke immunity for it to be considered, or whether the adjudicatory body could consider it propriu motu. Special Rapporteur Hernandez outlines that while invoking immunity for beneficiaries of immunity rationae personae may not be necessary for a multitude of reasons, including the fact that holders of this immunity are usually accredited with the authorities of the forum State,48 the situation with respect to immunity rationae materiae is different: the organs of the forum State cannot be expected to have prior knowledge of all beneficiaries of this immunity and so invocation by the home State is necessary to ensure judicial consideration.49 The utility of this clarification can be demonstrated with reference to the case of Djibouti v France.50 The relevant issue in this case was whether the issuing of summonses by French investigating judges for the Djiboutian procureur général and Head of National Security violated their functional immunity.51 It was held in that case that it was necessary for Djibouti to invoke immunity for the officials before the French court for such immunity to be considered.52 This is in line with the Special Rapporteur’s reasoning and, it is submitted, minimises the opportunities for disputes between affected States. Also at issue in that case was a summons served on the Djiboutian Head of State during an official visit in France.53 It was argued that this violated the personal immunity enjoyed by President Ismail Omar Guelleh.54 While the immunity of a Head of State from a summons is not something that has been discussed or researched at length, it is easy to see how, had the French court engaged in a preliminary consideration of the privileges and immunities attaching to the office of President, it may have reconsidered its actions in that regard. The timing of the service of the summons caused a rift between the two States, when Djibouti claimed that France had violated the Friendship Treaty in place between the two States.55 It is submitted that had the Draft Articles been available to the French court at the time it was issuing the summons, it may have prevented the upset in relations between the two States, as well as the perceived slight 48 49 50 51 52 53 54 55

7th report (n 21) para 42, 45. 7th report (n 21) para 43–50. Certain Questions of Mutual Assistance (n 26). Ibid. Ibid. Certain Questions of Mutual Assistance (n 26) 181. Ibid. Ibid.

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to Djibouti by the French judge in question. It is contended that, as the Draft Articles specifically provide that personal immunity be considered proprio motu by the Court in question, and that functional immunity requires invocation by the home State, incidents such as this will be prevented in the future. While, of course, the Articles cannot prevent an inopportune moment being chosen for service, it is submitted that perhaps this is an issue to be considered by the relevant authority in each individual case. With respect to the theoretical underpinnings of why procedures are beneficial, it hardly needs to be pointed out that an individual is more likely to enjoy fair and equal treatment if the rules for how they must be treated are laid down in a document, particularly one debated on and agreed by the pre-eminent international law scholars that comprise the ILC. Ensuring, for example, that the State of the official must be contacted before the exercise of jurisdiction ensures that the official will not be arrested until the exercising State has ‘sufficient information to conclude that a foreign official could be subject to its criminal jurisdiction’,56 entails a level of investigation and consideration of the nature of the alleged incident. This contributes to preventing abusive or politically motivated prosecutions, as there is a requirement for a certain level of evidence before the arrest can be carried out.57 Members of the ILC were largely in favour of the creation of procedural safeguards in the plenary sessions,58 highlighting their necessity to enhance the legitimacy of decisions made by national courts. It is not being argued that the Draft Articles will ensure that each domestic court comes to the same outcome in any given set of facts; rather, it is submitted that the fact that the Articles are in existence and can be consulted will ensure increased legitimacy in the decision, which benefits all parties: the forum State, the home State, the individual concerned, and the judge, prosecutor and police officers in the State undertaking criminal proceedings. Ultimately, the aim of the regulatory law creating procedures is to ensure that all actors behave in the same way.59 In this case, it guards against the abusive exercise of foreign criminal jurisdiction in three primary ways: the safeguards balance the rights of both parties effectively, they constitute a roadmap for domestic practitioners to refer to and follow, and they clarify the content of the law of immunities. Additionally, it is submitted that the clarification of, for 56 Draft Article 12, Draft Articles (n 18). 57 See eg Pinochet (n 45). 58 ILC Provisional Summary Record of the 3439th Session (31 September 2018) UN Doc A/CN.4/SR3439, comments of Mr. Nolte, 3. 59 WJ Stuntz, ‘The Uneasy Relationship between Criminal Procedure and Criminal Justice’, (1997) 107(1) Yale Law Journal 1.

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example, the content and scope of immunity rationae materiae and rationae personae on its own will aid significantly. 3.2 Will Procedures Be Beneficial to Immunity Determinations? Notwithstanding the above contention, there have been suggestions that there is no value in procedures, and that their creation will not accrue benefits such as consistency and legal certainty.60 To that end, it has been argued that attempting to create a single set of overarching procedures is unhelpful, because international procedures, unlike domestic ones, do not have the opportunity to develop organically, which means that any procedure created by a legal body will have an aspect of artificiality.61 It has been further argued that the optimal set of criminal procedures is based on a ‘complex set of socio-political, cultural and structural factors’, such that the attempt to create a universal set serving all populations equally well is unrealistic,62 and that a better solution is to tailor the procedures to each individual beneficiary. It is contended here that the first of these arguments is partially correct: international law by its nature does not lend itself to smooth and consistent universal application. The ICJ does not see anywhere near the volume of cases that come before a domestic court, and may only pronounce on contentious cases.63 It is, of course, acknowledged that the Court has jurisdiction to give Advisory Opinions, but that is not immediately relevant to this article.64 When hearing cases, the ICJ confines itself to the narrow points of law at issue in a particular case, to avoid judicial legislating.65 The lack of organic development can be remedied by drafting a set of Articles that are relatively simple to follow and that result from the input of all States represented on the ILC. Additionally, it is submitted that the Draft Articles comprise regulations that are general enough to leave room for national courts to adapt to each individual case of State official immunity before them. 60 61 62 63 64 65

Nancy Combs, Fact Finding Without Facts: the Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) 285. Ibid. Ibid 285. E.g. Nuclear Tests Case (Australia v France), Judgment, ICJ Rep 1974 p 253 para 59, where the Court declined to hear the action brought by Australia against France’s conducting of nuclear tests in the Pacific Ocean once France gave an undertaking to stop doing so. Statute of the International Court of Justice, (adopted 26 June 1945, entered into force 31 October 1945) 33 UNTS 993, [“ICJ Statute”], Art. 65. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Rep 2010 p 403 para 51 where the Court notes the narrow issue in front of it.

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With regard to the second argument, it is submitted that domestic courts have already had the opportunity to create procedures for considering State official immunity, and either have not done so, or have not been satisfied with what they have created, to the extent that the ILC took on this topic for consideration.66 The approach taken by the ILC provides domestic courts with steps to follow, which reduces the likelihood of a politically motivated prosecution due to the obligation of interaction between the State seeking to commence proceedings and the State of the official. This communication has been quite extensively regulated, down to the detail of what information needs to be included in the notification of the State of the official by the forum State.67 Another important consideration is that by going through the steps set out in the Draft Articles, an investigating or prosecuting State can evidence its bona fide intent to ensure justice, which may serve to mitigate any political fallout. The procedural safeguards have been eloquently described as replac[ing] the “binary status” of (non-) enjoyment of immunity with a situation in which the State concerned may pursue their relevant interests with the assistance and within the framework of different procedural steps.68 It is submitted that this is an accurate characterisation of the Draft Articles’ desired effect: it allows the State commencing proceedings to achieve the objective of seeking accountability for wrongdoing within a framework that simultaneously protects individuals in the name of maintaining friendly relations. 3.3 How Will the Procedural Safeguards Operate in Practice? The Special Rapporteur noted that a key aim of the Draft Articles was to build mutual trust between home and forum States during immunity proceedings.69 There was consensus among the members that the procedural aspects required consideration separate from that of the ‘substantive’ issues of State official immunity, due to the key role they play in preventing the ‘abusive or politically 66 ILC Yearbook 2007 (n 16). 67 Draft Article 10 Draft Articles (n 18). 68 Walther I, ‘The Current Work of the International Law Commission on Immunity of State Officials from Foreign Criminal Jurisdiction – Comments on the Procedural Safeguards provisionally adopted in 2021’ (2022) KFG Working Paper Series 2022 No 54 https://papers .ssrn.com/sol3/papers.cfm?abstract_id=40527 accessed 10 May 2022. 69 ILC, Report of the International Law Commission, 71st Session (29 April–7 June, 8 July– 9 August), UN Doc A/74/10 [“Report of the 71st Session”] para 129.

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motivated’ exercise of jurisdiction.70 The Draft Articles foresee the protection of a State official (broadly defined) from criminal proceedings undertaken mala fides by a State seeking to extract concessions from another, or simply as part of a diplomatic strategy designed to weaken another State for geopolitical reasons.71 The practice to date suggests that, in general, these Articles are applicable in situations where a former member of the so-called ‘Troika’ or other mid- to high-level official is subject to criminal jurisdiction with respect to acts carried out while serving as Head of State or Government.72 This was the case in the Pinochet prosecution in the UK, in which it was unequivocally held that while Senator Pinochet could be found liable for acts of torture committed during his reign.73 It was also found that if he had been a serving Head of State, prosecution would have been barred by virtue of his position.74 As will be laid out below, prosecutions have taken place for serving officials, in which case the question generally becomes whether the act in question was an official one, and whether it was undertaken in the course of the official’s duties. A (civil) case that considered these questions was Jaffe v Miller.75 The plaintiff initiated a tort action seeking damages for conspiracy to kidnap him from Canada and transport him to Florida to stand trial. The short judgment finds that the (Canadian) State Immunities Act is the relevant legislation and the decision is based thereon.76 It was held that, firstly, State immunity applies to public acts of the State unless a commercial action or personal injury is involved. From there it was reasoned that all ‘State functionaries’ are entitled to State immunity so long as they are acting in line with their duties.77 While these conclusions are not controversial, it is notable that there was no positive assertion of immunity from the State of Florida on behalf of any of the defendants; rather, immunity was inferred from the nature of the duties of the defendants (which included private investigators, lawyers and the Attorney General of Florida).78 While this case was litigated in 1990 and therefore precedes the ILC consideration of foreign official immunity, the 70 71 72 73 74 75 76 77 78

7th Report (n 21) para 105. Ibid. Arrest Warrant (n 12). Pinochet (n 45). Ibid. Jaffe v Miller, 5 O.R. (2d) 133, 73 D.L.R. (4th) 420, 1990 Carswell Ont953, 250 [“Jaffe v Miller”]. State Immunity Act, RSC 1985 c. S-18 (Canada). Jaffe v Miller (n 75) para 19. Jaffe v Miller (n 75) para 35.

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sequence of considerations mirrors that now laid down in the Draft Articles: the potential immunity of the defendants is considered at the outset, with the waiver of immunity (though not applicable in this case) also determined in the judgment.79 It is argued that this is a good example of a domestic judge following a set of steps (albeit laid down in statute rather than an international legal instrument) in reaching a determination on the immunity of State officials, and that the statute provided the court with a ‘road map’ through which their assessment of the immunity according to the defendants could be assessed. It should, however, be noted that under the current Draft Articles, the State in question should invoke immunity as the officials would be beneficiaries of immunity rationae materiae.80 It is submitted that the introduction of the entire set of Draft Articles, in which it is articulated which immunities apply to which persons, will aid in clarifying matters for the practitioner in a manner similar to the use of the State Immunities Act above. In any event, the procedure followed in this judgment exemplifies how the use of the Draft Articles will aid domestic judges in ‘ticking off’ the requirements for State official immunity. Including procedural safeguards accrues benefits such as clarity and transparency as well as according legitimacy to Court proceedings that follow the guidelines laid down in Draft Articles 8–16. It does this by increasing the likelihood that the State of the official will accept the decision (judicial or otherwise) made on the immunity status of the individual in question. The safeguards also open lines of communication between States which could help reduce political tensions and in practice, it is submitted, it will serve as a guide for domestic legal practitioners and improve the legitimacy of decisions taken by national courts. Immunity Cases: How the Procedural Safeguards Lead to Better Outcomes The issue of balancing respect for State sovereignty with accountability for criminal acts is one that has long plagued the international law of immunities.81 To what extent should immunity place an individual beyond the reach of the criminal justice system of another State? To date, this question has been handled by judges: highly-esteemed domestic practitioners who may have little to

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79 80 81

Jaffe v Miller (n 75) para 24. 7th report (n 21) para 43–50. Carsten Stahn, A Critical Introduction to International Criminal Law, (Cambridge University Press 2018).

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no experience in immunities, or indeed international law as an entire field.82 It has been noted in relation to such domestic jurists that [t]heir allegiance is first and foremost to their own demoi, and they must remain faithful to the domestic authorities in whose name they issue their judgments.83 In addition, van Alebeek states that the outer limits of state immunity are frayed and it is there that domestic colouring of the rule is most likely to occur.84 It is contended that in this context, a ‘better’ outcome is one that results from consideration where the Articles serve as a checklist for State undertaking such proceedings. In addition, it has been argued that judicial discretion is the enemy of legal certainty.85 While this has echoes of truth, it is submitted that the correct approach is not to remove all vestiges of discretion but rather to create and implement a fully-formed procedural scheme in order to strike the appropriate balance. The safeguards laid down in the Draft Articles allows the domestic judge to follow a series of considerations that adequately balance the rights of both parties. Given the potential for political ramifications in this area it is submitted that it is an area in need of more clarity that it currently enjoys as has been outlined previous in the case of Djibouti v France.86 This can be effected by essentially promoting structure in the exercise of judicial discretion, insofar as the Draft Articles set out procedures to be followed by the affected States. Returning to the theoretical perspective espoused above, it has been submitted that, if a procedure is seen as legitimate, acceptance of the outcome will 82

See eg Jaffe v Miller (n 75); Her Majesty the Queen in Right of Canada v Sheldon Edelson et al, 51 PD 625 (Israel, 1997); Schmidt v Home Secretary of the Government of the United Kingdom (IESC 24 April 1997) [“Schmidt”]. 83 Eyal Beneviste, ‘Comments on the Systemic Vision of National Courts as Part of the International Rule of Law’ (2012) 4 Jerusalem Review of Legal Studies 42, 45 in Rosanne van Alebeek, ‘Domestic Courts as Agents of Development of International Immunity Rules’, (2013) 26 Leiden Journal of International Law 559. 84 Rosanne van Alebeek, ‘Domestic Courts as Agents of Development of International Immunity Rules’ (2013) 26 Leiden Journal of International Law 559, 571. 85 Mark Klamberg, ‘What are the objectives of international criminal procedure? Reflections on the Fragmentation of a Legal Regime’, (2010) 79(2) Nordic Journal of International Law 279. 86 Certain Questions of Mutual Assistance (n 26).

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be more likely. It is submitted that this is especially the case for the exercise of criminal jurisdiction against a State official, as any such proceedings must be accepted by the Executive of the State of the official. In order for a decision to be seen as legitimate, the integrity of its processes (i.e. the steps taken to reach the decision) must be respected by all affected parties.87 By employing the Draft Articles, a better process occurs in such trials and proceedings, and results in better outcomes, i.e. outcomes that are accepted both by jurists and lay persons, not to mention the State of the official. What the Articles will do is ensure that the process preliminary to the actual judgment is carried out correctly, which will involve State institutions working in tandem. At the very outset of the issuing of criminal proceedings, the relevant branch will be tasked with considering whether immunity may apply.88 Next, it will be necessary for the organ (in most cases the judiciary) to determine whether immunity does apply. If it is found that the individual enjoys personal immunity, all consideration will cease, as all proceedings are barred by personal immunity.89 If it is found that the individual may enjoy functional immunity, further questions must be posed, including whether the impugned acts are official, whether they were carried out in an official capacity and whether the individual is a State official whose acts do, in fact, attract immunity.90 While this is being considered by the judiciary, the executive keeps the lines of communication with the State of the official open. If required and requested, the criminal proceedings may be transferred to the State of the official (though this must not be done in an effort to ‘shield’ the official from criminal proceedings).91 The obligations are not completely one-sided: the State of the official must also invoke immunity on behalf of the individual if it seeks to protect them. Given all the moving parts in this exercise, it is clear to see the many possibilities for things to go wrong: a lack of timely communication, an attempt to remove the official from the jurisdiction of the forum State or even a simple miscommunication through a language or cultural barrier. Such issues can be illustrated by reference to a case study of extradition proceedings between two European Union Member States.92 During the execution of a transfer under the European Arrest Warrant procedure between 87 See e.g. Michael Singer, ‘Legitimacy Criteria for Legal Systems’, (2006) 17 King’s College Law Journal 229. 88 Draft Article 8 Draft Articles (n 18), 7th report (n 20) para 35. 89 See eg Brownlie (n 8), Draft Article 4 Draft Articles (n 18). 90 Draft Article 5, Draft Article 6 (n 18). 91 Report of the 71st Session (n 69) p 323 para 175. 92 Amparo Salom Lucas and Maria Isabel Llambés Sánchez ‘Mutual legal assistance on criminal matters: a real story – when theory meets practice’ (2021) 22 ERA Forum 337.

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France and Spain, practical issues faced included interpretation requirements, issues with the setting up of video conferencing and conflicts of domestic law on the permissibility of taking a DNA sample from an individual in custody. It is conceded that these proceedings did not raise questions of immunity but it is submitted that they are indicative of the types of issues that may be faced in cross jurisdictional proceedings. It is further contended that these will be aggravated when the two countries in question are not part of a union with special measures in place to ensure ease of movement and harmonisation and cooperation of law enforcement and judicial proceedings.93 In addition, perceived political slights may damage previously friendly relationships between States. For example, the ICJ proceedings between France and Djibouti damaged relations between those two States.94 Finally, the Enrica Lexie incident led to difficulties in the relations of Italy and India, after Italian marines fired shots at Indian sailors while transporting commercial goods.95 In that case, Italy (with the support of the European Parliament) argued that India was incorrect to detain the marines after allegedly forcing the Italian vessel to call to the port of Kochi due to pirate activity.96 The diplomatic fallout from the incident was serious, with the EU threatening to impose sanctions on India,97 as well as the cancellation of a planned summit between the EU and India.98 It is submitted that the procedural safeguards work to prevent similar disruptions in relations by providing domestic judges with a framework to follow. While the Enrica Lexie incident involved other contentious issues, such as concurrent jurisdiction and domestic murder charges,99 it is submitted that, had there been a guide for domestic judges that differentiated the types of immunity, the two States could have avoided the political tensions that ensued. It is submitted that the matter could have been restricted to a bilateral process, instead of involving the European Union. Had the Indian courts had use of the 93 See e.g. the EU Mutual Legal Assistance Treaty: Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 29 May 2000. 94 Certain Questions of Mutual Assistance (n 26). 95 In the Matter of an Arbitration concerning the Enrica Lexie incident (The Italian Republic v The Republic of China), Award, (21 May 2020) para 829 [“Enrica Lexie Award”]. 96 Ibid para 145. 97 Article 3, the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002 (India). 98 https://thewire.in/external-affairs/enrica-lexie-arbitral-tribunal-italian-marines ac­cessed 26 June 2022. 99 Enrica Lexie Award (n 95) para 366.

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Draft Articles, a reasoned consideration of the immunity due to the marines could have ensued and a diplomatic solution negotiated. The goal is to have a vigorous process that tests the immunity of the State official. Consideration following the process set out in the Articles, in which the decision-maker can methodically understand the issues at play, is more likely to happen when there is an understanding of what to do: that is to say, when to consider immunity or when a waiver of immunity is valid.100 Criminal proceedings could be initiated by one State to stymie another in its pursuit of goals not palatable to the initiating State, or other comparable circumstances. Without the development of guidelines such as the Draft Articles, the justice of domestic legal proceedings could more readily be rejected, since the entire proceedings may be characterised as politically motivated and lacking in legitimacy. Clear and thorough procedural rules would result in the dismantling of a State’s ability to negatively affect its relations with another State by bringing frivolous criminal proceedings against an official. It is not contended that putting in place procedural safeguards will result in substantively similar outcomes. Each case has its own facts that will result in different outcomes upon application. Rather, the safeguards inform the State official, the forum State authorities, the home State authorities, and any police officers involved, of steps that need to be taken. This increases the legitimacy (both real and perceived) of the decision to commence criminal proceedings. It is submitted that the change of communication pathway contributes to this: by communicating through diplomatic channels, it can be ensured that the separation of powers is respected and that insofar as possible the executive does not get involved with the determination reserved for the judiciary, subject to the organisation and practice of the State in question. The oft-repeated saying is that justice must be seen to be done. When applied to the immunity of State officials from foreign criminal jurisdiction this can be ensured by allowing States to communicate executive to executive and ensuring that the decision making power is reserved for the judiciary. Similarly, the Articles contribute to ensuring legitimacy in the decision made insofar as ensuring procedure is followed essentially gives judges and prosecutors a template to use in carrying out criminal proceedings.

100 See Draft Articles 8 (Consideration of Immunity) and Draft Article 11 (Waiver of Immunity) Draft Articles (n 18).

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Mutual Legal Assistance Treaties and the Obligation  to Communicate: The Best Way to Ensure Legitimate  Decision Making?

One of the goals of the Draft Articles is to build trust and reduce potential instability in the relations between the two States involved in immunity proceedings.101 It has been argued above that the ability of procedures to achieve this is one of the key reasons for including them, i.e. that the legitimacy of the procedure in the first instance is connected with its ability to secure this outcome. One of the procedural safeguards that will ensure this facilitates structured and open lines of communication between States involved in such proceedings.102 The following sections will outline the Draft Articles that provide for communication and it will be argued that, in all cases, the diplomatic channel should be used as the primary means of communication. It will be further submitted that the Special Rapporteur was correct to make the use of MLAT s subordinate to the diplomatic channel in the first instance,103 given the clear differences between the object of MLAT pathways and the diplomatic channel as well as its pre-eminence for the conduct of ‘official business’.104 4.1 The Importance of the Communication Guarantee The designated communication pathway is of particular importance because the notification of the State of the official constitutes the interaction between the State seeking to exercise jurisdiction over the official of another State that involves the State of that official. In other words, having considered the status of the individual, and having determined that they may enjoy immunity, the forum State now must inform the State of the official that it seeks to pursue criminal proceedings against that individual. It is also the first warning the State of the official will get that another State seeks to commit a potentially coercive act against a national of that State. As such, the potential for tension is high and, if not effected through the correct channel, could result in political fallout and potentially the mistreatment of the individual in question. In the Seventh Report, it was proposed that notification, and indeed,

101 102 103 104

7th Report (n 21) para 22. 7th Report (n 21) para 22. 8th report (n 29) 119. Article 41(2) Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 [“VCDR”].

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all communication, be effected in the first instance through any MLAT s binding on both parties.105 Use of Mutual Legal Assistance Treaties: Why They Are Inappropriate for Communications Concerning (Potential) Matters of Immunity It is worth considering at the outset why Special Rapporteur Hernandez chose to include MLAT communication pathways in the Articles. She noted that the procedural safeguards in the Seventh Report were proposed in the context of a network of such treaties, and that this made it possible to define and understand the relevant safeguards.106 The reliance on such treaties stems in large part from the fact that they were among the only such instruments to formalise an obligation to notify and outline methods through which this notification could take place.107 While this is a valid reason for using them in the first place, the justification offered for using the communication mechanisms within them was to ensure that notification could be effected quickly and efficiently.108 At first glance, this analysis appears sensible and straightforward. The efficacy of the MLAT and its in-built notification mechanisms are clear: they generally allow for communication between States that goes through a designated organ, resulting in swifter, more efficient judicial processes, including but not limited to requesting evidence from another State or seeking implementation of an order made by a Court in a different State. Additionally, some regional blocs already have such treaties in place,109 making it possible to fast-track the codification of these mechanisms in the context of immunity from prosecution. The fact that these agreements are already in place means that the process can be even more efficient. Common features of treaties for mutual legal assistance are the designation of a Central Authority, through which all communication takes place, and the designation of certain crimes for which extradition will not be permitted. The Association of Southeast Asian Nations

4.2

105 106 107 108 109

7th Report (n 21) para 120. 7th Report (n 21) para 108. 7th Report (n 21) para 119. Report of the 71st Session (n 69) para 129. European Convention on Mutual Assistance in Criminal Matters, ETS 30 [“CoE MLAT”]; Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 29 May 2000 [“EU MLAT”]; Inter-American Convention on Mutual Assistance in Criminal Matters, (adopted 23.05.1992, entered into force 14.04.1996), OAS Treaty Series 75 [“IA MLAT’]; Instrumento que Cria uma Rede de Cooperação Jurídica e Judiciária Internacional dos Países de Língua Portuguesa, Feito na Praia 23.11.2005, accessible at https://www.cplp.org/id-3872.aspx, accessed 02.02.21.

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Treaty on Mutual Assistance in Criminal Matters provides that while each State party will designate a central authority, States may also choose to communicate through the diplomatic channel.110 In her comments at the Plenary Session, the Special Rapporteur further noted that using the pathways created by MLAT s would mean that the relevant courts or authorities would always be aware that immunity had been invoked and would be required to consider it immediately.111 It was further argued that notification of the Court could be effected quickly and efficiently through such instruments.112 It is argued that the use of MLAT channels would not have been fit for purpose and would not have achieved the benefits of proceduralisation for three main reasons: firstly, the difference in purpose of MLAT networks and communications concerning immunity; secondly, potential interference of or lack of cooperation with the Executive branch; and thirdly, the opinions of various ILC members as well as treaty regulation of communication for the purposes of ‘official business’ mandating that it take place through the diplomatic channel.113 4.2.1

Clear Difference in the Object and Purpose of Mutual Legal Assistance Treaties versus That of the Draft Articles One of the main problems with the use of MLAT s for the notification of the exercise of foreign criminal jurisdiction is the fundamental difference between the purpose for which they were designed – assist with evidentiary and investigatory matters – and the purpose for which the Special Rapporteur is arguing they should be used.114 The purpose of the Draft Articles is to prevent the abusive exercise of foreign criminal jurisdiction against an official of another State,115 whereas the purpose of MLAT s is to make investigation and prosecution as efficient as possible, without letting jurisdictional issues affect the process.116 It is therefore submitted here that the use of this form 110 Treaty on Mutual Legal Assistance in Criminal Matters, (adopted 29 November 2004, entered into force 1 June 2005) 2336 UNTS 271, Art 4(4), accessible at https://asean.org/sto rage/2020/02/20160901074559.pdf, accessed 30.01.2021. 111 ILC Provisional Summary Record of the 3488th Session (1 October 2019) UN Doc A/CN.4/ SR.3488, Comments of Ms Escobar Hernandez para 11. 112 7th Report (n 21) para 194. 113 Art 41 VCDR (n 15); ILC Provisional Summary Record 3487th Meeting (26 September 2019), UN Doc A/CN.4.SR.3487 Comments of Mr Ruda Santolaria 15 referencing Swiss case law. 114 See Preamble, CoE MLAT (n 109); Preamble, ASEAN MLAT (n 110); Preamble, EU MLAT (n 109); Paragraph 1(1). 115 7th Report (n 21) para 105. 116 Ibid.

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of communication ignores the political implications of immunity determinations. Given the status attaching to a State official, anything other than the use of the diplomatic channel is inappropriate, as there is no guarantee that the central (usually judicial) authority assigned under an MLAT will be able to communicate with the executive, who may need to be aware of potential investigative or judicial action against an official. In addition, many mutual assistance treaties have a provision permitting the refusal of such assistance for certain stipulated reasons, such as the likelihood of prejudice to ‘sovereignty, security, ordre public or other essential interests of its country’.117 It was the view of Ms Oral, a member of the ILC, that the existing regime of MLAT s may not be fit for total incorporation into this new system for the codification of immunities.118 A request for assistance, in the form of the collection of evidence or locating a witness, for example, differs greatly in substance from notifying another State of a potentially coercive act against an official of that State. It has been noted repeatedly that immunity is not purely a legal determination: the reality is that in many States, the executive has some say in whether an official is granted immunity.119 It is submitted that the unavoidable nexus between immunity proceedings and political considerations warrants the use of a channel better designed for politically sensitive matters. It is further argued that mandating that such treaties be the primary method of communication adds an unnecessary barrier to an already complicated exercise. As stated above, the regime for international cooperation is intended for the collection of evidence and finding of witnesses, to the extent that the bulk of the literature on the topic discusses the difficulties inherent in this process, to the complete exclusion of how these mechanisms may be utilised by States to carry out complex consultations about State official immunity,120 or indeed, any process other than the collection of evidence and coordination of witnesses. Therefore, this means of communication is not the most effective for the purpose at hand and the diplomatic channel should be used in the first instance.

117 Article 2b CoE MLAT (n 109). 118 ILC Provisional Summary Record of the 3484th meeting (25 September 2019), UN Doc A/CN.4/SR.3485 Comments of Ms Oral para 15. 119 See, for example Article 86(1) Code of Civil Procedure (India) Article 86(1); State Immunity Act 1978, Article 21(1) (UK). 120 See eg David McClean, International Cooperation in Civil and Criminal Matters, (Oxford University Press 2012); Michael Abbell, Obtaining Evidence Abroad in Criminal Cases 2010, (BRILL 2010) 145.

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4.2.2 Potential Executive Involvement It could be contended at this point that direct communication between the judicial authorities of two States removes any political considerations and allows the determination of immunity to be a purely legal matter. It is submitted, however, that this is not the case for one primary reason: that a judicial determination will not prevent the executive from intervening if the verdict is not politically acceptable. Turning to two real life examples, the Italian Court of Cassation found in Ferrini (admittedly, a civil case) that Germany could be held liable for breaches of jus cogens norms, despite its plea of State immunity.121 Though this was decided as a matter of law, it was rejected in no uncertain terms by the Italian government, which expressed its disagreement with Germany that it was entitled to State immunity for the acts.122 This affair resulted in proceedings before the ICJ, which held that Germany was entitled to State immunity notwithstanding the breaches of jus cogens norms during the Second World War.123 It is submitted that the fact that this case was a civil matter does not alter the analysis: though an award of damages may not result from a criminal verdict, a State will still be negatively affected by a finding of responsibility for criminal activity. Similarly, in the Distomo case,124 it was held that Germany was responsible for massacres occurring in that area in 1944, a judgment affirmed by the Greek Supreme Court. These verdicts, however, were publicly renounced by the Greek Minister for Justice, who prevented the recovery of compensation by refusing to give his approval.125 Thus, it is submitted that even if two States designated a judicial authority to carry out immunity determinations, there is no guarantee that the executive would not intervene if it found the result unfavourable. It is further contended that the above perfectly exemplifies how a ‘purely’ judicial determination of immunity would play out, despite the fact that these cases concerned State, and not State official immunity. It is submitted that the intervention by the executive in both cases invites the assumption that an unfavourable judgment – or at least, one deemed to have adverse political ramifications – would be publicly 121 Ferrini v Germany, Appeal Decision, No. 5044/4, 11 March 2004, ILDC 19. 122 Riccardo Pavoni, ‘A Decade of Italian Case Law on the Immunity of Foreign States: Lights and Shadows’, [2009] 19 Italian Yearbook of International Law 73, 81. 123 Jurisdictional Immunities of the State, (Germany v. Italy, Greece intervening) [2012] ICJ Rep 99. 124 Germany v Prefecture of Voiotia, Representing 18 Persons from Distomo Village, Petition on Cassation Against Default, No 11/2000, ILDC 287 (GR 2000), Supreme Court of Greece. 125 Article 923 Code of Civil Procedure (Κώδικας πολιτικής δικονομίας) (Greece).

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disavowed. This, it is submitted, would undermine the legitimacy of the deciding court and the validity of its decision. 4.2.3 Issues Concerning the Organ Competent to Determine Immunity A further issue with the use of MLAT communication mechanisms is that different States and legal systems have different organs competent to determine immunity. Given the Rapporteur’s recourse to MLAT s, it is clear that she considered the judiciary singularly competent.126 This is not, however, how States have universally understood this competence and not all States assign this role to the judiciary.127 This issue was repeatedly highlighted by members of the ILC while the Rapporteur was criticised for paying too much regard to civil law systems in which the judiciary were the primary determiners of immunity.128 Though the relevant organ does vary from State to State, it is submitted that the Rapporteur should avoid the use of treaties for judicial assistance in matters that may not fall within their competence under national law. It is contended that the use of the diplomatic channel in the first instance allows for recourse to the judiciary where necessary, thereby making the diplomatic channel more appropriate, in order to achieve consistency with the respective powers of the executive and judiciary under domestic law. While some State judicial organs have an obligation to notify the executive in a case that might concern a foreign official, others, such as Germany, prohibit communication between the organs.129 This can prove problematic as immunity is as much a political issue as it is a legal one, and as such, it is submitted that using treaties designed for cooperation between judiciaries does not achieve the goal of ensuring stability in inter-State relations, as it disregards the diversity of global legal systems. For example, in the United States of America (USA), the State Department is permitted to make a recommendation to the judiciary on whether immunity should attach to an official.130 This was the case in Singh, where the State Department’s suggestion of immunity was followed, as Singh was the incumbent Prime Minister of India at the time 126 7th Report (n 21) para 129. 127 See next paragraph for examples. 128 ILC Provisional Summary Record of the 3481st meeting, (26 August 2019) UN Doc A/CN.4/ SR.3481, Comments of Mr Tladi 4; ILC Provisional Summary Record of the 3487th Session (22 July 2019) UN Doc A/CN.4/SR3487, comments of Sir Wood para 5. 129 Statement of the Government of Germany to the 68th Session of the ILC (2016), available at https://legal.un.org/ilc/sessions/69/pdfs/english/iso_germany.pdf, accessed 29.01.21 [“Statement of Germany”]. 130 Erica E. Smith, ‘Immunity Games: How the State Department Has Provided Courts with a Post-Samantar Framework for Determining Foreign Official Immunity’ (2014) 67 Vanderbilt Law Review 569.

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of some of the alleged crimes.131 Similarly, the English and Indian immunity determinations generally comprise judicial deference to the suggestion of the Executive.132 4.2.4

ILC Considerations and the Previous Regulation of Communication of ‘Official Business’ Many members of the ILC believed that the diplomatic channel was more appropriate as the designated authorities under MLAT s tended to be judicial, whereas Ministries of Foreign Affairs were more likely to be involved in issues of State official immunity.133 Some representatives felt particularly strongly about this issue, with Sir Michael Wood expressing the opinion that the reference to such treaties was superfluous, as they have little to do with issues of immunity.134 Further, the choice to subordinate the diplomatic channel to a subsidiary means of communication was questioned by the national representatives on the ILC.135 Additionally, States such as the Netherlands and Belarus specifically noted that the diplomatic channel was the medium preferred for communications about the exercise of foreign criminal jurisdiction.136 The Rapporteur further noted that Spanish law provided for communications with foreign States to take place through the diplomatic channel.137 In addition, the French Criminal Procedure Code provides that requests for the deposition of

131 Sikhs for Justice v Singh (2014) 64 F. Supp. 3d 190. 132 Gionata Piero Buzzini, ‘Lights and Shadows of Immunities and Inviolability of State Officials in International Law: Some Comments on the Djibouti v. France Case’, (2009) 22 Leiden Journal of International Law 455. 133 ILC, Provisional Summary Record of the 3486th meeting (30 September 2019), UN Doc A/CN.4/SR. 3486, Comments of Mr Gomez Roblado para 12. 134 ILC, Provisional Summary Record of the 3486th Meeting (30 September 2019) UN Doc A/CN.4/SR.3486, Comments of Sir Wood para 8. 135 ILC Provisional Summary Record of the 3481st meeting, (16 July 2019) UN Doc A/CN.4/ SR.3481, Comments of Mr Tladi, 5; Provisional Summary Record of the 3481st meeting, (16 July 2019) UN Doc A/CN.4/SR.3481 Comments of Mr Murphy, 18; ILC Comments of Mr Murphy; ILC Provisional Summary Record of the 3482nd meeting, (16 July 2019) UN Doc A/CN.4/SR.34832, Comments of Mr Aurescu, 7. 136 Statement by the Government of Belarus to the 72nd Session of the International Law Commission, available at https://legal.un.org/ilc/sessions/72/pdfs/english/iso_belarus .pdf accessed 29.01.21; Statement by the Government of the Netherlands to the 72nd Session of the International Law Commission, available at https://legal.un.org/ilc/ses sions/72/pdfs/english/iso_netherlands.pdf accessed 29.01.21. 137 Organic Act No 16/2015 Article 53 (Spain), accessible at https://www.boe.es/buscar/act .php?id=BOE-A-2015-11545, accessed 05.01.21.

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a foreign official is to be effected through the diplomatic channel.138 Similarly, Irish legislation on mutual assistance provides that communication through the Central Authority is ‘without prejudice’ to the diplomatic channel.139 Though the paucity of international instruments governing immunity and the notification thereof is noted, it also seems clear that the notification of one State by another about the intent to exercise foreign criminal jurisdiction falls squarely within the definition of ‘official business’ in the Vienna Convention on Diplomatic Relations (VCDR), which has over 190 State parties.140 This was the view espoused by Mr Ruda Santaloria during an ILC meeting considering the articles: he believed that the only treaty that came close to governing the situation was the Vienna Convention on Diplomatic Relations (VCDR), which specified that all communication of ‘official business’ should take place through the diplomatic channel.141 The contention that the diplomatic channel should be used in the first instance is supported by the practice of States in asserting immunity: in the Enrica Lexie incident, Italy notified India of its assertion of immunity for the two members of the armed forces through the diplomatic channel,142 while in the ILC debate, it was submitted that the best means of communication was the diplomatic channel.143 On the whole, the lack of clarity at the domestic level makes inter-State communication more complex. It is submitted that stipulating that communication occur through the diplomatic channel will go a long way to avoid national issues of the organ competent to determine immunity. If the MLAT communication pathways, as initially suggested by the Special Rapporteur, remained the primary designated means by which States could communicate, the judicial process may have been compromised, or may have appeared to have been compromised.

138 French Criminal Procedure Code, Article 656, accessible at https://www.legifrance.gouv.fr /codes/section_lc/LEGITEXT000006071154/LEGISCTA000006121328/#LEGISCTA00000 6121328, accessed 18.02.21. 139 Criminal Justice (Mutual Assistance) Act 2008, Article 18(15) (Ireland), accessible at http://www.irishstatutebook.ie/eli/2008/act/7/enacted/en/html accessed 14.06.2021. 140 Article 42(2) Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 [“VCDR”]. 141 Article 41(2)VCDR (n 138); ILC Provisional Summary Record 3487th Meeting (26 Septem­ ber 2019), UN Doc A/CN.4.SR.3487 Comments of Mr Ruda Santolaria 16. 142 Enrica Lexie Award (n 95) para 829. 143 ILC Provisional Summary Record 3487th Meeting (26 September 2019), UN Doc A/CN.4 .SR.3487 Comments of Mr Ruda Santolaria 15 referencing Swiss case law.

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4.2.5 Inconsistency within the Draft Articles As a final note, it is submitted that the use of the diplomatic channel is sensible when it is noted that Draft Article 15 provides that the forum State and the State of the official will consult on matters regarding the determination of immunity through the diplomatic channel.144 It is submitted that this provision makes it even more optimal for the notification to take place through the diplomatic channel as, in the event of a disagreement, the Ministry of Foreign Affairs will be fully appraised of the situation. It is further submitted that, while important, concerns of expeditiousness may not be of primary importance in a situation where there are allegations of criminal conduct made against a State official. What is of much greater importance, it is submitted, is that the State of the official is made aware of the exercise of foreign criminal jurisdiction in a timely manner and is given the opportunity to determine how it wishes to approach the situation. There was a general consensus among the ILC that decisions on immunity should be taken at the very highest level within a State, a sentiment that is reflected in practice: see for example, the consideration of the immunity of a British police officer in the Irish Supreme Court.145 It is therefore submitted that communication through MLAT channels would not necessarily ensure considerations took place at the highest level, in contrast to the use of the diplomatic channel. The Rapporteur, in her response to the issues raised at the Plenary Session, believed that the use of communication pathways outlined in MLAT s was appropriate as the relevant courts or authorities would always be aware that immunity had been invoked and would be obliged to consider it immediately.146 It is submitted that using the diplomatic channel achieves this goal while also being more reflective of State practice, as well as a better umbrella solution for the issue of the different organs competent to determine immunity. This proposition was supported in the UN Sixth Committee,147 where States emphasised the utility of that channel and the fact that immunity is not a matter that was envisaged or provided for in MLAT s.148 144 Draft Article 15, Draft Articles (n 18). 145 Schmidt v Home Secretary of the Government of the United Kingdom (IESC 24 April 1997). 146 ILC Provisional Summary Record of the 3488th meeting (1 October 2019), UN Doc A/CN.4/SR.3488, Comments of Ms Escobar Hernandez 11. 147 United Nations General Assembly (UNGA) Sixth Committee (74th Session) Report of the International Law Commission on the work of its seventieth session. 148 UNGA Sixth Committee Report of the International Law Commission on the work of its seventy-first session, summary record of the 23rd meeting (28 October 2019), UN Doc A/C.6/74/SR.23 para 84 (Slovakia); Statement of the Portugal to the United Nations Sixth Committee, 74th Session concerning the ILC 71st Report, accessible at https:// www.un.org/en/ga/sixth/74/pdfs/Statements/ilc/portugal_2.pdf, accessed 07.07.21.

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Conclusion

Two primary arguments have been made in this article: firstly, that procedural safeguards are a valuable addition to the Draft Articles as by laying down steps to follow they enhance legitimacy in decisions concerning State official immunity and secondly, that the designation by the Special Rapporteur of the diplomatic channel as the primary means of communication for States is correct. With respect to the first argument, the ‘better outcomes’ posited include the acceptance by both sides of the decision due to the understanding that it was made in line with the rules created and agreed upon in the Articles. The specificity of the Draft Articles, which include inter alia the amount of information that must be included in a notification from the forum State to the State of the official informing the State of the official of the commencement of criminal proceedings, provide clear steps to follow, allowing the decision-maker to come to a reasoned conclusion. Judicial discretion – while still present in the consideration of other matters – is removed from areas of consideration such as whether the State of the official has to positively assert immunity. This limitation results in a more limited ability of the State of the official – or other parties with an interest in the matter – to claim the proceedings are an abusive exercise of foreign criminal jurisdiction. Secondly, the notification obligation is of paramount importance and as such it is correct that it should take place through the diplomatic channel, not only because immunity falls within the definition of ‘official business’ as found in the VCDR but also because the proposed alternative (channels created by MLAT s) is unsuitable for communications of a highly political nature. This becomes apparent when the object and purpose of MLAT s is contrasted with the needs of a communication concerning the potential exercise of foreign criminal jurisdiction over the official of another State: MLAT s generally provide for the provision of real evidence and other practical matters. In addition, they generally connect judicial authorities in participating States, which is not suitable in the case of immunity determinations, as it is not always the judiciary that decide whether an official enjoys immunity. Designating the diplomatic channel as the primary means of communication brings the Draft Articles into harmony with other older, widely-ratified treaties,149 meaning States do not have to adopt new methods of working should the Articles become a binding

149 VCDR (n 102), which currently has 193 State parties per the United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-3&chap ter=3&clang=_en accessed 30 June 2022.

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instrument. This has since been accepted by the Special Rapporteur and is contained in the Draft Articles.150 The issue that subsumes the two arguments outlined is that immunity is a matter of international law that is decided primarily in domestic courtrooms, with often-limited input from international lawyers or indeed the ICJ. The Draft Articles aim to aid the domestic practitioner and ensure a set of steps can be followed when making an immunity determination, with the macro goal of avoiding the creation or exacerbation of political tensions between States. The final form of the Draft Articles is unclear, but whether it becomes a legally binding document or not, it is submitted that ensuring the diplomatic channel is the primary means of communication between States in issues of immunity brings the Articles into line with older, widely-ratified treaties and removes any potential confusion over means of communication. In addition, the procedural safeguards as a whole provide some much needed clarity and certainty in this notoriously complex and politically charged area of international law.

Acknowledgements

The author would like to thank Dr Carsten Stahn for his supervision of the thesis that became this article, as well as the editorial team at the Yearbook and the reviewers. Special thanks to Olivia Campbell for her invaluable editing of and commentary on earlier drafts of this article. 150 8th report (n 29) 113.

5

The Role of Domestic Courts in the Prosecution of International Crimes

Why Functional Immunity of Foreign State Officials Is Not an Obstacle to the Jurisdiction of National Courts Alejandro Ortega Navarro Abstract The non-applicability of immunities for international crimes before international criminal tribunals has long been settled. The question of the relevance of immunities for international crimes before domestic courts remains more contentious, with the general agreement that functional immunity of foreign State officials should in principle not apply in national jurisdictions. However, there is no consensus when it comes to the legal basis under which immunities are deemed inapplicable. Previous claims that an exception to the rules of immunity arises from the jus cogens nature of the prohibition of torture or genocide misrepresent the nature of immunity and create a sense of legal ambiguity. Immunities are themselves an exception to the dominating principle of jurisdiction. Instead, the inapplicability of functional immunity in domestic proceedings stems from the customary principle of individual criminal responsibility and international treaties requiring the prosecution of international crimes under the basis of universal jurisdiction. The Federal Republic of Germany has used this basis in order to increase its efforts to end impunity for international crimes irrespective of where they were committed. The actions of Germany highlight that international law clearly promotes a role for all domestic courts in the fight against impunity that started with the case of Pinochet.

Keywords international crimes – state officials – immunity – jurisdiction – individual criminal responsibility

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_006

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Introduction

It is increasingly apparent that the International Criminal Court (“ICC”) and other international(ised) criminal tribunals do not alone have the capacity or the resources to prosecute all international crimes committed around the world.1 The effective prosecution of international crimes cannot only depend on these international courts, but ‘must be ensured by taking measures at the national level’.2 However, given the nature of international crimes, the State apparatus itself is often implicated and this makes domestic accountability unlikely.3 Prosecution of international crimes should then logically rest on the national courts of other States. This possibility raises the question of the applicability of immunity of foreign State officials during domestic proceedings, an issue which has been a persistent legal debate since the turn of the century.4 This article identifies that the inapplicability of immunities during domestic proceedings is a corollary to the exercise of extraterritorial jurisdiction and the principle of individual criminal responsibility. The article focuses on functional immunity (ratione materiae), since it is well-established that the personal immunity (ratione personae) enjoyed by incumbent high ranking State officials is absolute and continues to apply in domestic proceedings even when the official is alleged to have committed an international crime.5 Functional immunity is granted before foreign national courts because of two main reasons: (i) under international law, the State, and not the individual, 1 Phillippe Sands, From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge University Press 2003), 74–88. 2 Rome Statute of the International Criminal Court (“Rome Statute”), 4th preambular paragraph. See also 6th preambular paragraph: ‘[I]t is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. 3 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (“Arrest Warrant”) [2002] ICJ Reports 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [78], Dissenting Opinion of Judge Al-Khasawneh, [6]. 4 See e.g. Dapo Akande and Sangeeta Shah, ‘Immunities Of State Officials, International Crimes, And Foreign Domestic Courts’ (2010) 21 European Journal of International Law 815; Antonio Cassese, ‘When May Senior State Officials Be Tried For International Crimes? Some Comments on the Congo V. Belgium Case’ (2002) 13 European Journal of International Law 853; Salvatore Zappalà, ‘Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour De Cassation’ (2001) 12 European Journal of International Law 595. 5 Arrest Warrant, [54]; Institut de Droit International, Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law (2001), Article 2; Chanaka Wickremasinghe, ‘Immunity of State Officials & International Organisations’ in Malcolm Evans, International Law (4th edn, Oxford University Press 2014), 381; Hazel Fox, The Law of State Immunity (2nd edn, Oxford University Press 2008), 686.

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bears responsibility over acts performed in an official capacity;6 and (ii) prosecution of an official would be an indirect prosecution of the State, which is contrary to the equality of States under international law.7 Earlier attempts to find an exception to these rules mischaracterise the nature of immunity and the context in which it operates. Arguments that rely on an apparent clash between immunity and jus cogens to find such an exception only help create a sense of legal ambiguity surrounding the issue of functional immunity.8 By now, it is understood that no such clash exists in international law: jus cogens are substantive rules concerned with the prohibition of practices such as torture or genocide, while immunities are procedural rules relating to the exercise of jurisdiction by national courts.9 Therefore, it is necessary to first understand how jurisdiction is conferred to and exercised by national courts in order to determine whether and when immunities are applicable before them. The clash between immunities and jurisdiction has been referred to as ‘irreconcilable’ and is the main obstacle to defining the precise scope of immunities.10 The first section of the article analyses this link between (extraterritorial) jurisdiction and immunity. The relationship between the two concepts reveals that jurisdiction is the dominating principle, leaving immunities as an exception precluding the exercise of jurisdiction only in certain cases.11 Therefore, the availability of immunity necessarily depends on what type of jurisdiction is being asserted. In other words, it must be assessed whether the two reasons to exceptionally grant immunity continue to apply in cases where States exercise extraterritorial jurisdiction over international crimes. This assessment is made in depth in the following two sections. The second section evaluates 6

Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human (Oxford University Press 2008), 112. 7 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), [2012] ICJ Reports 99, [57]. 8 See e.g., Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet case’ (1999) 10 European Journal of International Law 237, 265; Alexander Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ (2007) 18 European Journal of International Law 955; Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press 2008), 343. 9 Jurisdictional Immunities of the State, [93]; Jones v Saudi Arabia [2006] UKHL 26, [24]; Emmanuel Voyiakis, ‘Access to Court v. State Immunity’ (2003) 52 International and Com­ parative Law Quarterly 297, 321. 10 Fox (n. 5), 74. 11 Rosalyn Higgins, ‘Asser Institute Lectures on International Law: Certain Unresolved Aspects of the Law of State Immunity’ (1982) 29 Netherlands International Law Review 265, 271.

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the network of treaties (e.g. Geneva Conventions, Torture Convention and Genocide Convention) that were concluded with the express intention to empower national courts with the jurisdictional framework to prosecute perpetrators of international crimes on the basis of extraterritorial jurisdiction,12 questioning the consistency of allowing a claim of functional immunity with the terms of this jurisdictional framework.13 The third section explores the principle of individual criminal responsibility affirmed by the International Military Tribunal (“IMT”) at Nuremberg,14 and how this affects questions of (State) responsibility over international crimes committed in an official capacity. Overall, the article reaches the conclusion that the combination of individual criminal responsibility and extraterritorial jurisdiction clearly point towards the fact that international law promotes a role for domestic courts to prosecute international crimes which necessarily must exclude the application of functional immunity. As Broomhall argues, ‘if regular enforcement is (as it should be) a goal of the system of international criminal justice, then universal jurisdiction will be an essential part of that system.’15

12

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (“First Geneva Convention”) (signed 12 August 1949, entered into force 21 October 1950), 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (“Second Geneva Convention”) (signed 12 August 1949, entered into force 21 October 1950), 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (“Third Geneva Convention”) (signed 12 August 1949, entered into force 21 October 1950), 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”) (signed 12 August 1949, entered into force 21 October 1950), 75 UNTS 287; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) (adopted 10 December 1984, entered into force 26 June 1987), 1465 UNTS 85; Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) (adopted 9 December 1948, entered into force 12 January 1951), 78 UNTS 277. 13 R. v. Bow Street Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No.3) (“Pinochet (No 3)”) [1999] 38 ILM 581, 642: ‘I cannot see how, so far as torture is concerned, this immunity can exist consistently with the terms of that Convention’; 651: ‘No rational system of criminal justice can allow an immunity which is co-extensive with the offence.’ 14 IMT, The Trial of the Major War Criminals, Judgment [1946], 223. 15 Bruce Broomhall, International Justice and the International Criminal Court: Between Sove­ reignty and the Rule of Law (1st edn, Oxford University Press 2004), 105.

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The Relationship between Immunity and Jurisdiction: A Question of Sovereignty

2.1 Why Grant Functional Immunity? State officials, both current and former, enjoy functional immunity for all acts committed in an official capacity.16 As expressed above, there are two main justifications to grant functional immunity to foreign State officials. First, because a State can only manifest its legal existence through actions carried out by individuals in their capacity as organs of the state.17 By making a plea of functional immunity, the State is essentially assuming responsibility over the conduct.18 Therefore, actions performed in an official capacity are legally considered acts of the State, and not of the individual State official.19 This was confirmed in the case of Eichmann, where the Supreme Court of Israel found that official acts are acts of the State alone and only the State can incur responsibility for them.20 Similarly, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) held that: ‘Such officials are mere instruments of a State and their official action can only be attributed to the State. […] State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act.’21 In other words, functional immunity shields a State official from punishment over conduct for which they bear no responsibility under international law. The second reason to grant immunity to foreign officials is related to State sovereignty. Functional immunity attaches to the action in question rather than the individual; it is granted because of the sovereign nature of the act itself which is why it continues to remain in place even after the official is

16

Robert Jennings and Arthur Watts, Oppenheim’s International Law (Oxford University Press 1992), 456; Joanne Foakes, The Position of Heads of State and Senior Officials in International Law (Oxford University Press 2014), 136. 17 Hans Kelsen, Principles of International Law (2nd edn, Holt, Rinehart and Winston 1966), 358–359. 18 Certain Matters of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Reports 177, [196]. 19 Sir Arthur Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’, Collected Courses of the Hague Academy of International Law Vol 247, 89; Alebeek (n. 6), 112. 20 Attorney General v Eichmann [1968] 36 ILR 227, Supreme Court of Israel, 309. 21 ICTY, Prosecutor v Blaškić, Judgment of the Request of the Republic of Croatia for review of decision of Trial Chamber II of 18 July 1997 [1997] IT-95-14-AR108, [38] (emphasis added).

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no longer a State agent.22 Therefore, functional immunity derives from the broader rules of State immunity, making it one of the procedural safeguards to ensure respect for the prevailing principles of equality, dignity and independence of States.23 Because under international law all States are equal members of the international community,24 one State prosecuting in their national courts the sovereign acts of another State would be an infringement upon the latter’s sovereignty.25 This is affirmed by the general principle of par in parem non habet imperium (‘an equal has no authority over an equal’).26 The International Court of Justice (“ICJ”) found in Jurisdictional Immunities of the State that the principle of sovereign equality is one of the fundamental principles of the international legal order.27 The ICJ added: ‘This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory.’28 Accordingly, functional immunity prevents other States from circumventing the rules on State immunity by taking action against the individuals carrying out the business of the State and by adjudicating over matters which the territorial State has the exclusive jurisdiction.

22 23

24 25

26 27 28

Paola Gaeta, ‘Official Capacity and Immunities’ in Antonio Cassese and Paola Gaeta, The Rome Statute of The International Criminal Court: A Commentary (Oxford University Press 2002), Volume I, 975; Wickremasinghe (n. 5), 381. Jurisdictional Immunities of the State, [57]; Institut de Droit International, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes (2009), Article II.1: ‘Immunities are conferred to … respect the sovereign equality of States’ (emphasis added); James Crawford, Brownlie’s Principles of Public International Law (9th edn, Oxford University Press 2019), 471; Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 British Yearbook of International Law 220, 221. UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970) A/RES/2625(XXV). Attorney General v. Eichmann (n. 20), 309: ‘Were it not so, the first state would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of states based on their sovereignty.’; Antonio Cassese, International Criminal Law (2nd edn, Oxford University Press 2008); Ramona Pedretti, Immunity of Heads of State and State Officials For International Crimes (Brill-Nijhoff 2015), 20. Fox (n. 5), 57; Foakes (n. 16), 11; Elizabeth Helen Franey, ‘Immunity from the criminal jurisdiction of national courts’ in Alexander Orakhelashvili, Research Handbook on Jurisdic­ tion and Immunities in International Law (1st edn, Edward Elger Publishing 2015), 201. Jurisdictional Immunities of the State, [57]. Jurisdictional Immunities of the State, [57].

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2.2 Exploring the True Nature of Immunity: An Exception to Jurisdiction The analysis of the reasons to grant functional immunity reveals that it is inherently linked to the concept of jurisdiction. This is a logical conclusion. Immunity cannot operate in a legal vacuum but is instead dependent on the exercise of a pre-existing jurisdiction: ‘In other words, there can only be immunity from jurisdiction, where there is jurisdiction.’29 However, in practice courts have normally addressed questions of immunity prior to discussing a jurisdictional basis or have incorporated both concepts as part of the same overlapping discussion.30 This has the effect of conflating the true nature of the rules of immunity by assuming they have primacy, when in reality immunities operate as an exception to the exercise of jurisdiction over a claim that is otherwise enforceable.31 Sir Robert Jennings refers to jurisdiction as the ‘dominating principle’; as such, the question of whether functional immunity is applicable or not cannot even arise without the prior assessment of the type of jurisdiction that is being exercised.32 In Arrest Warrant, the ICJ agreed that, as a logical matter, ‘only where a State has jurisdiction under international law … [can there] be any question of immunities in regard to the exercise of that jurisdiction’.33 However, the majority immediately circumvented the question of jurisdiction and decided to focus exclusively on the immunities enjoyed by incumbent State officials.34 In a Separate Opinion, Judges Higgins, Kooijmans, and Buergenthal regretted this approach, because determining immunities in this manner leads to the perception that the rules of immunity have value by and of themselves.35 The three judges noted: By focusing exclusively on the immunity issue, while at the same time bypassing the question of jurisdiction, the impression is created that 29 Arrest Warrant, Separate Opinion Judge Guillaume, [1]. 30 Lorna McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sove­ reignty’ (2007) 18 European Journal of International Law 903, 914. 31 ILC, ‘Immunity of State officials from foreign criminal jurisdiction’ Memorandum by the Secretariat (2008) A/CN.4/596, [14]; Ian Sinclair, ‘The Law of Sovereign Immunity: Recent Developments’ (1980) 167 Recueil des Cours 113, 215: ‘The true foundation of immunity is that it operates by way of exception to the dominating principle of jurisdiction.’ 32 Sir Robert Jennings, ‘The place of the jurisdictional immunity of States in international and municipal law’ (1987), Vorträge, Reden und Berichten aus dem Europa-Institut Nr. 108, 19. See also Higgins (n. 11), 271. 33 Arrest Warrant, [46]. 34 Arrest Warrant, [47–61]. 35 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [71].

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immunity has value per se, whereas in reality it is an exception to a normative rule which would otherwise apply. It reflects, therefore, an interest which in certain circumstances prevails over an otherwise predominant interest, it is an exception to a jurisdiction which normally can be exercised and it can only be invoked when the latter exists.36 Therefore, the relationship between jurisdiction and immunity is one which requires a balancing of competing interests. But as Sinclair points out, ‘one does not start with the assumption that immunity is the norm, and that exceptions to the rule of immunity have to be justified’.37 Instead, the assumption should be the non-availability of immunities, which is granted only in certain cases, in order to protect particular rights and interests of a sovereign State.38 How National Jurisdiction over International Crimes Shapes ‘Sovereignty’ Taking the non-availability of immunity as the starting point, in order to know when the exclusive rights of a sovereign State need to be exceptionally protected must then depend on what is understood by sovereignty. Sovereignty is a notion that is regularly changing, in that it constantly conforms to the developing nature of international law.39 This changing nature clearly has effects on the development of the rules of immunity, an example being the evolution of State immunity in civil law matters. The absolute doctrine of State immunity has been replaced by the restrictive doctrine, which distinguishes between commercial and sovereign acts but immunity only remains for the latter.40

2.3

36 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [71]. See also Lee Caplan, ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’ (2003) 97 American Journal of International Law 741, 754. 37 Sinclair (n. 31), 215. 38 ILC, Fifth report on immunity of State officials from foreign criminal jurisdiction by Concepción Escobar Hernández, Special Rapporteur (2016) A/CN4/701, [147]; Sinclair (n. 31), 215. 39 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [72]; Andrew Clapham, ‘National Action Challenged: Sovereignty, Immunity and Universal Jurisdiction before the International Court of Justice’ in Mark Lattimer and Philippe Sands, Justice For Crimes Against Humanity (1st edn, Hart 2003), 305, 312 he added: ‘[I]n the end the debate turns on what one chooses to understand by the term sovereignty and who should be protected’; Gerry Simpson, Great Powers And Outlaw States: Unequal Sovereigns In The International Legal Order (1st edn, Cambridge University Press 2004), 54. 40 United Nations Convention on Jurisdictional Immunities of States and Their Property, (2004) A/RES/59/38, Article 2, 10; Jurisdictional Immunities of the State, [59–61]; James Crawford (n. 23) 471; Fox (n. 5), 502–32.

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As such, the qualities and limits of sovereignty ‘may occasionally appear or disappear, and certainly change their emphasis.’41 Much of the emphasis during the latter part of the 20th century was placed in developing a framework for the protection of human rights,42 and the codification of international crimes into several treaties.43 By creating a network of treaty bodies and international institutions, the international community transitioned from a system of coexistence into a system of cooperation.44 These developments should not be viewed as an abandonment of sovereignty, but rather as the transformation of sovereignty by conveying it through the appropriate legal channels in order to make ‘collective decisions, and the taking of effective collective action, over international political problems.’45 It is this context of collective action which prompted States to conventionally agree to the exercise of extraterritorial jurisdiction over certain international crimes.46 Under these conventions, States are placed under an obligation to either prosecute or extradite suspects (aut dedere aut judicare), which allows for the possibility to assert a type of criminal jurisdiction that is based on the ‘heinous nature of the crime’ rather than on the territory where the offence was committed or the nationality of the accused.47 The ICJ noted in Questions relating to the Obligation to Prosecute or Extradite how these treaties are the illustration of the international community coming together and committing 41 Broomhall (n. 15), 59. 42 United Nations, Charter of the United Nations (“UN Charter”) (1945), 1 UNTS XVI, Article 55. 43 See n. 12. 44 Wolfgang Friedmann, The Changing Structure of International Law (Columbia University Press 1964); Richard Barnet, ‘Coexistence and Cooperation in International Law’ (1965) 18 World Politics 82. 45 Sir Robert Jennings, ‘Sovereignty and International Law’ in Gerard Kreijen and Marcel Brus, State, Sovereignty, And International Governance (1st edn, Oxford University Press 2002), 42. 46 The use of ‘extraterritorial’ or ‘universal’ jurisdiction will specifically refer to the jurisdiction provided for by particular international crimes conventions. For an analysis of universality see: Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735; Claus Kreß, ‘Universal Jurisdiction Over International Crimes and The Institut De Droit International’ (2006) 4 Journal of International Criminal Justice 561; Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press 2004). 47 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [46]: The three judges added that under these treaties, ‘universal criminal jurisdiction for certain international crimes is clearly not regarded as unlawful’; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction To International Criminal Law And Procedure (Cambridge University Press 2019), 74–76.

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themselves to end impunity by prosecuting those responsible for international crimes on the basis of universal jurisdiction.48 This commitment results from the fact that international law promotes the role of domestic courts in the prosecution of international crimes. The Rome Statute clearly establishes that the ICC shall be complementary to national jurisdictions.49 Thus, national courts have primacy over the investigation and prosecution of international crimes.50 At the same time, the universal nature of the different conventions speaks to the practical realities that the courts of the State where international crimes take place might not be the most appropriate in cooperating with the enforcement of international criminal law.51 During the drafting of the Genocide Convention, the Committee expressed reservations at relying on the courts of the State where genocide was committed, since it is likely that the government itself would be responsible.52 The notion that State officials will often be involved in the commission of international crimes was cited by the IMT as a ‘valid reason’ as to why their prosecution ‘cannot be left with the exclusive jurisdiction the State that would have control over it under ordinary circumstances.’53 Therefore, these developments highlight that international law does not mean to restrict the jurisdiction over international crimes to a few international tribunals or the territorial State. Instead, the effective prosecution of international crimes must be ensured through a comprehensive legal order and ‘a flexible strategy, in which newly established international criminal tribunals, treaty obligations and national courts all have their part to play.’54 3

Extraterritorial Jurisdiction for International Crimes

The previous section explored the relationship between the concepts of jurisdiction and immunity, resolving the tensions between both competing 48 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), [2012] ICJ Reports 422, [74–75]; Sands (n. 1), 89. 49 Rome Statute, 10th Preambular paragraph, Article 1. 50 Rome Statute, Article 17(1)(a)–(c), Article 20(3). 51 Hari Osofsky, ‘Domesticating International Criminal Law: Bringing Human Rights Violators to Justice’ (1997) 107 Yale Law Journal 191, 206; Kreß (n. 46), 575. 52 Report of the Ad Hoc Committee on Genocide and draft Convention drawn up by the Committee (Dr. Karim Azkoul, Rapporteur) (1948) UN Doc E/74/EN, 29. 53 United States v List and others (‘The Hostages Case’) Trials of War Criminals before Nuremberg Military Tribunals under Control Council Law No 10 (1950) Vol 11, 1241. 54 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [51] (emphasis added).

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interests by finding that jurisdiction is the predominant norm and immunity an exception to that norm.55 It is assessed in the following whether the two reasons that exceptionally grant functional immunity apply in the case of international crimes and preclude the exercise of jurisdiction in national courts. The following section will first address the issue of extraterritorial jurisdiction. As explained above, a court’s jurisdiction is a question that must be decided before entertaining any issues of the immunity and/or responsibility of those before it.56 The previous section already introduced the gradual movement towards bases of jurisdiction other than territoriality, and how this directly challenges the idea that the territorial State has exclusive jurisdiction over certain matters. It will be now assessed in more detail how the specific jurisdictional provisions of certain treaties affect the applicability of functional immunity as a procedural safeguard. The following will be exemplified on the basis of the Torture Convention, the Geneva Conventions and the Genocide Convention. 3.1 The Torture Convention It would be incorrect to suggest that the main objective of the Torture Convention is to prohibit acts of torture.57 That would imply that the practice of torture is only prohibited by the Convention itself and not as a matter of customary international law.58 In reality, the Convention is primarily concerned with providing certain jurisdictional measures in order to strengthen the already existing prohibition of torture.59 To this end, Article 4 of the Convention provides that States must ensure all acts of torture are deemed criminal offences under internal law.60 Furthermore, the jurisdictional 55 Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [51]. 56 Arrest Warrant, Separate Opinion Judge Guillaume, [1]. 57 Hermann Burgers and Hans Danelius, The United Nations Convention Against Torture: A Handbook on The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff Publishers 1988), 1. 58 The prohibition of torture is part of customary international law and is a norm of jus cogens. See Questions relating to the Obligation to Prosecute or Extradite, [99]; Al-Adsani v. The United Kingdom (Application no 35763/97), Joint Dissenting Opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, [61]. 59 Torture Convention, 6th Preambular paragraph: ‘Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’ (emphasis added); Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (1st edn, Oxford University Press 2008), 8; Burgers and Danelius (n. 57), 1. 60 Torture Convention, Article 4.

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provisions of the Convention make it clear that States are under an obligation to either prosecute or extradite any person alleged of having committed torture.61 Article 5(1) of the Torture Convention requires States party to establish their criminal jurisdiction over acts of torture when they are (a) committed in their territory, (b) committed by a national of their State and, (c) if appropriate, committed against a national of their State.62 Under Article 5(2) a State is bound to likewise establish jurisdiction over any alleged torturer that is found within their territory.63 From the combination of these provisions, the obligation of States to empower their courts with full jurisdiction over the crime of torture, including on the basis of universal jurisdiction, is clear.64 To that end, the Committee against Torture (“CAT”) confirmed in a communication against Senegal relating to former Chadian President Hissène Habré, that failure to establish universal jurisdiction under the Convention constitutes a violation of Article 5.65 Thus, after enacting all of the jurisdictional provisions, the State in which the torturer is present is placed under an obligation to submit the case to the relevant authorities.66 The sole alternative to prosecution is extradition.67 However, the decision between prosecution and extradition only arises if another State actually makes a request for extradition.68 If no request is made, the forum State is left with no option but to prosecute.69 The decision of the House of Lords of the United Kingdom in Pinochet (No 3) further confirms the effect of the jurisdictional provision of the Torture Convention. The Law Lords found that the jus cogens character of the prohibition 61

Ruth Wedgwood, ‘International Criminal Law and Augusto Pinochet’ (2000) 40 Virginia Journal of International Law 829, 832. 62 Torture Convention, Article 5(1). 63 Ibid. 64 Nowak and McArthur (n. 59), 255; UN Commission on Human Rights, Report of the Working Group on a draft convention against torture and other cruel, inhuman or degrading treatment or punishment (1984) E/CN4/1984/72, [26]: ‘The inclusion of universal jurisdiction in the draft convention was no longer opposed by any delegation.’ 65 CAT, Suleymane Guengueng et al v. Senegal (Communication No 181/2001) (2006) CAT/C/36/ D/181/2001, [9.6]. 66 Torture Convention, Article 7(1); Nowak and McArthur (n. 59), 345: ‘The strongest obligation to avoid a safe haven for perpetrators of torture by bringing them to justice before their domestic courts applies to the forum State.’ 67 Torture Convention, Article 7(1). 68 CAT has stated that while there is an obligation to bring a person to trial if they are found in the territory of a State party, no State is under an obligation to seek an extradition, not even the territorial State. See Marcos Roitman Rosenmann v. Spain (Communication No 176/2000) (2002) CAT/C/28/D/176/2000, [6.7]. 69 Nowak and McArthur (n. 59), 256.

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of torture was alone insufficient for establishing the jurisdiction of national courts over acts of torture.70 Lord Browne-Wilkinson argued how the peremptory prohibition of torture as such did not contain any element that permitted or required its prosecution by domestic courts.71 Lord Hutton’s views support the same conclusion, namely that acts of torture were crimes under international law that were peremptorily prohibited, but that there was no jurisdiction under which to extradite General Pinochet prior to the entry into force of the Torture Convention.72 The Torture Convention armed national courts with the missing link of ‘worldwide universal jurisdiction.’73 Therefore, the Torture Convention is one of the instruments which embodies the international commitment to end impunity for international crimes, by ensuring accountability and preventing a torturer from escaping ‘the consequences of [their] acts by going to another country.’74 The development of these instruments directly target the idea that one State is adjudicating over another. It reflects the agreement between States that the conduct which international law labels as ‘criminal’ should not be left with the exclusive jurisdiction of the territorial State.75 Rather, the most desirable solution is to permit the prosecution of those responsible for international crimes outside the territory where they occur.76 In the context of the Torture Convention this point is particularly important, because the definition of torture under Article 1 requires it to be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’.77 It would be inherently inconsistent to restrict the definition only to official acts of torture, require States to prosecute them on the basis of extraterritorial jurisdiction, and at the same time allow for a claim that this prosecution is an infringement upon the sovereignty of the State which the official torturer was acting on behalf of. 70 71 72 73 74 75 76

77

Xiaodong Yang, ‘Jus Cogens and State Immunity’ (2006) 3 New Zealand Yearbook of International Law 131; Nehal Bhuta, ‘Justice Without Borders: Prosecuting General Pinochet’ (1999) 23 Melbourne University Law Review 499, 523. Pinochet (No 3), 594. Pinochet (No 3), 637, 642. Pinochet (No 3), 594. Burgers and Danelius (n. 57), 131. Pinochet (No 3), 660. Pinochet (No 3), 660. This is similar to the position taken by Judges Higgins, Kooijmans and Buergenthal in Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [78]: ‘The only credible alternative therefore seems to be the possibility of starting proceedings in a foreign court after the suspected person ceases to hold the office.’ Torture Convention, Article 1(1).

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In conclusion, the Torture Convention lays down the procedural tools to effectively enforce the substantive prohibition of torture.78 For instance, the obligations contained in the Convention led to Section 134 of the Criminal Justice Act 1988, which makes official acts of torture an extraterritorial offence within the United Kingdom’s jurisdiction.79 Thus, exercising extraterritorial jurisdiction over crimes of torture under the Torture Convention necessarily trumps the principle that one State should not interfere over the exclusive matters of another, because States have reached the conclusion that the crime of torture should be prosecuted in this manner.80 3.2 The Geneva Conventions The same logic applies to the prosecution of war crimes under the four Geneva Conventions. Article 49 of the First Geneva Convention provides that States shall enact effective legislation to criminalise ‘grave breaches’ under the Convention.81 It further imposes an obligation to either prosecute or extradite any individual alleged of having committed a grave breach.82 The travaux préparatoires of the Geneva Conventions show that this obligation is not limited to the parties to an armed conflict.83 Instead, the obligation to vest jurisdiction over war criminals applies to all State parties regardless of their neutrality.84 Therefore, the identical provisions in the Geneva Conventions have the effect of creating the obligation to exercise universal jurisdiction over 78 Pinochet (No 3), 625. 79 Criminal Justice Act 1988, Section 134(1): ‘A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.’ (emphasis added). 80 Pinochet (No 3), 661; Cryer, Robinson and Vasiliev (n. 47), 514: ‘the State cannot complain that its sovereignty is being restricted, when the prohibited conduct is recognised by all as an international crime.’ 81 An identical provision is found in the four Geneva Conventions. See: First Geneva Convention, Article 49; Second Geneva Convention, Article 50; Third Geneva Convention, Article 129; Fourth Geneva Convention, Article 146. 82 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (signed 12 December 1977, entered into force 7 December 1978) 1125 UNTS 3, Articles 85–86, 88. Article 85(1) of Additional Protocol I states that the grave breaches regime shall equally apply to the repression of grave breaches under the Protocol. 83 Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims, Final Record of the Diplomatic Conference of Geneva of 1949 (1963) Volume 2 Section B, 166. 84 Ibid.: ‘The President was of the opinion that a neutral State did not violate its neutrality by trying or handing over an accused, under an international obligation.’

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grave breaches.85 The fact that these provisions contain the obligation to enact universal jurisdiction was acknowledged by Judges Bula-Bula86 and Van den Wyngaert87 in Arrest Warrant. Regarding other violations of the Geneva Conventions that do not constitute grave breaches, States will not be under such an obligation, but still possess the right to exercise extraterritorial jurisdiction.88 According to Rule 157 of the ICRC’s Study on Customary International Humanitarian Law, States have the right to universal jurisdiction in their domestic courts over war crimes, for both international and non-international armed conflicts.89 Numerous examples of State practice, in the form of national legislation and case law, were cited in the Study in support of this claim.90 In the case of Schwammberger before the Argentinian Supreme Court, the Attorney General took the view that: ‘Neither time, nor borders, nor the laws of any given country shall prevent the just advance of punitive law.’91 This speaks of the intention of the international community from preventing any safe haven for those responsible for international crimes. Furthermore, in Sokolović, the Higher Regional Court in Düsseldorf based its jurisdiction over grave breaches committed in the former Yugoslavia on the relevant provisions of the Geneva Conventions.92 In upholding the decision, the German Federal Court of Justice rejected the idea that Germany was unduly infringing upon the sovereignty of another State in accepting jurisdiction. It stated: When the Federal Republic of Germany, acting on the legal obligation arising from a binding international treaty agreed between states, prosecutes under German law the acts of a foreigner on foreigners committed 85 Roger O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (2009) 7 Journal of International Criminal Justice 811; Cryer, Robinson and Vasiliev (n. 47), 74–75. 86 Arrest Warrant, Separate Opinion of ad hoc Judge Bula-Bula, [65]. 87 Arrest Warrant, Dissenting Opinion of Judge Van den Wyngaert, [59]: ‘The 1949 Conventions are probably the first to lay down [the principle of aut dedere aut judicare] in an article that is meant to cover both jurisdiction and prosecution.’ 88 Theodore Meron, ‘Is International Law Moving Towards Criminalization?’ (1998) 9 European Journal of International Law 18, 23. 89 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law: Volume I, Rules (Cambridge University Press 2009), Rule 157. 90 See for instance, Polyukhovich v. The Commonwealth, [1991] FC 91/026, [33]: ‘[I]nternational law recognizes a State to have universal jurisdiction to try suspected war criminals whether or not that State is under an obligation to do so’. See also, Henckaerts and Doswald-Beck (n. 89), 604–607. 91 Fallo Schwammberger, Corte Suprema de Justicia de la Nación, Argentina, [1990] Opinion of the Attorney General, [V]. 92 Prosecutor v Sokolović, [1999] Oberlandesgericht Düsseldorf, Germany.

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on territory abroad, can it hardly be said to be an infringement on the principle of non-interference.93 The view of the Federal Court of Justice shows how, by exercising extraterritorial jurisdiction over war crimes, States are complying with international law rather than violating it. Prosecution in the case of Sokolović was made possible under Section 6(9) of the German Criminal Code, which States that German criminal law shall apply to offences which, based on an international agreement which is binding on Germany, are to be prosecuted even though they are committed abroad.94 The criminal prosecution of individuals, as expressly sanctioned by the Conventions, does not ‘damage the principle of state sovereignty on which relations between nations are based.’95 It would be contradictory for States to reach the agreement that other States should expand their sovereign rights beyond their borders and simultaneously claim their sovereignty is being infringed.96 3.3 The Genocide Convention With respect to the crime of genocide, Article IV of the Genocide Conventions provides that any person guilty of committing genocide shall be punished ‘whether they are constitutionally responsible rulers, public officials or private individuals.’97 The Convention only makes express reference to territorial jurisdiction for a domestic court, granting the power to prosecute persons alleged to have committed genocide to ‘a competent tribunal of the State in the territory of which the act was committed.’98 Article VI, as evidenced by the preparatory works of the Convention, does not vest national courts of signatory States with universal jurisdiction over the crime of genocide.99 However, there is nothing to suggest that the Drafters intended to limit the scope of the immunity provision in Article IV to only be applicable in front of the domestic court where genocide took place.100 Furthermore, while under the Convention 93 94 95 96 97 98 99

Prosecutor v Sokolović, [2001] 3 StR 372/00, Bundesgerichtshof, Germany, 20. Strafgesetzbuch – StGB (German Criminal Code), Section 6(9) (emphasis added). Bouzari v Islamic Republic of Iran [2004] OJ No 2800, [93]. Pinochet (No 3), 642–643. Genocide Convention, Article IV. Genocide Convention, Article VI. Report of the Ad Hoc Committee on Genocide (n. 52), 33; William Schabas, Introductory Note, Convention on the Prevention and Punishment of the Crime of Genocide, 2; Paola Gaeta, The UN Genocide Convention: A Commentary (Oxford University Press 2009), Part IV Chapter 11. 100 Guénaël Mettraux, John Dugard and Max du Plessis, ‘Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa’ (2018) 18 International Criminal Law Review 577, 593 footnote 52.

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only territorial jurisdiction is provided for, it does not limit the possibility to go beyond the terms of the Convention.101 The ICJ stated in the Bosnian Genocide case that the obligation to prevent and punish genocide was not ‘territorially limited by the Convention.’102 More importantly, the Court further stated that while Article VI imposes an obligation to institute territorial criminal jurisdiction, it does not prohibit States from ‘conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law’.103 This view is also supported by State practice. In Eichmann, the District Court of Jerusalem viewed Article VI as requiring territorial jurisdiction as a ‘compulsory minimum.’104 In their view, there was nothing that could lead to the assumption that universal jurisdiction could not be applied with respect to genocide.105 The Higher Regional Court of Düsseldorf similarly declared in the case of Jorgić, that: ‘According to current international opinion, this provision does not contain a prohibition of the principle of universal jurisdiction for genocide.’106 As a result, many States have decided to enact provisions authorising extraterritorial jurisdiction over international crimes, including genocide, in their domestic legislation.107 For instance, under the International Crimes and International Criminal Court Act 2000, New Zealand asserts their jurisdiction over genocide regardless of: (i) the nationality of the accused, (ii) whether or not the conduct took place in New Zealand and (iii) whether or not the suspect was present in New Zealand at the time the conduct occurred or at the time they were charged with the offence.108 Similarly, the scope of the German International Crimes Code is defined as covering any of the provided crimes

101 Henckaerts and Doswald-Beck (n. 89), 605. 102 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections [1996] ICJ Reports 595, [31]. 103 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] ICJ Reports 43, [442]. 104 Attorney General v Eichmann [1961] Criminal Case No 40/61, District Court of Jerusalem, Israel, [25]. 105 Ibid: ‘It is clear that the reference in Article 6 to territorial jurisdiction is not exhaustive, and every sovereign state may exercise its existing powers within the limits of customary international law, and there is nothing in the adherence of a state to the Convention to waive powers which are not mentioned in Article 6.’ 106 Prosecutor v Jorgić, [1997] 2 StE 8/96, Oberlandesgericht Düsseldorf, Germany, 154. 107 Reydams (n. 46); Akande and Shah (n. 4), 847; Crimes Against Humanity and War Crimes Act 2000 (Canada), Section 6(1)(a), 8(b); International Crimes Act 2003 (Netherlands), Section 2. 108 International Crimes and International Criminal Court Act 2000 (New Zealand), Section 8(1)(c).

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under international law, even if the offence was committed abroad without any relation to the domestic territory.109 The previous analysis of the jurisdictional provisions of the Torture Conven­ tion, Geneva Conventions and Genocide Convention confirms the notion that international law promotes a role for domestic courts in the effective prosecution of international crimes. These treaties were agreed to in order to impose an obligation on all States to prosecute acts of torture, war crime and genocide irrespective of where they were committed, because these are not matters that should be left with the exclusive jurisdiction of the territorial State. These agreements must necessarily dismiss any claim that immunity should be exceptionally granted to preclude the exercise of extraterritorial jurisdiction to protect the sovereign interests of that State. 4

The Principle of Individual Criminal Responsibility

Having found that the exercise of jurisdiction under international crimes conventions excludes the application of the first justification for functional immunity, this article turns to the second reason, namely that official acts are acts of the State alone and only the State incurs responsibility over them. However, the validity of the act of State theory is no longer relevant for the commission of international crimes, because of the newer principle that establishes individual criminal responsibility over them.110 The principle expressly provides that neither the official position of a State official, nor the fact that they were acting in an official capacity, shall relieve them from individual responsibility over an international crime.111 This is because State organs will often be involved in the commission of international crimes,112 and their officials will generally use and abuse their official position 109 Völkerstrafgesetzbuch – VStGB (Germany), Section 1. 110 ILC, ‘Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’, Yearbook of the International Law Commission, (1950) Vol II, 374, Principle I: ‘Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.’ 111 Rome Statute, Article 27(2); Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002) (1993), Article 7(2); Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) (1994), Article 6(2); Statute of the Special Court for Sierra Leone (2002), Article 6(2); Law No 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office (2015), Article 16(1)(b). 112 Gerhard Werle and Boris Burghardt, Principles of International Criminal Law (3rd edn, Oxford University Press 2014), 84: ‘Crimes under international law are typically crimes that occur on a large scale and systematic manner with the participation of state organs.’;

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in order to commit, instigate and/or order the crimes.113 For these reasons, the IMT held that ‘only by punishing the individuals who commit [international] crimes can the provision of international law be enforced.’114 The nature of the Nuremberg Charter was such that it imposed obligations on the individuals directly, regardless of the fact that they were acting in an official capacity.115 In fact, Article 6 of the Nuremberg Charter provided that to fall under the personal jurisdiction of the IMT an individual must have committed international crimes while ‘acting in the interests of the European Axis powers.’116 Therefore, as Schabbas points out, the position declared by the IMT that international crimes are ‘committed by men’,117 was only true to the extent that those men were acting on behalf of a State.118 The Tribunal was prepared to personally hold those responsible accountable in spite of their connections to the State. 4.1 Origins and Development of Individual Criminal Responsibility Before Nuremberg, there was limited to no international liability for individuals who committed international crimes in an official capacity.119 The Treaty of Versailles indicted Wilhelm II ‘for a supreme offence against international

113 114 115

116 117 118 119

ILC, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, Commentary to Article 5 in Yearbook of the International Law Commission (1996), Vol II Part Two. ICTY, Prosecutor v Karadžić, Mladić and Stanišić, Decision on the Bosnian Serb Leadership Deferral Proposal [1995] IT-95-5-D, [24]: ‘It is that position of authority which would have enabled the suspects to plan, instigate or order the crimes’; Cassese (n. 4), 867. The Trial of the Major War Criminals (n. 14), 223. The Trial of the Major War Criminals (n. 14), 223: ‘[T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.’ As early as 1928 the PCIJ had already concluded that international law could create enforceable ‘individual rights and obligations’ (emphasis added), Jurisdiction of the Courts of Danzig [1928] PCIJ Rep Series B No 15, 17–18; Hersch Lauterpacht, ‘The Subjects of the Law of Nations’ (1947) 63 Law Quarterly Review 438. Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945 (“Nuremberg Charter”), Article 6. In reference to the oft-cited passage by the IMT that: ‘Crimes against international law are committed by men, not by abstract entities’ in The Trial of the Major War Criminals (n. 14), 223. William Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98 Journal of Criminal Law and Criminology 953. United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (His Majesty’s Stationery Office 1948), 262–263.

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morality and the sanctity of treaties’120 after the conclusion of World War I, but the German Emperor was never formally tried for his role in the conflict. A majority of the Commission on the Responsibility of the Authors for the War had expressed that ‘[a]ll persons […], however high their position may have been, without distinction of rank, including chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution’.121 However, there were also strong dissenters within the Commission, particularly the United States delegation which stated that: ‘however iniquitous and infamous, and however terrible in their results, [actions of State officials] were beyond the reach of judicial procedure, and subject only to moral sanctions’.122 Therefore, despite the first ideas about the individualisation of responsibility, the notion that certain acts were criminal under international law was still being limited to be mere moral considerations. According to the UN War Crimes Commission, the only way to revert this was to recognise that those individuals upon who the commission of international crimes rested on, ‘were to be held penally responsible.’123 Already in 1943, prior to the conclusion of World War II, the Allied Powers had formulated their intentions to hold ‘major war criminals’ to account for their offences.124 In the preparatory steps towards the prosecution of these criminals, the War Crimes Commission established the principle that State officials could not hide under the cloak of immunity.125 These steps concluded with the inclusion of the principle of individual criminal responsibility in Article 7 of the Nuremberg Charter. According to this provision, acting on behalf of a State was deemed to be inoperative as a ground for excluding the criminal responsibility of the individual concerned for any of the crimes under the Charter.126 According to Chief Justice Robert Jackson, it would have been contradictory to declare that ‘the legal responsibility was

120 121 122 123 124

Treaty and Protocol signed at Versailles June 28 1919, Article 227. History of the UN War Crimes Commission (n. 119), 264. History of the UN War Crimes Commission (n. 119), 264. History of the UN War Crimes Commission (n. 119), 262. Declaration on German Atrocities, Moscow Conference of Foreign Secretaries signed 1 November 1943. 125 For a complete analysis of the work of the different international bodies preceding the establishment of the Nuremberg Charter. See History of the UN War Crimes Commission (n. 119), 265–267. 126 Nuremberg Charter, Article 7; History of the UN War Crimes Commission (n. 119), 271; Mettraux, Dugard and du Plessis (n. 100), 587–588.

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the least where power was the greatest.’127 Thus, in order to effectively enforce the prohibition of international crimes, it was a prerequisite that the principles of immunity serving as a jurisdictional bar be rejected. Otherwise, to only attribute such serious conduct to the impersonal State would have been ‘an offensive to the common notions of justice.’128 The same logic was explained by the judges IMT following the trial of the major German war criminals. The Tribunal declared that the rules of immunity which in certain cases shields officials of the State are inapplicable to conduct which is ‘condemned as criminal by international law.’129 This is because the entire purpose of international criminal law is to impose obligations and create responsibility on the individual.130 Granting immunity would be contradictory to and defeat this purpose.131 Thus, the IMT remarkably established the irrelevance of the general immunity principles to the entire range of international crimes.132 It is important to note that the principle of individual criminal responsibility was not restricted only to the jurisdiction of the IMT. As part of Control Council Law No. 10, it was included into the legal framework that was established for the prosecution of other war criminals under national procedures.133 These national proceedings were equally to be held on the assumption that State officials do not enjoy immunity for international crimes.134 Some commentators point towards this as evidence that the inapplicability of immunities as a jurisdictional bar was never intended to be limited only to international tribunals.135

127 ‘Report to the President by Mr Justice Jackson’ in Report of Robert H Jackson, United States Representative to the International Conference on Military Trials (1945), 47. He added: ‘Nor should such a defense be recognized as the obsolete doctrine that a head of state is immune from legal liability … We stand on the principle of responsible government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still “under God and the law.’ 128 Sir Arthur Watts (n. 1920), 82. 129 Trial of the Major War Criminals (n. 14), 223. 130 Ibid.; Watts (n. 19), 82: ‘While generally international law […] does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute […] international crimes.’ 131 Attorney General v Eichmann (n. 20), 310: ‘[A] person who was a party to such a crime must bear individual criminal responsibility for his conduct. Otherwise, the penal provisions of international law would be frustrated.’ 132 History of the UN War Crimes Commission (n. 119), 273. 133 History of the UN War Crimes Commission (n. 119), 271. 134 Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, Article 4(a). 135 Mettraux, Dugard and du Plessis (n. 100), 589.

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Crystallisation into Customary Law and Application in Domestic Proceedings The principles of individual criminal responsibility and of irrelevance of official capacity for the establishment of such responsibility have, since, gained widespread recognition and are a part of international law.136 The UN General Assembly unanimously adopted Resolution 95(1) through which it affirmed the principles of international law created by the Charter and Judgement of the IMT.137 Principle III, as was formulated by the International Law Commission (“ILC”), affirms the denial of immunity for international crimes for persons acting as a Head of State or responsible government official.138 According to Cassese, this unanimous support shows the intention of States to begin the process which has now led to these principles becoming part of customary international law.139 The individual criminal responsibility of State officials was restated by the ILC in the 1954 Draft Code of Offences against the Peace and Security of Mankind140 and the 1996 Draft Code of Crimes against the Peace and Security of Mankind.141 The latter is of special relevance, given that Article 8 further provides for the exercise of extraterritorial jurisdiction of national courts over international crimes ‘irrespective of where or by whom those crimes were committed.’142 The ILC continuously tackles the question of functional immunity for international crimes. In a recent report, one Special Rapporteur found ‘a clear trend towards considering the commission of international crimes as a bar to the application of the immunity of State officials from foreign criminal jurisdiction.’143 Within that report, Special Rapporteur Escobar Hernández proposed the adoption of ‘Draft Article 7’, which codifies the exclusion of functional immunity from jurisdiction for: (i) genocide;

4.2

136 Van Alebeek (n. 6), 209, who argues that whatever criticism the establishment of individual criminal responsibility by the IMT may have had at the time, it is now a firmly established principle. 137 UN General Assembly, Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal (“Nuremberg Principles”) (1946) A/RES/95. The General Assembly directed the ILC to formulate and codify these principles as a matter of primary importance. 138 Nuremberg Principles, Principle III. 139 Antonio Cassese, Introductory Note, Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal, Resolution 95(1). 140 ILC, Draft Code of Offences against the Peace and Security of Mankind, Article 3 in Yearbook of the International Law Commission (1954) Vol II. 141 ILC, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, Article 7 in Yearbook of the International Law Commission (1996) Vol II Part Two, 26. 142 Ibid. Article 8. 143 ILC, Fifth report on immunity of State officials from foreign criminal jurisdiction by Concepción Escobar Hernández, Special Rapporteur (2016) A/CN.4/701, [179].

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(ii) crimes against humanity; (iii) war crimes; (iv) crime of apartheid; (v) torture; and (vi) enforced disappearance.144 The adoption of Draft Article 7 by the ILC was more contentious,145 but ultimately a vote in favour of the irrelevance of functional immunity for international crimes was reached.146 The ILC could only reach this conclusion because there is ample State practice and different jurisprudences endorsing the idea that these principles form a part of custom. The Israeli Supreme Court took the view in Eichmann that the law encapsulated in Principle III was ‘part and parcel of the law of nations, and must be seen as having been rooted in it in the past.’147 Thus, the Supreme Court rejected the artificial distinction between the State and those acting as its representatives for this purpose.148 When dealing with responsibility over the commission of international crimes, acting in an official capacity is irrelevant, because the individual is personally bound by international law.149 The ICTY resonated this view in Furundžija and declared that the provision of Article 7(2) of the ICTY Statute was ‘indisputably declaratory of customary international law.’150 This ‘indisputable character’ was restated by the ICTY on two further occasions.151 In Karadžić, the Tribunal specified that in these cases the official position cannot relieve the individuals of responsibility, since it is this position itself which allowed them to plan, instigate or order the crimes for which they are being accused of.152 The fact that individuals are criminally responsible for international crimes regardless of their official position was relied upon by a majority of the judges in the case of Pinochet (No 3). For Lord Hope, the alleged acts of torture were not incidental but were instead committed as part of a policy to commit systematic torture as an instrument of the State.153 Therefore, it constituted 144 Ibid. Annex III. 145 Aziz Epik, ‘No Functional Immunity for Crimes under International Law Before Foreign Domestic Courts’ (2021) 19 Journal of International Criminal Justice 1263, 1266–1267. 146 Report of the International Law Commission on the sixty-ninth session (2017) UN Doc A/72/10, [74]; Dire Tladi, ‘The International Law Commission’s Recent Work on Exceptions to Immunity: Charting the Course for a Brave New World in International Law?’ (2019) 32 Leiden Journal of International Law 169, 171. 147 Attorney General v Eichmann (n. 20), 311. 148 Attorney General v Eichmann (n. 20), 311; Lauterpacht (n. 115), 442–443. 149 Attorney General v Eichmann (n. 20), 311. 150 ICTY, Prosecutor v Furundžija [1998] IT-95-17/1-T, [140]. See in general, [134–142]. 151 ICTY, Prosecutor v Milošević, Decision on Preliminary Motions [2001] IT-02-54, [28]: ‘There is absolutely no basis for challenging the validity of Article 7(2), which at this time reflects a rule of customary international law’. See [26–34]; ICTY, Prosecutor v Karadžić, Mladić and Stanišić, [24]. 152 Prosecutor v Karadžić, Mladić and Stanišić, [24]. 153 Pinochet (No 3), 625–626.

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conduct which, alongside war crimes, genocide and crimes against humanity, had been ‘separated out from the generality of conduct which customary international law has come to regard as criminal.’154 Because they are international crimes, those responsible are to be held individually criminally responsible. Thus, he considered the principle to be applicable in domestic proceedings if it is accepted that national courts can exercise jurisdiction over the crime.155 Basing the jurisdiction on the provisions of the Torture Convention he stressed that: ‘once the machinery which it provides was put in place to enable jurisdiction over such crimes to be exercised in the courts of a foreign state’, functional immunity was no longer available as a bar to that jurisdiction.156 Lord Hope concluded that the obligations on the part of the individual in the case of international crimes are consolidated to the point where they override functional immunity from the available jurisdiction.157 All of these steps culminated in a landmark decision by the Federal Court of Justice of Germany in January 2021, which dealt with war crimes alleged to have been committed by a former member of the Afghan National Army.158 The Court entertained, to the surprise of the parties, the question of whether the lieutenant enjoyed functional immunity because he acted as an agent of the Afghan State.159 The Federal Court of Justice unequivocally found that under customary international law, the criminal prosecution of (at least lower-ranking) State officials is permissible, even if functional immunity is assumed.160 In order to arrive to this definitive conclusion the Federal Court reviewed the jurisprudence and principles arising from the IMT,161 the case-law of the ICTY and ICTR,162 foreign domestic prosecutions such as 154 Pinochet (No 3), 622. 155 Pinochet (No 3), 622. See also Lord Millet views the principle of international criminal responsibility to be applicable in front of domestic courts at 647: ‘it was no longer possible to deny that individuals could be held criminally responsible for war crimes and crimes against peace and were not protected by state immunity from the jurisdiction of national courts.’ See also Van Alebeek (n. 6), 231. 156 Pinochet (No 3), 626. 157 Pinochet (No 3), 626. 158 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19 in Neue Juristische Wochenschrift (2021), 1326–1334. 159 Christoph Barthe and Peter Frank, ‘Immunity of Foreign State Officials before National Courts: A Stress Test for Modern International Criminal Law?’ (2021) 19 Journal of International Criminal Justice 697, 698. 160 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19, [23]. 161 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19, [24]; Epik (n. 145), 1271; Barthe and Frank (n. 159), 704–705. 162 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19, [25]; Epik (n. 145), 1272; Barthe and Frank (n. 159), 702.

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Eichmmann and Pinochet,163 and the work of the ILC.164 Through this judgment, the Federal Court of Justice has sent an authoritative message that continues to confirm the trend excluding the application of functional immunity in cases of international crimes. The Effect of Individual Criminal Responsibility on State Responsibility The previous review shows that the non-applicability of functional immunity results from the individualisation of responsibility for international crimes under international law. This rationale is discernibly different from previous attempts to deny a claim of functional immunity by rejecting the notion that international crimes could ever be committed in an official capacity.165 The idea that international crimes can only be committed in a private capacity is by now considered no more than a legal fiction.166 By definition some international crimes can only be committed in an official capacity.167 Denying the official nature would also result in the State not incurring any responsibility over the internationally wrongful act.168 Instead, functional immunity is rendered inapplicable because international criminal law has developed to the point where responsibility can be attributed directly on the individual without influencing the responsibility of the State. The Rome Statute emphasises that none of its provisions relating to individual criminal responsibility under Article 25

4.3

163 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19, [26–34]; Epik (n. 145), 1272–1273; Barthe and Frank (n. 159), 705–706, 708–716. 164 Bundesgerichtshof (Federal Court of Justice) [2021] 3 StR 564/19, [35]; Epik (n. 145), 1274–1275; Barthe and Frank (n. 159), 718–723. 165 See e.g., Alexander Orakhelashvili, ‘State Immunity and International Public Order’ (2002) 45 German Yearbook of International Law 227, 239; Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet case’ (1999) 10 European Journal of International Law 237, 265. 166 Arrest Warrant, Dissenting Opinion of Judge Van den Wyngaert, [36], Dissenting Opinion of Judge Al-Khasawneh, [6]. See also Fox (n. 5), 688, Cassesse (n 4) calls it ‘ambiguous and indeed untenable’. Gattini refers to it as ‘an argument which can be easily discarded’ in Andrea Gattini, ‘War Crimes and State Immunity in the Ferrini Decision’ (2005) 3 Journal of International Criminal Justice 224, 234; Craig Barker, ‘The Future of Former Head of State Immunity after Ex Parte Pinochet’ (1999) 48 International and Comparative Law Quarterly 937, 943. 167 See n. 77. See also Rome Statute, Article 8 bis: ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression’ (emphasis added). 168 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) (2001), Article 3, 4.1, 7. See also Point (13) in the Commentary to Article 4; Point (2) in the Commentary to Article 7.

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‘shall affect the responsibility of States under international law.’169 The Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) make clear that they are without prejudice to any question of individual responsibility under international law of any person acting on behalf of a State.170 In the Commentary the ILC specifies that when it comes to the commission of international crimes ‘the question of individual responsibility is in principle distinct from the question of State responsibility.’171 Neither the State is exempted from its own responsibility for internationally wrongful conduct carried out by State officials, nor can those officials hide behind functional immunity for their own conduct which is contrary to rules of international law which are applicable to them personally.172 Under international law, alongside the responsibility of the State, the perpetrators of international crimes bear individual criminal responsibility at the same time,173 and ‘functional immunity ends where individual responsibility begins.’174 5

Conclusion

This article has explored the applicability of functional immunity of foreign State officials for international crimes before national courts. By exploring the relationship between immunity and jurisdiction, it revealed the nature of immunity as an exception to jurisdiction, and thus dependent on the type of jurisdiction that is being asserted and whether the two reasons to grant immunity apply under that specific jurisdiction.175 As a first ground, functional immunity precludes the jurisdiction of a domestic court in cases where a foreign State official is a party, because prosecuting official acts in another State would violate the sovereignty and equality of States.176 However, this reason is inapplicable in cases where the prosecution of international crimes under extraterritorial jurisdiction is required by an international obligation. The 169 170 171 172 173

Rome Statute, Article 25(4). ARSIWA, Article 58. ARSIWA, Point (3) to the Commentary to Article 58. Ibid. Streletz, Kessler and Krenz, Grand Chamber [2001] (Applications nos 34044/96, 35532/97 and 44801/98), [104]. 174 Van Alebeek (n. 6), 241. 175 Arrest Warrant, Separate Opinion of Judge Rezek, [2]: ‘No immunity is absolute, in any legal order. An immunity must necessarily exist within a particular context, and no subject of law can enjoy immunity in the abstract. Thus, an immunity might be available before one national court but not before another.’ 176 Jurisdictional Immunities of the State, [57]; Attorney General v Eichmann (n. 20), 309.

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sovereignty of the territorial State is not affected because, by agreeing to the exercise of extraterritorial jurisdiction in different treaties, States have unambiguously decided to expand their sovereign rights over actions taking place outside their territory.177 The exercise of extraterritorial jurisdiction should not be perceived as an infringement on sovereignty, but rather as the transformation of it for the purposes of international cooperation. After all, an assertion of jurisdiction is an assertion of sovereignty.178 As a second ground, functional immunity is granted in order to shield State officials from punishment for acts which the State alone is the responsible entity under international law.179 However, this logic no longer applies to the commission of international crimes, because international law creates personal obligations which make the perpetrator individually criminally responsible, while affirming the parallel validity of the rules of State responsibility.180 Overall, it is the combination of the substantive principle of individual criminal responsibility and the procedural provisions establishing extraterritorial jurisdiction that together displace functional immunity during domestic proceedings. At the moment in which extraterritorial jurisdiction for international crimes is established, the official position of the individual becomes irrelevant for the purposes of assessing his or her responsibility. Under any other type of jurisdiction, State officials would be shielded by the rules of immunity. However, the nature of extraterritorial criminal jurisdiction is such that it would be contradictory to simultaneously allow a successful plea of functional immunity. As soon as extraterritorial jurisdiction for international crimes is established, the principle of individual criminal responsibility applies, and a plea of functional immunity cannot be successful.181 177 Pinochet (No 3), 661; Prosecutor v Sokolović [2001] 3 StR 372/00, 20; Bouzari v Islamic Republic of Iran [2004] OJ No 2800, [93]. 178 Robert Cryer, ‘International Criminal Law Vs State Sovereignty: Another Round?’ (2005) 16 European Journal of International Law 979, 987. 179 Prosecutor v Blaškić (n. 21), [38]; Attorney General v Eichmann (n. 20), 309. 180 Nuremberg Principles, Principle III; Rome Statute, Article 25(4), 27(2). 181 Pinochet (No. 3), 660.

6

Closing the Preliminary Examination in Colombia Should Not Mean Closing the Eyes

Why the Jurisdicción Especial para la Paz Still Faces Challenges in Interpreting ‘Command Responsibility’ in Accordance with the Rome Statute Jana Kreulach Abstract With the closing of the preliminary examination in Colombia by the new Prosecutor of the International Criminal Court (ICC) on 28 October 2021, it was concluded that the complementary principle in Colombia is working. This article shows why the international justice system should not turn its back on the still-progressing work of the Jurisdicción Especial para la Paz (JEP) as the challenges it has been facing for several years in applying a legal standard in consistency with the Rome Statute have not been dissolved by the formal closure of the preliminary examination. This is exemplified by an assessment of the scope of command responsibility applicable to proceedings before the JEP. As the JEP has not yet issued a final judgment on the criminal responsibility of commanders of the FARC-EP or the Colombian armed forces, whether the complementarity principle is indeed working in Colombia is assessed in light of the Colombian legislators’ approach to criminalise command responsibility. By doing so, this article identifies the failure to recognise the JEP as an internationalised hybrid tribunal and the tribunal’s consequent dependence on the jurisprudence of the Colombian Constitutional Court as the main obstacle for applying the rationale of the Rome Statute. It is further argued that the failure to await how the JEP applies its complex legal basis in a final judgment renders the closing of the preliminary examination premature. The Office of the Prosecutor should therefore continue to observe the situation closely and consider the reopening the preliminary examination.

Keywords command responsibility – Jurisdicción Especial para la Paz – preliminary examination – complementarity principle – Colombia

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_007

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Problem Outline

On 28 October 2021, almost five years after the signing of the ‘Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace’ (Peace Agreement)1 between the Colombian government and the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP),2 the recently elected Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan, closed the preliminary examination in the situation of Colombia. The Prosecutor based this decision on the perception that the principle of ‘complementarity is working today in Colombia,’3 as the country has shown progress in achieving justice and has been shown to be neither inactive, unwilling, nor unable to genuinely investigate and prosecute crimes under the Rome Statute.4 In coming to this conclusion, the Prosecutor states that the ‘assessment of complementarity should not, and cannot be postponed indefinitely pending the completion of all possible domestic proceedings’.5 The ‘Cooperation Agreement Between the Office of the Prosecutor of the ICC and the Government of Colombia’ (Cooperation Agreement) even assumes that the closing of the preliminary examination in Colombia will safeguard and enhance the progress made by the judicial authorities in achieving accountability.6 In contrast, it is argued here that the challenges faced by the Colombian judicial system in applying a legal standard comparable to the ICC have not disappeared following the formal closure of the preliminary investigation. Taking the example of the command responsibility standard applied by the Jurisdicción Especial para la Paz (JEP), it will be shown that these challenges are inherent to the legal nature of the JEP and the link

1 Colombian Government and FARC-EP, Acuerdo Final para la Terminación del Conflicto de una Paz Estable y Duradera, 24 November 2016 (Peace Agreement). 2 Office of the Prosecutor, Report on Preliminary Examination activities (2017) [125]. It is the second version of the Peace Agreement after 50.2% of the Colombian voters had voted against the first version from 24 August 2016 in a national referendum held on 2 October 2016, see Norberto Hernández Jiménez, ‘El “nuevo” acuerdo final para la paz a través del lente del derecho penal’ [2017], 88 Nuevo Foro Penal 217, 218. 3 ICC Press Release, ‘Mr Karim A. A. Khan QC, concludes the preliminary examination of the Situation in Colombia with a Cooperation Agreement with the Government charting the next stage in support of domestic efforts to advance transitional justice’ (2021) accessed 20 June 2022. 4 Ibid. 5 Ibid. 6 Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and The Government of Colombia, 28 October 2021, 2.

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between the Colombian transitional justice system and the ordinary justice system in Colombia. The JEP is the judicial component of the ‘Integrated System for Truth, Justice, Reparation and Non-Repetition’ (Integrated System)7 established by the revised version of the Peace Agreement signed by the Colombian government and the FARC-EP on 24 November 2016. By setting up this complex system, the Peace Agreement put an end to the hostilities between the two main participants in the Colombian armed conflict.8 The JEP is tasked with exercising jurisdiction over serious crimes directly or indirectly linked to the armed conflict and committed by parties to the Peace Agreement.9 In doing so, the JEP must consider the Peace Agreement and complementing legislation as a legal basis.10 The definition of command responsibility11 under this legislation has raised concerns about its consistency with the definition of command responsibility under the Rome Statute among the former Prosecutor of the ICC, Fatou Bensouda, and various legal scholars.12 These concerns are predominantly based on the argument that the JEP must consider two different 7 8 9

Peace Agreement, 8, 147 (section 5.1.2. [17–18]). Peace Agreement, Preamble, 1. Peace Agreement, 143 (section 5.1.2. [2]); OTP, ‘Report on Preliminary Examination activities’ (2017) [125]. 10 Ley No. 1957, Estatutaria de la Administración de Justicia en la Jurisdicción Especial para la Paz, 6 June 2019 and 2017 Acto Legislativo No. 01, 4 April 2017. Their role for the JEP’s jurisdiction and the scope of command responsibility will be further explained in sections 2 and 3. 11 The expansion of the concept to non-military contexts makes it generally more suitable to use the broader term ‘superior responsibility’, which refers to superiors exercising authority over subordinates in the non-military context as reflected in Art. 28(b) of the Rome Statute, see Gerhard Werle and Florian Jeßberger, Völkerstrafrecht (5th edn, Mohr Siebeck, 2020) 302. However, as will be shown under section 3, for the purpose of this work only the military context is of relevance. Thus, it is more accurate to use the narrower term of ‘command responsibility’. The generic term ‘superior’ is used interchangeably with the word ‘commander’. Under command responsibility, a commander can be held liable for his or her subordinate’s conduct if failing to fulfil his or her duty to react. The scope is defined more detailed under section 3. 12 OTP, ‘Escrito de amicus curiae de la fiscal de la Corte Penal Internacional sobre la Jurisdicción Especial para la Paz’ (2017) [3]; James Stewart, ‘The Role of the ICC in the transitional justice process in Colombia’ (2018) [88]; OTP, ‘Situation in Colombia, Benchmarking Consultation’ (2021) [16]; Héctor Olasolo and Jannluck Canosa Cantor, ‘The Treatment of Superior Responsibility in Colombia: Interpreting the Agreement between the Colombian Government and the FARC’ [2019] Criminal Law Forum 61, 62; Juan Pappier and Juan Carlos Ospina, ‘The “Command Responsibility” Controversy in Colombia: A Follow-Up’ [2019] EJIL:Talk! accessed 20 June 2022.

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definitions of command responsibility: a narrow definition applicable to commanders of the Colombian armed forces and a broader definition for commanders of the FARC-EP.13 In particular, the stringent requirements for the responsibility of commanders of the Colombian military seem to depart from the standard of the Rome Statute.14 Since the JEP has not yet come to a final judgment on the criminal responsibility of either commanders of the FARC-EP or the Colombian armed forces, these arguments are mainly based on the plain wording of the definitions in the Peace Agreement and its complementing legislation. This paper supports the assessment that there is a risk that the JEP applies a different standard of command responsibility than that provided in Article 28(a) of the Rome Statute. However, instead of only focusing on an analysis of the wording of the provisions on command responsibility contained in the JEP’s legal basis, this article goes further by analysing the root causes of the different legal standards on command responsibility. It is argued herein that for an understanding of the challenges the JEP faces in applying a command responsibility standard in line with the ICC jurisprudence, it is indispensable to understand the process by which the JEP was created as well as its link to Colombian law. The wording of the JEP’s legal basis taken alone does not suffice to understand why the JEP is applying a legal standard that departs from the rationale of Article 28(a) of the Rome Statute. To come to this conclusion, one must look carefully at the principle of legality contained in Article 10 of Ley No. 1957, and the jurisprudence of the Colombian Constitutional Court (CCC) on the definitions of command responsibility applicable to FARC-EP superiors and commanders of the Colombian military. In light of the above, the first part of this paper (section 2) focuses on questions surrounding the closing of the preliminary examination. Herein it is dealt with the obligations the complementarity principle places on States Parties regarding the criminalisation of punishable conduct under the Rome Statute in their national legislation. To explain the continuing challenges for the JEP, the second part of the article (section 3) analyses to which degree the definitions in the Peace Agreement and the complementing legislation differ from the Rome Statute standard, and where they might leave some leeway for a Rome Statute friendly interpretation. Based on the conclusions from these previous parts, the third section (section 4) turns to the underlying causes and

13 Peace Agreement, 152, 164 (section 5.1.2. [44, 59]); Olasolo and Canosa Cantor ‘The Treatment of Superior Responsibility in Colombia’ (n 12) 62. 14 OTP, ‘Amicus curiae brief’ (n 12) [3–28]; Stewart (n 12) [88].

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the main challenges for the JEP in complying with Article 28(a), namely its legal nature and its link to Colombian law. 2

The Complementarity Principle at the Preliminary Examination Stage and Its Meaning for an Application of Command Responsibility in Accordance with the Rome Statute

The Colombian situation had been under preliminary examination for more than seventeen years, thereby focusing on crimes against humanity committed since 1 November 2002 and war crimes committed since 1 November 200915 in the context of the non-international armed conflict (NIAC) in Colombia.16 Given the principle of complementarity under Article 17(1)(a)–(c) of the Rome Statute,17 which is at the heart of phase 3 of preliminary examinations,18 it was the former Prosecutor’s approach to make the opening of an investigation dependent on different benchmarks in three areas: national legislative framework, domestic proceedings, and the enforcement of sentences.19 Evidently, the mere assessment of legislation was only one of the factors to be considered. The application of the legislative framework by the JEP and Colombian courts falls within the second benchmark of ‘domestic proceedings’ and had been identified as one of the decisive factors in the decision on the Colombian situation on the part of the Office of the Prosecutor (OTP). For the law on command responsibility, this meant the interpretation and application of the provisions on command responsibility in the Peace Agreement and complementing legislation.20 Thus, according to this approach, not only the legislation, but also legal decisions by the JEP, had to be aligned with the objective of the Rome Statute to prosecute those most responsible for the commission of 15 OTP, ‘Report on Preliminary Examination Activities’ (2019) [84, 90–91]. When ratifying the Rome Statute on 5 August 2002, Colombia made a declaration pursuant to Art. 124, excluding war crimes from the jurisdiction of the ICC for a seven-year period, cf OTP, ‘Situation in Colombia Interim Report’ (2012) [3]. 16 The armed conflict in Colombia between the FARC-EP and the Colombian military is considered a NIAC, by the International Committee of the Red Cross (ICRC), see ICRC, ‘Colombia: Five armed conflicts  – What’s happening?’ [2019] accessed 20 June 2022. 17 Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. 18 OTP, ‘Policy Paper on Preliminary Examinations’ (2013) [82]. 19 OTP, ‘Benchmarking Consultation’ (n 12) [2]. 20 Stewart (n 12) [86]; Kai Ambos and Susann Aboueldahab, ‘Colombia: Time for the ICC Prosecutor to Act?’ [2019] EJIL:Talk! accessed 20 June 2022.

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serious crimes.21 This included the requirement that the JEP’s interpretation of command responsibility did not essentially depart from the jurisprudence of the ICC. The OTP’s new approach was to close the preliminary examination before the JEP had issued a final judgment on the responsibility of either FARC-EP superiors or those of the Colombian army. By making this decision, the OTP distances itself from its previous benchmark approach. Instead, as a safeguard for Colombia’s compliance with the complementarity principle, Article 6 was included in the Cooperation Agreement, allowing the OTP to reopen the preliminary examination if the genuineness of the national proceedings is not ensured. Why this safeguard could become more than just a mere clause in the Cooperation Agreement will be addressed in this paper. To set the closing of the preliminary examination into a context, it is necessary to understand what the complementarity principle implies for Colombia as a state having jurisdiction over the crimes allegedly committed by superiors in the context of the NIAC. In general, pursuant to Article 17(1)(a) of the Rome Statute, a case before the ICC would only be admissible if Colombia had either shown to be inactive, unwilling, or unable to genuinely carry out investigations or prosecution into superiors of the FARC-EP and commanders of the Colombian military. By establishing the Integrated System, the Colombian authorities have taken active steps in this regard. Hence, the assessment must be based on whether departing definitions of superior responsibility can demonstrate Colombia’s inability or unwillingness. So far, no final judgment has been rendered by the JEP, which has only taken up its mandate in 2018.22 Any assessment on the unwillingness or inability of Colombia can therefore only be based on its legislation on command responsibility. The question whether the complementarity principle extends to the duty of States Parties to adopt substantive provisions of the Rome Statute in their national legislation, and if so, to which extent they need to coincide with the Rome Statute’s definitions of crimes and modes of liability, is subject to controversy. At the outset, the Rome Statute does not expressively impose an obligation on States Parties to implement its provisions into domestic law.23 On the basis of a mere textual interpretation of the Rome Statute, one could argue that no such obligation arises for States Parties under the complementarity 21 Stewart (n 12) [29]. 22 Rocío Quintero, ‘Three major challenges the Special Jurisdiction for Peace in Colombia faces’ [2019] Opinio Juris accessed 20 June 2022. 23 Jann K. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ [2003] 1 JICJ 86, 91.

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principle.24 However, taking the purpose of the complementarity principle to leave the primary responsibility to exercise criminal jurisdiction over those responsible for international crimes for States Parties,25 a duty to provide for the possibility to investigate and prosecute such crimes on the domestic level must be viewed as an inseparable component of the principle itself.26 Without the required domestic legislation to do so, the ICC would either always be a court of ‘first instance’27 for these States, or these States would have, in relation to international crimes, the freedom to apply legal standards different to the Rome Statute. The latter would only give the ICC jurisdiction over self-referral cases. Both conclusions would render the complementarity principle irrelevant. Having concluded that Colombia has a duty to incorporate command responsibility into its national legislation, the paper turns to the question to which degree these provisions must mirror Article 28(a) of the Rome Statute. In general, there are different practices in implementing the provisions of the Rome Statute into national legislation.28 Some States, such as the Netherlands29 or Portugal,30 follow the monist approach, according to which the Rome Statute is directly applicable in domestic criminal law. Most States on the other hand must incorporate the provisions into domestic law before they become applicable at the national level (known as the dualist approach). For the latter, academic literature has divided common practices of implementation into two approaches: the ‘minimalist approach’31 and the ‘specific criminalisation approach’.32 While it would exceed the scope of this article to assess the different approaches in detail, the main differences are briefly outlined as well as the approaches’ implication for the law on command responsibility. Under the minimalist approach, Rome Statute provisions are incorporated into pre-existing domestic criminal or military law. This means no separate 24 25 26 27 28

29 30 31 32

Ibid 91, 94. Preamble of the Rome Statute. Kleffner (n 23) 92. Ibid 93. Ibid 95; Sascha Dominik Dov Bachmann and Eda Luke Nwibo, ‘Pull and Push’  – Implementing the Complementarity Principle of the Rome Statute of the ICC within the AU: Opportunities and Challenges’ [2018] 43 Brookly Journal of International Law 456, 502–503. Gerhard van der Schyff and Anne Meuwese, ‘Dutch Constitutional Law in a Globalizing World’ [2013] 9 Utrecht Law Review. Constiuição da Républica Portuguesa 1976, 10 April 1976, Art. 8. Dov Bachmann and Nwibo (n 28) 502–503; in other literature this approach has also been recognized as ‘ordinary crimes approach’, cf Kleffner (n 23) 95. Dov Bachmann and Nwibo (n 28) 502–03.

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offences or modes of liability are established, but domestic criminal law applies to the alleged ‘international offence’.33 States applying the specific criminalisation approach on the other hand have done so through general references to the applicability of the Rome Statute34 or through criminalisation of all substantive provisions in the Rome Statute.35 Both the minimalist and the specific criminalisation approach can satisfy the complementarity standard, as long as they are not aimed at shielding an individual from criminal responsibility, cause an unjustified delay, or cause proceedings to be not conducted independently and impartially.36 However, given the specific nature of international crimes and some modes of liability in the Rome Statute, when implementing Rome Statute provisions into domestic law, one must look closely at the specific crime or mode of liability in question, its origin, requirements and the jurisprudence of the ICC. It has been argued that by incorporating modes of liabilities into national legislation, a greater margin of interpretation is left to States Parties than for the implementation of crimes.37 The assumption is based on the argument that modes of liability can refer to a range of different situations, as they are applicable to all offences.38 While this is certainly true, it is not necessarily a distinguishing factor in comparison to criminal offences, as the latter can equally be linked to different forms of participation with the effect of different degrees of responsibility. Additionally, the specific nature of command responsibility is to be distinguished from other modes of liability. While other modes of liability in the Rome Statute originate from domestic legal systems, command responsibility was developed to limit the commission of international crimes39 and acknowledged through international humanitarian law (IHL) and the jurisprudence of international criminal tribunals.40 Thus, the ordinary 33 34 35 36 37

Ibid 504. Ibid 507. Ibid 508. Rome Statute, Art. 17(2). See Harmen van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’ [2008] 8 International Criminal Law Review 229, 272. 38 Ibid. 39 Werle and Jeßberger (n 11) 302; Robin Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 368; Héctor Olasolo and Jannluck Canosa Cantor, ‘La Responsabilidad del Superior en el Acuerdo de Paz en Colombia a la luz del Derecho Internacional’ [2018] 13 Política Criminal 444, 449; Olasolo and Canosa Cantor (n 12) 63. 40 Guénaël Mettraux, The Law of Command Responsibility (1st edn Oxford University Press, 2009) 8; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and

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crime approach finds its limits here, given that there is no direct equivalent mode of liability on the national level, which makes it more difficult to subsume it under a pre-existing mode of liability under domestic criminal law without risking to essentially depart from its scope. Such an approach then carries the risk that the conduct in question cannot be attributed to the mode of liability. Differences could lead to penalties which do not adequately reflect the gravity of international crimes41 or exclude conduct that would otherwise lead to criminal responsibility before the ICC. In essence, when evaluating domestic legislation in light of the complementarity principle, it is important to maintain the rationale behind the mode of liability, namely, ‘to hold superiors criminally liable for the prohibited conduct of their subordinates for failing to fulfil a duty to prevent or repress the subordinates’ unlawful conduct or submit the matter to the competent authorities.’42 Based on the above, the challenges to apply command responsibility in accordance with this rationale mainly depend on the Colombian criminalisation approach regarding command responsibility. As shown herein, the Colombian approach is two-fold. While the establishment of the Integrated System provides for specific legislation criminalising command responsibility in the context of the armed conflict, this legislation cannot be enforced on its own, but depends on Colombian law and jurisprudence. Which consequences arise for Colombia’s compliance with the complementarity principle and the evaluation of the closing of the preliminary examination will be further explored in the following two sections. 3

Criminalisation of Command Responsibility in the  Peace Legislation

Under the Integrated System, the JEP applies three different laws containing provisions on command responsibility: the Peace Agreement, Ley No. 1957 Relating to the Protection of Victims of International Armed Conflicts (hereinafter: AP I), 75 UNTS 287, Arts. 86(2), 87(3); ICTY, Prosecutor v Mucić et al. (Čelebići) [1998], Trial Chamber Judgment, IT-96-21 (16 November 1998) [333–401] referring to United States v Yamashita, 327 US 1 (Sup. Ct. 1946) (4 February 1946); Prosecutor v Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08 (15 June 2009) [402–501]; Otto Triffterer and Roberta Arnold, Art. 28, in: Ambos and Triffterer, Commentary to the Rome Statute (3rd edn, C.H. Beck, 2016) 1063–75. 41 Bachmann and Nwibo (n 28) 504; Kleffner (n 23) 97. 42 Bemba, PTC (n 40) [405].

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and Acto Legislativo No. 01 (collectively: Peace Legislation). In this regard, it is important to point out that the Peace Agreement is the first treaty under Colombian law that makes a reference to command responsibility43 in paragraphs 44 and 59 of section 5.1.2,44 as command responsibility was originally not explicitly included in Colombian criminal law.45 This is not surprising given the origin of command responsibility in international law, as stated above. However, command responsibility was also not included in national legislation after Colombia ratified the Rome Statute in 2002.46 The Peace Agreement is further complemented by two laws with constitutional status: Ley No. 1957 from 2019 and Acto Legislativo No. 01 from 2017 (Acto Legislativo 01). Article 67 of Ley No. 1957 refers to the liability of commanders of the FARC-EP. The responsibility of commanders of the Colombian armed forces is laid down in Article 68 of Ley No. 1957 and further specified in Article 24 Acto Legislativo 01. These provisions form the legal basis upon which to prosecute commanders within the Integrated System established by the Peace Agreement. As the judicial component of this system, the JEP is responsible for investigating and prosecuting serious crimes47 committed by commanders of the Colombian armed forces and superiors of the FARC-EP.48 The crimes committed by their subordinates must have occurred before 1 December 201649 and be directly or indirectly linked to the NIAC in Colombia.50 According to the former Prosecutor, the main challenge in interpreting the provisions in the Peace Legislation in accordance with the Rome Statute lies in the definitions themselves.51 Legal scholars particularly point to the ‘special treatment’ (tratamiento especial) of the Colombian armed forces, which establishes a narrower definition of command responsibility in comparison to the broader one applicable to superiors of the FARC-EP.52 The differences between the definitions are due to the different legal bases that the JEP must 43 OTP, ‘Report on Preliminary Examination activities’ (2017) [125]. 44 Peace Agreement 152, 164. Prior to this, the only references to command responsibility were in the Colombian operational manuals, which are mere administrative acts leading to disciplinary liability, cf Olasolo and Canosa Cantor (n 12) 64–9. 45 Olasolo/Canosa Cantor [2019] (n 12) 64, 79. 46 By adopting Ley 742/2002, 5 June 2002. 47 OTP (n 43) [125]. 48 Ley No. 1957, Art. 63; Acto Legislativo 01, Art. 5. 49 Acto Legislativo 01, Art. 5. 50 Ley No. 1957, Art. 62; Acto Legislativo 01, Art. 5. 51 Cf OTP, Amicus curiae brief (n 12) [9–28]; Stewart (n 12) [96–98]. 52 Peace Agreement 152, 164 (section 5.1.2. [44, 59]). In the original version of the Peace Agreement, the same scope of command responsibility was applied to commanders of both groups. The changes in the revised version were unilaterally made by the Colombian

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consider when interpreting the provisions of the Peace Legislation: while the responsibility of FARC-EP superiors is mainly based on international law,53 for the criminal responsibility of commanders of the Colombian armed forces primacy is given to Colombian law as a benchmark for interpretation.54 This section assesses whether the specific criminalisation approach under the Integrated System leaves sufficient margin to the JEP to apply the provisions in accordance with the rationale of command responsibility under Article 28(a) of the Rome Statute. As for this rationale, superior responsibility is based on the principle that ‘criminal responsibility for omissions is incurred where there exists a legal obligation to act.’55 It refers to the liability of superiors for the prohibited conduct of their subordinates for failing to fulfil a duty to prevent or repress the subordinates’ unlawful conduct or submit the matter to the competent authorities.56 The superior’s duty to act arises from his or her legal authority over the subordinates.57 In the Rome Statute, a distinction is made between the responsibility of military commanders and persons effectively acting as such under Article 28(a) and the responsibility of civilian superiors under Article 28(b). In the context of the NIAC in Colombia, the applicable standard is Article 28(a) as both commanders of the national armed forces and FARC-EP superiors are considered military commanders or persons effectively acting as such (de-facto military commanders) for the purposes of this provision. To hold military commanders and persons effectively acting as such responsible for the commission of crimes under Article 5 of the Rome Statute by his or her subordinates, four cumulative requirements must be fulfilled under Article 28(a): 1. there must be a superior-subordinate relationship, in which the superior must have effective command and control, or effective authority and control over the subordinates; 2. the superior either knew or should have known that the subordinates committed or were about to commit crimes; 3. the superior failed to take all necessary and reasonable measures within his or her power to either prevent or repress the crimes committed by the subordinates or to submit the matter to competent authorities for investigation and prosecution (report); and 4. the crimes committed by the subordinates must

53 54 55 56 57

government under President Santos, cf Olasolo and Canosa Cantor [2019] (n 12) 62, 95–96; Hernández Jiménez (n 2) 218. Peace Agreement 164 [59]. Acto Legislativo 01, Art. 24. Bemba, PTC (n 40) [405]; ICTY, Prosecutor v Delalić et al., Trial Chamber Judgment, IT-04-83-T (16 November 1998) [334]. Bemba, PTC (n 40) [405]. Mettraux (n 40) 44.

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have resulted from the failure of the superior to properly exercise control over them.58 These criteria form the basis for the assessment of the margin that the definitions leave to the JEP for an interpretation in conformity with the Rome Statute. The responsibility of superiors of the FARC-EP for acts committed by their subordinates is regulated in paragraph 59 of the Peace Agreement and Article 67 of Ley No. 1957. According to these provisions, the assessment of command responsibility is governed by the provisions of IHL, international human rights law and international criminal law.59 The ‘special treatment’60 for the Colombian armed forces on the other hand considers as a legal basis the Código Penal Colombiano (CPC),61 IHL as lex specialis, and the Colombian armed forces operational law in relation to IHL, provided that the last two categories are not contrary to domestic law.62 Pursuant to Article 68 of Ley No. 1957, the applicable scope is specified in Article 24 Acto Legislativo 01.63 Comparing the provisions on command responsibility in the Peace Legis­ lation, three common elements are required to establish the responsibility of superiors of the FARC-EP and the Colombian armed forces: 1. the effective control over the acts of their subordinates; 2. their knowledge based on the information they had before, during and after the commission of the conduct; and 3. the capacity to prevent their subordinates’ conduct and to take corresponding decisions after it occurred. This means, in both cases responsibility cannot solely be based on the hierarchical position of the commander.64 Although the requirements for FARC-EP and military commanders are the same, the claims that the definitions differ from each other are due to the different legal bases to be considered in applying them. How the different legal bases could impact the JEP’s jurisdiction on the criminal responsibility of superiors of the FARC-EP and the Colombian military is further explored in the following sub-sections.

58 Prosecutor v Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, ICC-01/05-01/08 (21 March 2016) [170]. 59 Peace Agreement 164 [59]. 60 Ibid 152 [44]. 61 Colombian Criminal Code. 62 Acto Legislativo 01, Art. 24. 63 Ley No. 1957, Art. 68; Gustavo Emilio Cote Barco, ‘La responsabilidad por el mando en el Acuerdo de Paz firmado por el Gobierno Colombiano y las FARC-EP: un análisis sobre la base del caso Bemba de la Corte Penal Internacional’ [2019] 92 Nuevo Foro Penal 153, 156. 64 Acto Legislativo 01, Art. 24; Ley No. 1957, Art. 67.

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3.1 Definition of Effective Control The understanding of effective control is by now uncontroversial within international criminal law. The ICC and the ad-hoc tribunals define effective control as the ‘material ability’ to prevent, repress or report criminal conduct.65 Effective control must only be exercised over the subordinates, not their specific conduct that led to the offence.66 The wording of Article 67 of Ley No. 1957 requires FARC-EP superiors’ effective control over the acts of their subordinates. The establishment of the superiors’ effective control must be based on international law,67 keeping in mind the ‘actual possibility’ of the superior to exercise control over the own subordinates.68 At a first glance, the requirement that superiors need effective control over the acts of their subordinates seems to require control over the conduct that led to the commission of a crime. However, given the reference to international law and the wording of ‘actual possibility’, sufficient leeway is given to the JEP for an interpretation of ‘effective control’ in accordance with the jurisprudence on Article 28(a) of the Rome Statute. Under the ICC approach, the JEP’s assessment of effective control must focus on the factual or ‘actual’ ability to prevent, repress, or report crimes.69 The legal position of the superior is not determinative.70 Accordingly, not the nature of the role or function – formal or informal – of the individual in a superior position must determine the applicability of the doctrine, but the degree of authority the superior exercises over others.71 The JEP’s assessment of such criterion must be a matter of factual evidence rather than law.72 As evidentiary factors, the JEP can take into account the official position of the commander; the power to issue orders and to send forces to locations of armed conflict; the capacity to ensure compliance with orders; the representation of the forces; and the

65 Prosecutor v Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, ICC-01/ 05-01/08 (8 June 2018) [5]; ICTY, Prosecutor v Mucić et al. (Čelebići), Appeals Chamber Judgment, IT-96-21 (20 February 2001) [256]; ICTR, Prosecutor v Nahimana et al, Appeals Chamber Judgment, ICTR-99-52 (28 November 2007) [323]. 66 Rome Statute, Art. 28(a). 67 Peace Agreement 164 [59]; Ley No. 1957, Art. 67. 68 Ibid. 69 Bemba, TC (n 58) [188–189]; ICTY, Prosecutor v Halilović, Appeals Chamber Judgment, IT-01-48 (16 October 2007) [59]. 70 Ibid. 71 Bemba, TC (n 58) [184]; ICTR, Prosecutor v Bagilishema, Appeals Chamber Judgment, ICTR-95-1 (3 July 2002) [50–52, 55]; Mettraux (n 40) 102. 72 Bemba, TC (n 58) [188].

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representation of the ideology of the movement through public statements and appearances.73 For commanders of the Colombian armed forces, effective control is not assessed in light of international law but based on the criteria in Article 24 Acto Legislativo 01. According to this provision, a commander of the Colombian armed forces has effective control over the conduct of the subordinates if four cumulative elements are fulfilled: 1. the crime was committed within the superior’s area of responsibility; 2. the superior had the legal and material capacity to issue, modify and enforce orders; 3. the superior had the material and direct capacity to take appropriate measures to prevent or repress the crimes; and 4. the superior possessed either actual or updatable knowledge of the commission of the crimes (emphasis added). This means, firstly, commanders of the Colombian armed forces are explicitly required to have effective control over the specific conduct that led to the commission of a crime by the commanders’ subordinates.74 Unlike for the effective control of FARC-EP superiors, no reference is made to the actual or factual ability of the commander. Hence, by applying this requirement, the JEP is confronted with the challenge to draw a line between command responsibility and principal modes of liability, in particular co-perpetration, indirect perpetration and indirect co-perpetration under Article 25(3)(a) of the Rome Statute.75 Control over the specific conduct of the subordinates requires the commander to have the possibility to decide if the crimes will be committed and if so, under which circumstances they will take place.76 It requires an active contribution to the commission of the crimes on part of the superior.77 This relates to the ‘control over the crime’ theory that distinguishes primary liability from accessory liability.78 However, command responsibility was established in order to fill a liability gap.79 Accordingly, it cannot be subordinated under one of the modes of liabilities in Article 25(3) of the Rome Statute.80 For this reason, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC perceive

73 74 75 76 77 78 79 80

Ibid. Acto Legislativo 01, Art. 24; OTP, Amicus curiae brief (n 12) [12]. OTP, Amicus curiae brief (n 12) [14]; Cote Barco [2019] (n 63) 181–2. Cote Barco (n 63) 182. Ibid. Prosecutor v Lubanga Dylio, Decision on the Confirmation of Charges against Lubanga Dylio, ICC-01/04-01/06, (29 January 2007) [330, 338]. Werle and Jeßberger (n 11) 302. Mettraux (n 40) 43.

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command responsibility as a subsidiary mode of liability sui generis81 that shall be applied to superiors when the other modes of liability – in particular those establishing primary liability  – are not applicable.82 As not the commander him- or herself, but his or her subordinates are committing the crimes,83 command responsibility is classified as an additional form of accessory liability.84 Thus, whenever there is a reasonable basis to hold a superior responsible under a primary mode of liability, priority needs to be given to such.85 This is evidenced by the Pre-Trial Chamber’s (PTC) decision to confirm the charges against Mr Jean-Pierre Bemba Gombo under Article 28 of the Rome Statute86 only after finding that there is insufficient evidence to hold Mr. Bemba criminally responsible as a co-perpetrator under Article 25(3)(a) of the Rome Statute.87 Interpreting the provision in Article 24 Acto Legislativo 01 in a strict sense requires the same ‘control over the crime’ threshold as the primary modes of liability under Article 25(3)(a) of the Rome Statute. This makes it far more difficult to perceive command responsibility as a mode of liability sui generis filling a liability gap.88 Moreover, it disregards the accessory character of command responsibility. The commander’s culpability lies in the dereliction of his or her duty, not in the contribution he or she made to the crime of a subordinate.89 Secondly, two additional elements of Article 24 Acto Legislativo 01 make it difficult for the JEP to comply with the concept of effective control under the Rome Statute: the requirement that the crime must have been committed within the superior’s area of responsibility,90 and the requirement that the superior had the legal and material capacity to issue, modify and enforce orders (emphasis added).91 Although according to Article 24 Acto Legislativo 01 the 81 Bemba, TC (n 58) [171–174]; ICTY, Prosecutor v Halilović, Trial Chamber Judgment, IT-01-48 (16 November 2005) [42]; ICTY, Prosecutor v Hadžihasanović and Kubura, Trial Chamber Judgment, IT-01-47 (15 March 2006) [66]. 82 Bemba, TC (n 58) [174]; Werle and Jeßberger (n 11) 303. 83 Bemba, TC (n 58) [173]. 84 Darryl Robinson, ‘A Justification of Command Responsibility [2017] 28 Criminal Law Forum 633, 635; Darryl Robinson, How Command Responsibility got so complicated: a culpability contradiction, its obfuscation and a simple solution’ [2012] 13 MJIL 1, 4, 8. 85 Chantal Meloni, ‘Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?’ [2007] 5 JICJ 619, 619, 631; Werle and Jeßberger (n 11) 304. 86 Bemba, PTC (n 40) [501]. 87 Ibid [401–02]. 88 Cote Barco (n 63) 182. 89 Mettraux (n 40) 42. 90 Acto Legislativo 01, Art. 24(a). 91 Acto Legislativo 01, Art. 24(b).

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position of the commander does not suffice to establish criminal responsibility, both elements indicate a formal position of the superior in order to affirm effective control. The assessment of such a criterion would then be a matter of law instead of evidence. As explained above, the ICC jurisprudence focuses instead on the ‘material ability’ to prevent, repress or report criminal conduct.’92 The emphasis on the factual ability of the superior to take measures cannot become irrelevant in the JEP’s jurisprudence.93 Hence, the JEP must draw more attention to evidence of effective control than to the formal position of the superior.94 Focusing too much on the superior’s legal position bears two risks: first, including superiors that had formal command but lacked the material capacity to prevent, repress or report crimes; second, excluding commanders that had the material ability to prevent, repress or report crimes but were not in a formal position to do so.95 This can be exemplified in the case where a commander was assigned to realize operations in a specific area in an armed conflict. Although such formal assignation can be evidence of the commander’s effective control,96 under the Rome Statute it cannot be automatically concluded that the superior had the ultimate control over the subordinates in the sense of having the material ability to prevent, repress or report the conduct.97 On the other hand, the fact that the commander does not have the formal authority over a geographical area, does not per se exclude that he or she has the material ability to take measures to prevent, repress and submit international crimes to the competent authorities.98 The last aspect is closely linked to the question of whether the superior’s lack of territorial connection with the area where the subordinates operate, has an impact on the effective control over the subordinates. Regarding this aspect, the JEP is left with a margin of interpretation since this issue has been shown to be controversial in the Appeals Chamber (AC) judgment in Bemba. Three out of five judges found that the commander’s remoteness does not necessarily impact the level of effective control over the direct perpetrators but is a factor among others that comes into consideration when determining effective control.99 Judge Van den Wyngaert and Judge Morrison in contrast argued 92 93 94 95 96 97 98 99

Bemba, AC (n 65) [5]; Čelebići (n 65) [256]. OTP, ‘Amicus curiae brief’ (n 12) [15]. Ibid [16]. Ibid [23]. Bemba, TC (n 58) [188–89]. OTP, ‘Amicus curiae brief’ (n 12) [15]. Bemba, AC (n 65) [172–73]. Ibid, Concurrent Separate Opinion of Judge Eboe-Osuji [3, 158]; Ibid, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański [127].

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that structural and geographic remoteness make it ‘impossible’ for commanders to have effective control over the subordinates.100 Thirdly, under Article 24(d) Acto Legislativo 01, the commander must not only have the material but also the direct capacity to take appropriate measures to prevent or repress the crimes. ‘Direct capacity’ requires that the commander is directly in charge of the subordinates that committed the crimes. Applied in a strict sense, this excludes constellations in which the superior is not the immediate commander of the subordinates that committed the crimes although he or she had the material capacity to prevent, repress or report their crimes.101 To follow the rationale of the Rome Statute, criminal responsibility cannot be solely based on the hierarchical position of the commander. Therefore, the tribunal must be careful to not merely assess substantive law rather than evidence.102 As under the Rome Statute, the JEP must focus on the superior’s material capacity to prevent, repress or report crimes. There must be the possibility to hold a superior accountable that had such material capacity, although there were intermediate superiors between the direct perpetrators of the crime and the accused commander.103 This is based on the view that responsibility arises for all superiors in the chain of command even if they are in a higher rank and geographically distanced from the place the crimes take place as long as they maintain the material ability to prevent, repress or report the crimes.104 3.2 The Mental Element Regarding the subjective element, there are two different understandings within international law: the standard under customary international law (CIL) applied by the ad-hoc tribunals, and the standard of the Rome Statute. To be liable under CIL, superiors must have known or ‘had reason to know’ that the subordinates were committing or about to commit the particular crimes.105 Article 28(a)(i) of the Rome Statute also applies a ‘two standards of fault

100 Ibid, Separate Opinion of Judge Christine Van den Wyngaert and Judge Howard Morrison [33–6]. 101 Olasolo and Canosa Cantor (n 12) 101. 102 Stewart (n 12) [112]. 103 Bemba, TC (n 58) [184]; ICTY, Prosecutor v Orić, Appeals Chamber Judgment, IT-03-68 (3 July 2008) [20]. 104 Bemba, PTC (n 40) [410]. 105 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704 (1993), Art. 7(3); Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), Art. 6(3).

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element’,106 according to which commanders either must have actual knowledge or ‘should have known’ about the criminal conduct of their subordinates.107 Under both approaches, criminal responsibility can be invoked if the commander had actual knowledge about the commission of crimes by the subordinates. Actual knowledge is understood as the ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events.’108 It can be established through either direct or circumstantial evidence.109 Under CIL, the ‘had reason to know’ requirement applies if commanders had sufficient information permitting them to conclude that crimes had or were about to be committed by their subordinates.110 Such information only need to be of a general nature about possible crimes.111 This can for instance refer to information about the commission of crimes in the past.112 The ICC has taken the approach that the negligence standard is lower than the mens rea standard applied by the ad-hoc tribunals113 and lower than the general mental state required for the commission of a crime under Article 30 of the Rome Statute.114 This lower threshold is justified by the hierarchical structure within which a commander operates in combination with the responsibility for his or her subordinates.115 The PTC in Bemba concluded that the failure to seek information can already lead to liability.116 This implies an ‘active duty of the commander to ensure knowledge of the conduct of the troops and to inquire, regardless of the availability of information at the time of the commission of the crime.’117 It was interpreted as a ‘duty of effort’, rather than a ‘duty of result’.118 This is based on the assumption that if the commander had tried to obtain knowledge, he or she would have found relevant information.119 Hence, it is not the possession of information that is determinative for the criminal 106 107 108 109 110

Bemba, PTC (n 40) [429]. OTP, ‘Amicus curiae brief’ (n 12) [27]. Rome Statute, Art. 30(3). Bemba, TC (n 58) [191]; Čelebići, AC (n 65) [223–226]; Bagilishema, AC (n 71) [26–38]. AP I, Arts. 86(2), 87(3); Čelebići, AC (n 65) [226]; Bagilishema, AC (n 71) [28]; Mettraux (n 40) 101. 111 Čelebići, AC (n 65) [238, 241]; Nahimana et al, AC (n 65) [791]; Bagilishema, AC (n 71) [28]. 112 Delalić et al, TC (n 55) [383]; ICTY, Prosecutor v. Krnojelać, Appeals Chamber Judgment, IT-97-25-A (17 September 2003) [155]. 113 Bemba, PTC (n 40) [434]; Mettraux (n 40) 101. 114 Bemba, PTC (n 40) [354]; Werle and Jeßberger (n 11) 310. 115 Bemba, PTC (n 40) [433]. 116 Ibid [429, 432–34]. 117 Ibid [433]. 118 Robinson (n 84) 643. 119 Ibid; Čelebići, AC (n 65) [226].

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responsibility of the commander, but the exercise of due diligence120 to obtain that information. Consequently, in order to comply with Article 28(a)(i) of the Rome Statute, the JEP must apply the ‘two standards of fault’ in the Rome Statute. This urges the JEP to not only include the possibility that the commander knew, but also a standard below actual knowledge. In relation to the second standard of fault, the JEP must distance itself from the CIL interpretation of the ad-hoc tribunals requiring the possession of information. This means, commanders should not be prosecuted on the basis of available information they had about the commission of offences by their subordinates.121 Instead, the tribunal must impose on the commanders of the Colombian armed forces and FARC-EP members ‘actively acting as military commanders’ also the duty to exercise due diligence when trying to obtain information about their subordinates’ activities. As a benchmark for the mental element of commanders of the armed forces under Article 24(d) Acto Legislativo 01 likewise serves their knowledge assessed on the information they had before, during and after the commission of the conduct.122 Due to the primacy of domestic law for the interpretation of the armed forces’ command responsibility, Article 24(d) Acto Legislativo 01 specifies this requirement by stating that the superior must have had either actual or ‘updatable knowledge’ (conocimiento actualizable). The formulation is closely connected to the standard of the ad-hoc tribunals and originates in domestic legislation, such as the 2016 established MFE 6-27 Land Operations Manual, which refers to the ‘had reason to know’ standard.123 However, unlike the ‘had reason to know’ standard of the ad-hoc tribunals, the ‘should have known’ standard in Article 28(a) of the Rome Statute does not require the commander to have access to information.124 Rather, the crucial difference is that for criminal responsibility under the ‘had reason to know’ standard, the superior must possess information enabling him or her to conclude that subordinates are committing or about to commit crimes.125 In contrast, according to the ICC standard, a commander must actively seek this information. Applying the ad-hoc tribunal standard would be inconsistent with the concept of negligence in Article 28(a) of the Rome Statute. This can be exemplified 120 Robinson (n 84) 643. 121 Mettraux (n 40) 101. 122 Acto Legislativo 01, Art. 24. 123 2016 MFE 6-27 Derecho Operacional Terrestre, 7 August 2016, 12, section 4.2; Olasolo and Canosa Cantor ‘The Treatment of Superior Responsibility in Colombia’ (n 12) 68, 79. 124 Arguing differently: Kai Ambos, Treatise on International Criminal Law Vol 1 (1st edn, Oxford University Press, 2013) 225. 125 Cf ibid although arguing differently.

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by comparing negligence to the concept of recklessness. A commander acting recklessly ‘consciously disregards’126 a risk he or she was aware of.127 This means that any inactivity of a commander after receiving even vague information that serious crimes are being or are about to be committed, must necessarily lead to the conclusion that the commander is aware of the risk that such crimes will possibly take place, which would then meet the requirements of recklessness. In contrast, negligence does not require awareness. A commander acts negligently when he or she had the means to obtain relevant information.128 This means that he or she fails to perceive a risk he or she should have been aware of129 based on his or her general duty to monitor the acts of his or her subordinates.130 Keeping in mind the seriousness of the criminal offences before the ICC, acting negligently in a commander’s position is a ‘gross deviation’131 from the standard of care that is required by the commander’s faculty to advert a risk and to control the subordinates’ conduct.132 Such interpretation is supported by the fact that a higher mens rea threshold applies for non-military superiors in Article 28(b) of the Rome Statute,133 which do not have the same legal supervision obligations as military commanders.134 Civilian superiors under Article 28(b) must have information that clearly indicates a significant risk that subordinates were committing or were about to commit offences.135 This standard of mens rea is closer to the standard under customary international law.136 In light of this, interpreting Article 24(d) Acto Legislativo 01 stricto sensu bears the risk to exclude the criminal negligence standard applied by the ICC and to leave unpunished those commanders that failed to seek information.137 According to Article 67 of Ley No. 1957, the mental element for the liability of FARC-EP superiors requires that they have knowledge about the conduct of their subordinates. As for the responsibility of commanders of the Colombian military, knowledge is to be assessed on the information they had before, during and after the commission of the conduct.138 However, differently, Article 67 126 Ibid. 127 Ibid 224–25. 128 Čelebići, AC (n 65) [226]. 129 Ambos (n 124) 225. 130 Robinson (n 84) 639. 131 Ibid 649; Ambos (n 127) 225. 132 Robinson (n 84) 649. 133 Bemba, PTC (n 40) [433]; Mettraux (n 40) 196. 134 Bemba, PTC (n 40) [433]; Mettraux (n 40) 107. 135 Ambos (n 127) 227. 136 Mettraux (n 40) 195. 137 Cf Bemba, PTC (n 40) [429, 432–34]. 138 Peace Agreement, 164 [59]; Ley No. 1957, Art. 67.

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of Ley No. 1957 only refers to ‘knowledge’. Although this term is broader than the formulation in the Rome Statute requiring that the commander ‘knew or should have known’, it does not automatically only refer to actual knowledge as in the case of the Colombian armed forces. ‘Knowledge’ is used as a generic term, including both standards of fault.139 Nevertheless, Article 67 of Ley No. 1957 indicates that knowledge shall be assessed on the information commanders had before, during and after the commission of the subordinates’ crimes.140 In relation to the second standard of fault, this seems to rather support the approach taken by the ad-hoc tribunals. 3.3 Measures the Commander Is Required to Take For criminal responsibility to apply, FARC-EP commanders must have had either the capacity to prevent the criminal conduct or the capacity to take corresponding decisions after it occurred.141 Likewise, commanders of the Colombian armed forces can be held accountable if they had the capacity to prevent the commission or continuation of the punishable conduct whenever the conditions allow it (emphasis added).142 After the commission of the crime, accountability can arise if they had the capacity to promote corresponding investigations.143 In light of Article 28(a)(ii) of the Rome Statute, this must be understood by the JEP as requiring commanders to do what is necessary and reasonable to prevent, repress, or report the offences the superior knew or ought to have known of.144 This is linked to the element of effective control over the subordinates,145 namely the material ability to prevent, repress or report crimes.146 Necessity and reasonableness include that the commander must not ‘take each and every possible measure at his or her disposal.’147 Rather, measures must be assessed in light of the circumstances at the time the superior was supposed to

139 Bemba, TC (n 58) [196]; Mettraux (n 40) 208–13. 140 Peace Agreement, 164 [59]; Ley No. 1957, Art. 67. 141 Peace Agreement, 164 [59]; Ley No. 1957, Art. 67. 142 Acto Legislativo 01, Art. 24. 143 Ibid. 144 The commander is required to either prevent, repress or report the crimes. However, the commission of a subordinate’s crime where the superior was able to prevent, cannot be remedied by subsequent punishment, cf Bemba, TC (n 58) [201]; ICTY, Prosecutor v Blaškić, Appeals Chamber Judgment, IT-95-14 (29 July 2004) [78–85]; Halilović TC (n 81) [94]; ICTY, Prosecutor v Orić, Trial chamber Judgment, IT-03-68 (30 June 2006) [326]; Cryer et.al (n 39) 374. 145 Cryer et al (n 39) 375. 146 Bemba, AC (n 65) [167]. 147 Ibid [169].

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react.148 A commander may weigh the measures he or she is required to take against the negative impact on ongoing or planned operations.149 Hence, in holding a commander responsible, the JEP must show what he or she could have done in concreto.150 Generally, the factors to be considered in determining the measures a commander is required to take correspond with the requirements of ‘all necessary and reasonable means’ in Article 28(a)(ii) of the Rome Statute,151 insofar the limitation of ‘whenever the conditions allow it’ in Article 24 Acto Legislativo 01 are not applied in a restrictive way. Nexus between the Failure to Take Measures and the Crimes Committed The provisions in the Peace Legislation leave it unaddressed whether a nexus between the commander’s failure to take measures and the crimes committed by the subordinates is required.152 On the one hand, the JEP could interpret this in light of the approach of the ad-hoc tribunals, which does not require causality between the commander’s conduct and the occurrence of the crime.153 On the other hand, the absence of an explicit reference to a nexus leaves room for the JEP to interpret this element in accordance with the ICC approach. Although Article 28(a) of the Rome Statute does not explicitly refer to a causal nexus, the wording ‘as a result of his or her failure’ was interpreted by the PTC and the Trial Chamber (TC) in Bemba as requiring a personal nexus between the commander and the crime.154 This means, the crimes of the subordinates occur as a result of the commander’s failure to take measures.155 It is satisfied if the crimes would not have been committed in the circumstances at that time if the commander had exercised his or her control properly.156 In the PTC’s judgment in Bemba, causality was limited to the duty to prevent crimes. The obligations to repress or submit the matter take place during or after the commission of crimes. Although the commander’s failure in this regard can have a causal impact on the commission of further crimes, it cannot retroactively cause the crimes to be committed.157 Nevertheless, the actual scope 3.4

148 149 150 151 152 153 154 155 156 157

Ibid [169–70]. Ibid [170]. Ibid [170]. Olasolo and Canosa Cantor (n 12) 101. Ibid 103. Halilović TC (n 81) [75–78]; Orić TC (n 144) [338]. Bemba PTC (n 40) [423]; Bemba TC (n 58) [211]. Bemba, PTC (n 40) [423]; Bemba, TC (n 58) [170]. Bemba, TC (n 58) [213]. Bemba, PTC (n 40) [424].

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of causation remains controversial in the ICC jurisprudence. The PTC argued that causality for omissions applies in a broad sense.158 To this end, no direct link between the commander’s omission and the commission of the crime must be shown. Rather, it is ‘only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged.’159 This was left unaddressed in the TC’s and AC’s majority judgment. However, some judges of the AC argued that causation must be applied in a strict sense. Under such a strict approach, responsibility must be excluded if the failure to react merely facilitated the commission of the crime.160 Instead, there must be a ‘high probability that, had the commander discharged his or her duties, the crime would have been prevented or would not have been committed by the forces in the manner it was committed.’161 This requires a ‘demonstrably close link between the commander’s omission and the crimes committed by his or her troops.’162 This shows that the ICC case law on causality is not yet settled. While, pursuant to the ICC jurisprudence, the JEP is required to apply causality for the commander’s omission regarding his or her preventive duties, the tribunal is also left with a margin when defining the actual scope of causation. Neither the broad scope application – as supported by the PTC – nor the application of causation in a strict sense – as favoured by several judges in the AC – would necessarily invoke a conflict with the Rome Statute. 3.5 Conclusions on the Margin of Interpreting the Peace Legislation Against the background of the comparative analysis above, the definition of command responsibility for FARC-EP superiors in Article 67 of Ley No. 1957 and paragraph 59 of the Peace Agreement is not contradictory to the scope of command responsibility under the Rome Statute. The broad definition leaves room for the JEP to interpret the provisions in accordance with Article 28(a) of the Rome Statute and the jurisprudence of the ICC. However, in contrast to the ‘original’ version of the Peace Agreement, the revised Peace Agreement does not specifically require compliance with Article 28 of the Rome Statute, but with IHL, international human rights law and international criminal law 158 Ibid [425]. 159 Ibid. 160 Bemba, AC (n 65) Concurring Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmánski [339]; Ibid., Separate Opinion of Judge Van den Wyngaert and Judge Morrison [51–56]; Ibid, Concurring Separate Opinion of Judge Eboe-Osuji [166, 185]. 161 Bemba TC (n 58) Separate Opinion of Judge Steiner [24]; Bemba AC (n 65) Concurring Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmánski [339]. 162 Bemba AC (n 65) Concurring Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmánski [339].

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in general. This leaves a rather broad scope of interpretation, which can be perceived as a risk of leading to impunity by not setting out more specific requirements.163 Thus, it is also within the JEP’s legal possibilities to deviate in some respects from the Rome Statute.164 This becomes particularly relevant for the mental element and the requirement of causation, for which the interpretation of the ad-hoc tribunals or IHL differ from the application by the ICC. However, it seems not to be in line with the complementarity principle, as explained in the previous section, to assume the inability or unwillingness of a State solely based on a rather small deviation in the mental element, while still complying with an approach of CIL, and on the requirement of causation, for which the ICC jurisprudence is not even settled yet. Hence, for the criminal responsibility of FARC-EP superiors, it is only reasonable to conclude that the Peace Legislation is following the rationale of command responsibility under the Rome Statute. Given the narrower scope of Article 24 Acto Legislativo 01 and paragraph 44 of the Peace Agreement in comparison, the JEP is confronted with more challenges to apply the provisions in line with the rationale of Article 28(a) of the Rome Statute. While for the deviation of the mental element from the ICC standard, the same conclusion as for the FARC-EP superiors can be drawn, the commander’s level of control causes more difficulties in this regard. This is particularly due to the stringent perception of effective control, which does not focus on the commander’s material ability to take measures to prevent, repress or report crimes of their subordinates, as one of the decisive elements of command responsibility. 4

The Limitations Set by Colombian Law

While the Peace Legislation deviates in some parts from Article 28(a) of the Rome Statute, the provisions, save the interpretation of ‘effective control’ under Article 24 Acto Legislativo 01, leave a certain leeway to the JEP to apply them in a way that reflects the rationale of command responsibility in the Rome Statute. The value of this conclusion, however, is significantly narrowed if looking at the JEP’s anchorage in Colombian law. Although according to Article 5 Acto Legislativo 01 and Article 8 Ley No. 1957 the JEP exercises its jurisdiction autonomously,165 a closer look at the process by which the JEP was 163 CCC, C-674/2017, 372. 164 Ley No. 1957, Art. 67. 165 Acto Legislativo 01, Art. 5; Ley No. 1957, Art. 8.

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created and a ruling by the CCC on the constitutionality of Acto Legislativo 01 and Ley No. 1957166 shows that the JEP cannot exercise its jurisdiction independently from Colombian law. In this part, it is explained that the underlying obstacle for the JEP in interpreting command responsibility in consistency with Article 28(a) of the Rome Statute is the JEP’s legal nature and the principle of legality binding the JEP to exercise its jurisdiction within the Colombian legal order. 4.1 The Principle of Legality According to Article 10 of Ley No. 1957, the JEP is bound by the principle of legality when carrying out its functions, including the application of the provisions on command responsibility in the Peace Legislation.167 The principle of legality is established in Article 29 of the Colombian Constitution according to which no one may be tried before a competent court or tribunal unless in accordance with a law that existed prior to the conduct he or she is accused of (…)168 Despite the JEP’s autonomous jurisdiction,169 the reference to the principle of legality is relevant for the application of command responsibility as the revised Peace Agreement does not recognize the JEP as an internationalized hybrid tribunal.170 This is different to the ‘original’ version of the Peace Agreement from 24 August 2016,171 which had foreseen a reference to Article 28 of the Rome Statute, a mixed composition of Colombian and international judges, and no review function by the CCC.172 This first version was rejected by 50.2 percent in a national referendum held on 2 October 2016.173 The revised version by 166 CCC, C-674/2017; CCC, C-080/2018. 167 Ley No. 1957, Art. 8. 168 Original: Nadie podrá ser juzgado sino conforme a leyes preexistentes al acto que se le imputa, ante juez o tribunal competente (…), (translation from Spanish by the author); 1991 Constitución Política, 4 July 1991, Art. 29. 169 Acto Legislativo 01, Art. 5; Ley No. 1957, Art. 8. 170 Héctor Olasolo and Joel M.F. Ramirez Mendoza, ‘The Colombian Integrated System of Truth, Justice, Reparation and Non-Repetition’ [2017] 15 JICJ 1011, 1026. 171 Original Peace Agreement 167 [65]. 172 Oficina del Alto Comisionado para la Paz, ‘Notas sobre los Cambios, Ajustes y Precisiones del Nuevo Acuerdo Final para la Terminación del Conflicto y la Construcción de la Paz Estable y Duradera’ [2016] accessed 20 June 2022, 6–7. 173 Hernández Jiménez (n 2) 218.

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contrast attributes several ‘domestic’ features to the JEP.174 Firstly, a review power of the CCC,175 which is triggered whenever a person seeks immediate protection of his or her constitutional rights against an action or omission by any organ of the JEP which is violating or threatening fundamental rights.176 This is possible through a method of recourse under Colombian law called acción de tutela. Secondly, unlike an internationalised hybrid tribunal, the tribunal is not composed of a combination of national and international judges, but only national judges.177 The third domestic feature is the primary application of the CPC,178 according to which the JEP is required to base its decisions on the CPC and only complement it with the rules of international law.179 This is further underlined by the fact that the law governing the JEP was enacted by the Colombian Congress180 and is subject to the CCC’s review of its constitutionality.181 In practice, these domestic features in the revised Peace Agreement require the JEP to act in compliance with Colombian law and jurisprudence. This means that to prosecute a superior in the context of the armed conflict in Colombia, command responsibility must have been criminalised in Colombian law prior to the time over which the JEP exercises jurisdiction. The applicability of this mode of liability could be confirmed either by way of direct application of the Rome Statute at the national level or implementation of command responsibility into the Colombian legislation prior to the occurrence of the crimes alleged. Looking at the Colombian legal system and its approach towards the application of international treaties, one must notice its dualist approach, according to which the provisions of the Rome Statute are only understood as a general obligation for the state to implement its provisions in national law, where such are not contradictory to the national judicial system.182 This means that Article 28(a) of the Rome Statute was not automatically included into the Colombian legislation upon ratification of the Rome Statute in 2002,183 but required prior inclusion of this mode of liability into Colombian law. As stated, 174 Olasolo and Ramirez Mendoza (n 170) 1026–27. 175 Peace Agreement, 160; Acto Legislativo 01, Art. 8. 176 Peace Agreement, 160; Acto Legislativo 01, Art. 8; Olasolo and Ramirez Mendoza (n 170) 1027. ‘Fundamental rights’ refer to political, social, economic and cultural rights. For a list see the Preamble of the Peace Agreement 2. 177 Olasolo and Ramirez Mendoza (n 170) 102; Peace Agreement 167–68 [65–6]. 178 Oficina del Alto Comisionado para la Paz (n 172) 6. 179 Ibid. 180 Referring to Acto Legislativo 01 and Ley No. 1957. 181 Cf CCC, C-674/2017; CCC, C-080/2018. 182 CCC, C-674/2017, 379–81. 183 Through 2002 Ley No. 742, 5 June 2002.

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prior to the Peace Legislation, there was no provision in Colombian law outside the military context that expressly provided for the criminal responsibility of commanders.184 Consequently, in applying the provisions on command responsibility in the Peace Legislation, the JEP cannot simply have recourse to Article 28(a) of the Rome Statute as it is neither directly applicable to the tribunal nor has command responsibility been included into Colombian legislation via the specific criminalisation approach prior to the Peace Agreement in November 2016. Further, the JEP cannot apply the Peace Legislation as binding on its own, given that it has been established after the period over which the JEP has temporal jurisdiction (before 1 December 2016).185 In order to comply with the principle of legality, the CCC held that the provisions on command responsibility in the Peace Agreement, Acto Legis­ lativo 01, and Ley No. 1957 are only understood as ‘auxiliary elements of interpretation.’186 This means that criminal responsibility cannot be solely based on those provisions since they cannot be applied independently from other provisions.187 This is further confirmed by the wording of the provisions themselves that do not connect a specific conduct with a consequence as for example Article 28(a) of the Rome Statute does: ‘a commander shall be criminally responsible […] where […].’188 In concrete, this means that the international law standard for the responsibility of FARC-EP commanders can only be customary international law due to its existence prior to the armed conflict over which the JEP exercises jurisdiction. Its applicability has been confirmed by the CCC.189 For the definition applicable to commanders of the Colombian armed forces on the other hand, the JEP will be guided by Colombian criminal law and the jurisprudence of the CCC given the primacy of domestic law for its interpretation.190 Command Responsibility as Commission by Omission (Omisión Impropia) For the reasons set out above, the CCC used the minimalist approach and subsumed command responsibility under a pre-existing mode of liability in 4.2

184 Olasolo and Canosa Cantor (n 12) 64, 79. 185 Cote Barco (n 63) 177. As indicated above, the Peace Agreement was signed on 24 Novem­ber 2016, Acto Legislativo 01 entered into force on 4 April 2017, and Ley No. 1957 on 6 June 2019. 186 CCC, C-080/2018, 552. 187 Ibid. 188 Cf Cote Barco (n 63) 178. 189 See CCC, C-674/2017, 384. 190 Acto Legislativo 01, Art. 24.

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Colombian law, namely commission by omission (omisión impropia)191 in Article 25 CPC.192 According to the CCC, the provisions referring to command responsibility in the Peace Legislation can therefore only be applied in conjunction with Article 25 CPC.193 Further, the CCC found that this applies to both the criminal responsibility of superiors of the Colombian military and the FARC-EP.194 Article 25 CPC establishes that everyone that has the legal duty to prevent the commission of a crime and the possibility to do so, but does not carry out this duty, will be subjected to the sentence established under the norm of the crime.195 Such legal duty applies to those who have a ‘guarantor position’ (posición de garantía), meaning those who are responsible for the protection of a specific legal good or those who have been entrusted with the surveillance of a particular source of risk. By omitting to act upon this protective function, those in such position can be held criminally responsible for the crime they failed to prevent. The CCC argues that command responsibility is entirely covered by liability for omission under Article 25 CPC.196 Commanders are in a guarantor position against the risk of breaching civilians’ rights as a result of the unlawful conduct by their subordinates or third parties against which they had the duty to react.197 According to the CCC, the application of Article 25 CPC is in accordance with the purpose of the Rome Statute since it guarantees the effective prosecution of those most responsible for the crimes committed during the NIAC in Colombia,198 most importantly false positive killings, forced displacements, and sexual and gender-based crimes. 191 CCC, C-674/2017 376, 379; CCC, C-080/2018, 552. 192 Cf Cote Barco (n 63) 177; 2000 Código Penal Colombiano, Ley No. 599 de 24 Julio de 2000, Art. 25. 193 CCC, C-080/2018, 552–53. 194 Ibid 552; CCC, C-674/2017, 387. 195 Original: ‘El deber jurídico de impedir un resultado perteneciente a una descripción típica y no lo llevare a cabo, estando en la posibilidad de hacerlo, quedará sujeto a la pena contemplada en la respectiva norma penal’ (translated from Spanish by the author), Art. 25 CPC; CCC, C-674/2017 376. 196 CCC, C-674/2017, 376. 197 Gustavo Emilio Cote Barco, ‘Responsabilidad del Superior Jerárquico y Responsabilidad Penal por Omisión de Miembros de la Fuerza Pública en Colombia: ¿Convergencia entre el Derecho Penal Nacional e Internacional?’ [2016] 28 International Law Review 49, 76. 198 CCC, C-674/2017, 373.

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Certainly, both modes of liability attribute criminal responsibility to a person that had the duty to react, the means to carry out this duty, but still did not comply with it. However, the scope of Article 25 CPC differs in certain elements from the scope of Article 28(a) of the Rome Statute.199 The similarities and differences of those provisions are addressed in the following. For this, reference is made to the four elements of command responsibility set out in the previous part of this paper. 4.2.1 The Guarantor Position as Effective Control? Decisive for the application of Article 25 CPC is a ‘guarantor position’ that sets the individual under the duty to prevent a risk. In the case of superiors, the CCC clarified that this can be established either by the superior’s ‘organisational competence’200 or by the superior’s ‘institutional competence.’201 The organisational competence arises from situations in which the development of dangerous activities has created a risk that is in principle permitted but from which stems a duty to take safety measures, or if this fails, a duty to rescue.202 The institutional competence relates to situations where a superior belongs to an institution that comes along with the obligation to protect a community against threats.203 In both cases the guarantor position must not be established in abstract but in concrete. To this end, it must be considered the material, functional, and territorial competence of each commander.204 Given this definition, the JEP can attribute a guarantor position to both commanders of the FARC-EP and Colombian armed forces. The guarantor position can be attributed to FARC-EP superiors due to their organisational competence. This is based on their duty to respect the rules of armed conflict as party to the NIAC205 and in particular to protect civilians that are not participating in the hostilities against attacks.206 For the same reasons, the guarantor position of national army commanders can be based on their organisational competence. Additionally, it can be attributed due to their 199 Cote Barco (n 63) 180. 200 CCC, Judgment SU-1184/2001, 13 November 2001, section II, 15.1, 17. 201 Ibid, section II, 15.2, 17. 202 Ibid, section II, 15.1, 17. 203 Ibid, section II, 15.2, 17. 204 Ibid, section II, 17(b), 20; Cote Barco (n 197) 79. 205 See e.g. 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31, 12 August 1949, Art. 3. Article 3 is common to all four Geneva Conventions from 1949. 206 2005 Customary Rules of International Humanitarian Law (2005), Rules 1, 2, 6; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, Art. 13.

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institutional competence as part of the state apparatus with the obligation to protect the rights of the Colombian population.207 Thus, the requirements to establish a guarantor position, as mentioned above, are applicable to superiors of both parties to the Peace Agreement. The consideration of the material, functional, and territorial competence of the superior seems to reflect the evidentiary factors that the ICC considers as relevant for the establishment of effective control. Among other things they include the commander’s official position, the power to issue orders and the representation of the forces.208 However, the ICC’s concept of effective control is based on the material capacities of the superior rather than his or her formal position.209 Thus, it is important that the JEP considers the commanders’ functional and territorial competences solely as indicators for their material capacity rather than cumulative and determinative requirements. Neither the legal function of commanders nor their geographical location necessarily determines their level of effective control.210 4.2.2

The Mental Element: The Difference between Delito Doloso and Delito Culposo Under ‘commission by omission’ the superior is required to share the mental element of the crime. This means that the mental element required for command responsibility depends on the specific offence. It can consist in 1. delito doloso: the intent to bring about the subordinates’ crimes (dolus directus); 2. delito culposo: the knowledge or awareness that the superior’s omission will necessarily cause the subordinates’ commission of the crimes (dolus directus second degree); or 3. conducta preterintencional: the awareness of the risk that the subordinates’ crimes may result from the superior’s omission and the acceptance of such outcome (dolus eventualis).211 This is relevant since, under Colombian law, the conduct amounting to crimes against humanity and war crimes that had been identified by the OTP such as torture and forced displacement212 requires intent (conducta dolosa).213 For example, under Article 137 CPC the subjective element of the war crime 207 208 209 210

MFE 6-27 (n 126) 1–2, sections 1.1–1.9. Bemba, TC (n 58) [188]. Ibid [184–89]. Bemba, AC (n 65) Concurrent Separate Opinion of Judge Eboe-Osuji [3, 158]; Ibid, Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański [127]. 211 CPC, Arts. 21–25; Olasolo and Canosa Cantor (n 12) 90; Cote Barco (n 63) 76. 212 Rome Statute, Art. 7(1)(d),(f); Art. 8(2)(c)(i), cf OTP, ‘Report on Preliminary Examination Activities’ (2018) [131–32]. 213 CPC, Arts. 137, 180; Cote Barco (n 197) 84, 90; Cote Barco (n 63) 175.

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of torture requires that the severe physical or mental pain or suffering must be for the purpose of obtaining information or a confession (…), punishing him or her (…) or intimidation or coercion for discriminatory reason. This intent or dolus directus must be shared by the commander by virtue of Article 25 CPC. Consequently, if the failure to comply with a duty to prevent does not take place with the intent to cause the consequences (conducta dolosa or dolus directus), but with knowledge that they will take place (conducta culposa or dolus directus second degree), the commander cannot be charged with those crimes. This is contradictory to Article 28(a)(ii) of the Rome Statute, according to which the mental element to establish command responsibility is that the superior either knew or should have known about the subordinates’ criminal conduct. This mental element applies independently from the crime the subordinates have committed or were about to commit. According to the ICC, this mens rea threshold for superiors is lower than the general standard under Article 30 of the Rome Statute, which requires intent and knowledge for the commission of crimes.214 Neither actual knowledge nor negligence automatically implies that the commander acted with intent. Indeed, when acting negligently, the superior is not even aware of the commission of crimes.215 Hence, under Article 28(a)(ii) of the Rome Statute conducta culposa is not an obstacle for charging a superior with the aforementioned crimes.216 Consequently, when applying the standard of Colombian law, the JEP requires commanders to share the same mens rea as the subordinates when committing the crimes. This risks excluding the responsibility of superiors that either knew or should have known about subordinates’ crimes for which a higher mens rea threshold applies under national law, such as torture and forced displacement. 4.2.3 The Limitation to Preventive Measures As established, under Article 28(a)(ii) of the Rome Statute, the failure to prevent, repress or report can lead to the criminal responsibility of superiors for crimes committed by their subordinates. In contrast, under the scope of Article 25 CPC only the failure to comply with a duty to prevent can lead to the prosecution of commanders.217 The non-compliance with a duty to repress or report the crimes committed by subordinates does not per se invoke criminal responsibility. It only falls under liability for omisión impropia in case the 214 215 216 217

Bemba, PTC (n 40) [354]. Čelebići AC (n 65) [226]. Cote Barco (n 63) 175. Ibid.

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omission to repress or report directly caused the commission of the crime.218 Thus, following the wording of Article 25 CPC, the JEP would apply a narrower approach than the Rome Statute since the commanders’ duty to take all necessary and reasonable measures would be limited to preventive measures. 4.2.4 The Nexus Requirement Under commission by omission, military superiors are liable for international crimes committed by their subordinates based on the failure to comply with their duty to prevent subordinates’ criminal conduct.219 To this end, it is required that the omission increases the risk of the commission of crimes by the subordinates to a high probability.220 This means that a causal nexus is required. Since Article 25 CPC generally only applies to the omission to prevent, this entails the same approach as taken by the PTC in Bemba, in which it was held that causality between the occurrence of the crime and the superior’s omission is only required for the commanders’ duty to prevent.221 As stated above, the actual scope of causation required by the ICC is not settled yet. Thus, the strict interpretation of causality under Article 25 CPC, meaning that the commander’s omission may not only facilitate the commission of the crime, does not hinder the JEP in interpreting the element of causation in line with the Rome Statute. 5

Concluding Remarks

With the closing of the preliminary examination in Colombia, the OTP concluded that the complementarity principle in Colombia is working.222 As has been shown, where no final judgment has been issued, such evaluation must depend on whether the legal provisions established to prosecute those alleged to have committed international crimes follow the rationale of the Rome Statute. For command responsibility, this means ‘to hold superiors criminally liable for the prohibited conduct of their subordinates for failing to fulfil a duty to prevent or repress the subordinates’ unlawful conduct or submit the matter to the competent authorities.’223 218 219 220 221 222 223

Ibid; Cote Barco (n 197) 93. Olasolo and Canosa Cantor (n 12) 84. Ibid 90. Bemba, PTC (n 40) [424]. ICC Press Release (n 3). Bemba, PTC (n 40) [405].

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A closer analysis of the legal framework of the Integrated System has shown that it is not the Peace Legislation alone which hinders the JEP to follow the rationale of Article 28(a) of the Rome Statute. While the provisions on the responsibility of superiors of the FARC-EP could be interpreted in a way that reflects the Rome Statute rationale, for the definition of criminal responsibility for Colombian military commanders, this article identifies the principle of legality under Colombian law as underlying reason for the differences to the Rome Statute standard. The principle of legality requires the criminalisation of command responsibility prior to the time over which the JEP exercises jurisdiction.224 As the JEP neither has direct recourse to the Rome Statute, nor has command responsibility been criminalised in domestic law prior to the Peace Legislation, the JEP is only left with two options when applying command responsibility: apply CIL or subsume command responsibility under the domestic mode of liability ‘commission by omission’. Given the prohibition of retroactivity, the provisions in the Peace Legislation de facto only serve as auxiliary elements for interpretation. Having recourse to CIL, as applied by the ad-hoc tribunals, allows for an interpretation consistent with the rationale of command responsibility. Under the Peace Legislation this approach is only applicable to FARC-EP superiors, as for commanders of the Colombian military the application of domestic law must prevail. However, whether CIL will be applied by the JEP in respect of the FARC-EP superiors is questionable and depends on the JEP’s interpretation of the law, as the CCC declared Article 25 CPC applicable to both superiors of FARC-EP and Colombian military commanders.225 While ‘commission by omission’ shows some similarities with the concept of command responsibility under the Rome Statute, the main difference between these modes of liability is that under Article 25 CPC, the superior is held liable for the subordinates’ offences because they are attributed to him or her for the failure to comply with his or her duty as a guarantor to avoid the result. As such, the commander must fulfil all elements of the crime, including the mens rea. In contrast, under Article 28(a) of the Rome Statute, a superior is not liable for the commission of the crimes, but for failing to comply properly with a duty of care imposed on him or her.226 Any differential treatment between FARC-EP superiors and those of the Colombian military is problematic per se given that, under the Rome Statute, 224 Ley No. 1957, Art. 10; Colombian Constitution, Art. 29. 225 C-674/2017, 387, C-80/2018, 552. 226 Kai Ambos, Der Allgemeine Teil des Völkerstrafrechts: Ansätze einer Dogmatisierung (1st edn, Duncker und Humbolt, 2002) 357, 366.

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the same standard must apply to military commanders and de facto military commanders.227 Further, the recourse to Article 25 CPC raises concerns given the significant differences to the rationale of the Rome Statute. Considering the analysis in this article, at least regarding the JEP’s application of command responsibility, the closing of the preliminary examination in Colombia seems premature. The OTP should have, as per the previous benchmark approach, awaited the implementation of the legal provisions on command responsibility.228 A final judgment on the responsibility of commanders of both FARC-EP and armed forces would have given more legal certainty about the JEP’s application of the Peace Legislation as ‘auxiliary elements’. Given the OTP’s new approach, as a minimum, the provisions in the Cooperation Agreement should be considered and followed carefully by the OTP when observing the justice process in Colombia. As stated in Articles 2–5 of said agreement, it is crucial to enhance communications between the Colombian judiciary, particularly the JEP, exchange best practices and relevant ICC jurisprudence and continue the efforts to achieve accountability. This should also include consideration of the reopening of the preliminary examination under Article 6 of the cooperation agreement, in the event that the Colombian judiciary fails to uphold the genuineness of the proceedings, for example by issuing decisions on the accountability of military commanders that do not reflect the rationale of Article 28(a) of the Rome Statute. 227 Triffterer and Arnold (n 40) [86–87]. 228 Cf Kleffner (n 23) 112.

7

The CJEU’s Reasoning in Slovenia v Croatia: A Dispute Ancillary to Another Dispute, but Which One? Jure Vidmar Abstract

Slovenia brought a case against Croatia before the Court of Justice of the European Union (CJEU) on the basis of Article 259 TFEU alleging certain infringements of European Union law. Such infringements allegedly resulted from Croatia’s non-compliance with the Arbitral Award delivered by the Arbitral Tribunal established under the Arbitration Agreement concerning the land and maritime boundary between the two states. The CJEU decided that it lacked jurisdiction in this case. This article scrutinises the CJEU’s reasoning concerning its jurisdiction and argues that the dispute brought by Slovenia was ancillary to another dispute. Although the CJEU may have been right to decline to rule in this case, this article interrogates the legal reasoning on the basis of which the CJEU arrived at this conclusion. The core premise of the decision is that the Union is not a party to the Arbitral Agreement and the Agreement was therefore not binding on the Union. The focus on the Arbitral Agreement rather than Arbitral Award enabled the CJEU to avoid the elephant in the room: the question of whether the Arbitral Award was valid. This article demonstrates that in previous practice of the CJEU and other international courts and tribunals authoritative pronouncements on boundary disputes have constituted legal facts which were taken into account in subsequent judicial practice. In Slovenia v Croatia, the CJEU did not follow this practice and chose to focus on the treaty which constituted the tribunal. Although the CJEU may have been right to refuse to hear on the merits this ancillary dispute, the focus on the Arbitral Agreement rather than Arbitral Award was not persuasive.

Keywords Slovenia v Croatia – dispute settlement – jurisdiction – general principles – res judicata

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_008

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Introduction

On 31 January 2020, the Court of Justice of the European Union (CJEU) declared that it lacked ‘jurisdiction to rule in the … action [brought by Slovenia against Croatia] on an alleged failure to comply with the obligations arising from the arbitration agreement and the arbitration award, which are the source of the Republic of Slovenia’s complaints regarding alleged infringements of EU law.’1 Slovenia brought the action on the basis of Article 259 of the Treaty on the Functioning of the European Union (TFEU). The alleged infringements resulted from Croatia’s non-compliance with the Arbitral Award delivered by the Arbitral Tribunal established under the Arbitration Agreement concerning the land and maritime boundary between Croatia and Slovenia. For Slovenia, the Arbitral Award is valid, while in Croatia’s view the Arbitral Tribunal no longer existed at the moment when it delivered the Award.2 Slovenia’s claim was not directly concerned with the validity of either the Arbitral Agreement or the Arbitral Award but with alleged violations of primary and secondary Union law resulting from Croatia’s non-implementation of the Arbitral Award. The position of the Court of Justice was that any alleged violations of the Union law are merely ancillary to possible violations of an international treaty (i.e. the Arbitration Agreement between Croatia and Slovenia) to which the Union is not a party. Referring to European Schools (the 2010 Commission v Belgium Judgement),3 the Court of Justice established that it ‘has already held that it lacks jurisdiction to rule on the interpretation of an international agreement concluded by Member States whose subject matter falls outside the areas of EU competence and on the obligations arising under it for them.’4 At the end of the judgment, the Court indicated that the parties could consider bringing the dispute by special agreement under Article 273 TFEU.5 The Court’s position that it did not wish to hear this case on the merits is, in principle, defensible. The alleged violations of EU law may indeed be ancillary to another problem or dispute between the two member states concerned. The Court’s reasoning, although not necessarily the outcome, is nevertheless 1 Case C-457/18 Republic of Slovenia v Republic of Croatia [2020] CJEU, Judgment of the Grand Chamber [104] (hereinafter: Slovenia v Croatia). 2 See Sam Morgan, ‘Croatia and Slovenia continue maritime dispute after arbitration ruling’ (Euractiv, 4 July 2017) accessed 18.11.2022. 3 Slovenia v Croatia [91]. 4 Ibid. 5 Ibid [109].

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problematic. The cornerstone of the Court’s argumentation is that the Union is not a party to the Arbitration Agreement and that, generally speaking, it is up to member states to define their territories.6 Since Slovenia’s claims against Croatia are ancillary to the Arbitration Agreement and the underlying boundary dispute, the claims fall outside of the scope of Union law. But why does the Arbitration Agreement still matter at this stage and not the Arbitration Award as a new legal fact? The Court makes a highly problematic argument that this is so because effect has never been given to the Arbitration Award.7 This article critically assesses the Court’s reasoning and argues that the Court may well have been right in holding that Slovenia’s claims were ancillary to another matter or dispute of public international law between the two member states, but that the Court unpersuasively identified the underlying matter to which Slovenia’s claims ought to have been ancillary. This has led to a series of doctrinally highly problematic assumptions in the Court’s reasoning. 2

Background

Croatia and Slovenia are former republics of the Socialist Federal Republic of Yugoslavia (SFRY). They both declared independence on 25 June 1991.8 Under international law, they became independent states on 8 October 1991.9 The boundary between the two newly independent states followed the pre-existing internal delimitation line within the SFRY.10 A few areas of land boundary remained contested.11 Furthermore, the maritime boundary between these two former Yugoslav republics had never been established. On becoming independent, the two new states concerned referred to different principles of maritime delimitation and claimed different delimitation lines.12 Several attempts at solving the dispute by diplomatic means failed.13 In the meantime, Slovenia joined the European Union (EU) on 1 May 2004. Croatia joined the Union on 1 July 2013. In 2008, Slovenia blocked Croatia’s accession 6 7 8

Ibid [105]. Ibid [106]. See Jure Vidmar, Democratic Statehood in International law: The Emergence of New States in post-Cold War Practice (Hart 2013) p. 177. 9 Ibid 93–96. 10 Ibid 225–230. 11 See Tamar Meshel, ‘The Croatia v. Slovenia Arbitration: The Silver Lining’ [2017] 16 The Law and Practice of International Courts and Tribunals 288. 12 Ibid. 13 Ibid.

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negotiations due to the unresolved boundary dispute.14 The EU and the Swedish Council Presidency offered good offices and the two states concluded the Arbitration Agreement, signed at Stockholm on 4 November 2009.15 The parties to this treaty were Croatia and Slovenia, while the Swedish Council Presidency signed it as a witness and not as a party.16 Slovenia subsequently held a referendum on the ratification of the Arbitration Agreement which was endorsed by a majority of 51.48 percent.17 The Arbitration Agreement established arbitration proceedings under the auspices of the Permanent Court of Arbitration (PCA). Five arbitrators were specified by the Agreement itself; among them one was appointed by Croatia and one by Slovenia.18 The tasks of the Arbitration Tribunal and the sources of law stretched beyond the formal sources of international law specified in Article 38(1) of the Statute of the International Court of Justice (ICJ). According to Article 3 of the Arbitration Agreement, the Arbitration Tribunal was required to determine ‘the course of the maritime and land boundary between the Republic of Slovenia and the Republic of Croatia, Slovenia’s junction to the High Sea [sic], and the regime for the use of the relevant maritime areas.’19 It is thus obvious that Slovenia as an EU member state was able to use some leverage over Croatia. Indeed, the Arbitration Agreement presumed that Slovenia must have had ‘junction to the High Sea’ [sic],20 so the Arbitral tribunal was to determine where and in what manner such a ‘junction’ existed, but not whether it existed at all. Article 4(b) of the Arbitration Agreement specified the sources of law applicable in the arbitral proceedings. The Tribunal was tasked to apply ‘international law, equity and the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances

14 15

16 17 18 19 20

See Elitsa Vucheva, ‘Slovenia to block Croatia EU accession talks’ (EU Observer, 18 Decem­ ber 2008) accessed 18.11.2022. See Velislava Hristova, ‘The Border of Slovenia and Croatia – Where the CJEU Reached the Frontier of its Jurisdiction’ (Kluver Arbitration Blog, 28 April 2020) accessed 18.11.2022. Ibid. See ‘Slovenia backs Croatia border deal in referendum vote’ (BBC News, 6 June 2010), accessed 18.11.2022. See Arbitration between the Government of the Republic of Slovenia and the Government of the Republic of Croatia (2009), Article 2, at (hereinafter: the Arbitration Agreement). Ibid Article 3. Ibid.

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for the determinations referred to in Article 3 [of the Arbitration Agreement].’21 It is probably fair to say that the choice of law and the objectives specified by the Arbitration Agreement were in Slovenia’s favour. Not only was the Arbitration Tribunal explicitly tasked to determine Slovenia’s ‘junction’ with the High Seas, but the choice of the sources of law, including equity, also indicates that the Arbitration Tribunal was invited to look for a unique solution not necessarily based exclusively in the formal sources of international law. One can speculate that the reason for seeking a creative solution was the complicated geography of the disputed bay which makes Slovenia’s claim for a ‘joint’ with the High Seas largely implausible if only formal sources of international law were to be used to draw the maritime lines.22 It is thus not hard to imagine that Croatia was not happy with the Arbitration Agreement and that it was a difficult concession it had to make on its way to EU membership. In 2015, secret recordings were released in the media of a conversation between the Slovenian agent acting in the arbitral proceedings and the arbitrator appointed by Slovenia.23 Croatia claimed that the communication constituted a material breach of the treaty (i.e. the Arbitration Agreement) in the sense of Article 60 of the Vienna Convention on the Law of Treaties (VCLT) and withdrew from the arbitration.24 In Croatia’s view, the treaty has thus been terminated. Since the Arbitral Tribunal was created by this treaty, its termination would also mean that the Arbitral Tribunal ceased to exist. Slovenia admitted the wrongdoing but insists that its conduct did not void the treaty and that the Arbitral Tribunal could still complete its mandate, subject to the application of certain procedural remedies.25 Subsequently, the implicated arbitrator appointed by Slovenia and the arbitrator appointed by Croatia both resigned from the Tribunal.26 They were replaced by other arbitrators, nationals of third states.27 The reconstituted Arbitral Tribunal initially delivered its Partial Award on 30 June 2016 in which it decided on its own jurisdiction. Referring to the kompetenz-kompetenz 21 Ibid Article 4. 22 See Alexia Solomou, ‘A Commentary on the Maritime Delimitation Issues in the Croatia v. Slovenia Final Award’ (EJIL:Talk! 15 September 2017) accessed 18.11.2022. 23 See Arman Sarvarian and Rudy Baker, ‘Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal’ (EJIL:Talk!, 28 July 2015) accessed 18.11.2022. 24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid.

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principle, the Arbitral Tribunal decided that it had jurisdiction to continue its work in a new formation and render a decision on the merits. In so doing, the Arbitral Tribunal notably stated that ‘in the absence of such a principle [kompetenz-kompetenz], any party to an arbitration, in objecting to the jurisdiction of a tribunal, would be able to stop the proceedings and thus could escape its obligation to arbitrate.’28 Croatia refused to take part in the continuation of the proceedings, insisting that the treaty had been terminated and that no Arbitral Tribunal existed in law as a consequence. The Final Award was delivered on 29 June 2017.29 Croatia immediately announced that it did not consider itself to be bound by it and that it did not intend to implement it. Conversely, Slovenia started to implement the new boundary regime. Unhappy with Croatia’s reluctance to accept the Arbitral Award, Slovenia turned to the CJEU, claiming that non-implementation of an internationally established boundary has severe consequences for Croatia’s and Slovenia’s obligations under EU law. 3

The Jurisdictional Scope and Slovenia’s Claim before the CJEU

3.1 The Scope of Article 259 TFEU Slovenia brought its case under Article 259 TFEU after the Commission decided against taking action against Croatia.30 Article 259(1) TFEU reads: ‘A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.’31 It is thus clear that the jurisdictional scope of Article 259 TFEU is limited to Union law and does not extend to general public international law. It is questionable, however, whether it is literally limited to the Treaties or whether it also extends to general principles of law. 28

Case 2012-04 In the Matter of an Arbitration under the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed on 4 November 2009, Partial Award [2016] PCA 166428 [149] (hereinafter: the Partial Award). 29 Case 2012-04 In the Matter of an Arbitration under the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed on 4 November 2009, Final Award [2017] PCA 200993 (hereinafter: the Arbitral Award). 30 Slovenia v Croatia (n 1) [1]. 31 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2016] OJ C202/1 (hereinafter: TFEU) Article 259(1).

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The Article 259 wording is indeed narrower than, for example, that in Article 263(2) TFEU which, inter alia, extends judicial review to an ‘infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.’32 When it comes to interstate proceedings under Article 259 TFEU, infringements of general principles of law are therefore not subjected to judicial review. But as Koen Lenaerts, writing extra-judicially, and José Gutiérrez-Fons argue: ‘[G]eneral principles of EU law are relevant [even within Article 259] because the ECJ must ensure that in the interpretation and application of the Treaties the law is observed, so that in the substantive scope of application of EU law, national measures are to conform to the general principles of that law.’33 In other words, when interpreting the Treaties, the Court is still bound by general principles of law, although this source of law is not an independent ground for judicial review. 3.2 Slovenia’s Claim and Croatia’s Response In its claim, Slovenia alleged the following violations of primary and secondary Union law: (i) Article 4(3) TEU, because ‘Croatia has prevented the Republic of Slovenia from complying with its obligation to implement EU law fully throughout its territory;’34 (ii) ‘the principle of the rule of law, enshrined in Article 2  TEU,’35 because Croatia failed to implement an internationally adjudicated arbitral award; (iii) Article 5(2) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, because, Slovenia claimed, the non-implementation by Croatia of the arbitral award resulted in the refusal of ‘Slovenian nationals the right to fish in the Slovenian territorial sea and has prevented the Republic of Slovenia from enjoying rights, such as the adoption of measures for the conservation and management of fish stocks, provided for by that regulation;’36 (iv) the ‘Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy … in that the Republic of Croatia has prevented the Republic of Slovenia from carrying out the task assigned to it under that system, as well as the monitoring, control and inspection of fishing vessels and, when inspections reveal any breaches of the rules of the common fisheries policy, procedures and enforcement measures against the persons responsible for 32 Ibid Article 263(2) (emphasis added). 33 Koen Lenaerts and Jose A Gutiérrez-Fons, ‘The constitutional allocation of powers and general principles of EU law’ [2010] 47 Common Market Law Review 1629, 1650. 34 Slovenia v Croatia (n 1) [1]. 35 Ibid. 36 Ibid.

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the breach, and in that it has itself exercised the rights which those regulations grant to the Republic of Slovenia as the coastal State;’37 (v) ‘Articles 4 and 17, read in conjunction with Article 13, of Regulation (EU) 2016/399 … on a Union Code on the rules governing the movement of persons across borders;’38 and (vi) ‘Articles 2(4) and 11(1) of Directive 2014/89/ … establishing a framework for maritime spatial planning … in that it has adopted and implemented the “Spatial planning strategy of the Republic of Croatia”’.39 Croatia in its response argued that the Court should not hear the case on the merits and instead declare the case inadmissible. Its response was based on three arguments: first, ‘Slovenia’s contentions that it infringed obligations owed by it under EU law are ancillary to settlement of the dispute concerning the validity and legal effects of the arbitration agreement and the arbitration award.’40 Croatia here referred to the European Schools judgment of 30 September 2010 (Commission v Belgium) in which the Court pronounced that it lacked ‘jurisdiction to rule on the infringement of obligations arising from EU law if those obligations are ancillary to prior settlement of another dispute that does not fall within the jurisdiction of the Court.’41 Second, ‘the real subject matter of the dispute between the two States relates to the validity and legal effects of the arbitration agreement, which does not form an integral part of EU law … and to the validity and any legal consequences of the arbitration award, which has not yet been implemented.’42 Finally, Croatia argued that ‘the Court lacks jurisdiction under Article 259 TFEU to rule on the validity and effects of either the arbitration agreement, which is an international agreement not forming an integral part of EU law.’43 Aware of the jurisdictional limitations posed by Article 259 TFEU, it is notable that Slovenia tried to prove that the dispute at hand was a question of Union law whereby the previous delimitation decision of an Arbitral Tribunal was to be taken into account. On the other hand, Croatia tried to prove that Slovenia’s claims were ancillary either to the Arbitration Agreement, which is not a part of Union law (the European Schools analogy), or to the Arbitration Award which has never been enforced under public international law. While the Court previously defined a difference between an ancillary dispute and legal facts that need to be taken into account in judicial proceedings, it will 37 38 39 40 41 42 43

Ibid. Ibid. Ibid. Ibid [75]. Ibid. Ibid [76]. Ibid [77].

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be argued below that in the present case the Court blurred this line. The boundary dispute is surely outside of the jurisdictional scope of Article 259 TFEU, but this does not mean that the Court is not bound by the general principle of res judicata or other generally applicable legal facts. 4

The Advocate General’s Opinion

Central to the Advocate General’s Opinion is the position that Slovenia’s arguments were, formally speaking, based on Union law, but in reality accessory to an instrument of public international law (i.e. the Croatia-Slovenia Arbitration Agreement) which did not fall within the material scope of the Court’s jurisdiction.44 This means that any violation of Union law is merely ancillary to an alleged violation of the Arbitral Agreement.45 In the Advocate General’s view, the Union is in principle bound by international law, but in rather limited circumstances: (i) where the Union itself has concluded an international agreement; (ii) where the Union takes over certain competences that were previously exercised by member states on the basis of a certain international agreement; and finally (iii) the Union has to exercise its powers in line with the rules of customary international law.46 Since the starting point for the Advocate General is the Arbitral Agreement rather than the Arbitral Award, the matter indeed falls outside of the purview of Union law. This is because the Union is not a party to the Arbitral Agreement and this bilateral Agreement cannot be reflective of international custom. But the matter could nevertheless fall within the purview of Union law, had the starting point been the Arbitral Award rather than the Arbitration Agreement. If the Arbitral Award were accepted as being valid, it could constitute res judicata which the Court of Justice would need to take into account as a legal fact, either under the doctrine of general principles of law or perhaps as international custom. The Advocate General did consider this possibility: D’une part, je suis d’avis que, en principe, il serait possible d’admettre la thèse de la République de Slovénie selon laquelle une décision émanant des juridictions internationales reconnues, telles que la

44

Case C-457/18 Republic of Slovenia v Republic of Croatia [2020] CJEU, Opinion of Advocate General Priit Pikamäe [106] (hereinafter: Advocate General’s Opinion). 45 Ibid [164]. 46 Ibid [104].

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Cour internationale de justice [ICJ]  … ou la CPA [Permanent Court of Arbitration], constituerait un fait juridique pour notre Cour (res judicata).47 Had the Court accepted that the Arbitral Award was res judicata and as such relevant for this case, the argument that Slovenia’s claim was ancillary to the Arbitration Agreement would have fallen away. Indeed, the Arbitral Agreement would have been executed and the Arbitral Award would have created a new international legal fact. But the Advocate General pre-empted this possibility with the highly problematic argument that the Arbitral Award has not been enforced: [D]ans l’histoire du droit international et même à l’heure actuelle, la situation dans laquelle l’une des parties à la procédure arbitrale ne reconnaît pas la validité d’une sentence rendue par un tribunal arbitral ou refuse de l’exécuter n’est pas inconnue. En effet, quand bien même il n’existe pas de mécanisme obligatoire de contrôle des sentences arbitrales interétatiques, un État contestant une telle sentence peut soumettre le différend concernant la validité de ladite sentence à la CIJ.48 The Opinion here conflates legal validity of a judicial decision and compliance with this decision, and comes close to the view of 19th-century legal philosopher John Austin who argued that international law was not law properly so called as it lacked an effective enforcement mechanism.49 In the Austinian view, international law is not positive law but falls in the category of positive morality and ‘laws by a close analogy’.50 This view has been rejected by most contemporary writers as being too simplistic and based on an idealised view of the efficacy of domestic (criminal) law.51 In reality, it is no rare occurrence in any legal system, not even in domestic ones, that a judicial decision cannot be enforced for one reason or another. But the fact that it cannot be enforced does not call into question the validity of the judicial decision at stake. To put it simply, it is against general legal theory to claim that a judicial decision that has not been enforced does not constitute a legal fact (res judicata). Legal validity of a judicial decision is one thing, its enforcement quite another. 47 48 49 50 51

Ibid [142]. Ibid [146]. John Austin, The Province of Jurisprudence Determined (John Murray 1832) 188. Ibid. See James B Scott, ‘The Legal Nature of International Law’ (1905) 5 Colombia Law Review 124, 134.

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As will be argued below, it is plausible to claim that the Croatia/Slovenia Arbitral Award may not be valid for other reasons. But it is doctrinally difficult to accept that it is not valid because it has not been enforced or that the ICJ is the enforcement mechanism of international arbitrations the way the Advocate General appears to have suggested. 5

The Judgment

The judgment follows the Advocate General’s Opinion. The core premises of the argumentation are that (i) it is up to the member states, not the Union, to define their respective territories in accordance with the rules of public international law; (ii) the parties to the Arbitration Agreement are Croatia and Slovenia, but not the Union; (iii) any relevance for the obligations under EU treaties are therefore merely ancillary to the Arbitration Agreement.52 These premises put Slovenia’s claims against Croatia outside of the purview of Article 259 TFEU. What could potentially still bring Slovenia’s claims within the ambit of Article 259 TFEU is if the Arbitral Award were to be taken as res judicata. This would mean that the starting point for the Court’s assessment should have been the Arbitral Award rather than the Arbitral Agreement. But the Judgement pre-empts this argument and makes a reference to the Advocate General’s Opinion holding that (iv) the Arbitration Award was never enforced and is thus not res judicata.53 The article will now critically assess these premises and contextualise them within general legal doctrine and CJEU’s own case law. It will be argued that the Court’s approach shows a significant amount of creativity to make the starting point of its assessment the Arbitral Agreement rather than the Arbitral Award. 5.1 State Territory Is Not a Matter Falling within Union Law One of the principle arguments on which the Court’s reasoning rests is that it is not on the Union to define the territories of its member states. The Court held: It should be added in this regard that, in the absence, in the Treaties, of a more precise definition of the territories falling within the sovereignty of the Member States, it is for each Member State to determine the extent and limits of its own territory, in accordance with the rules of public international law … Indeed, it is by reference to national territories that 52 Slovenia v. Croatia (n 1) [104]. 53 Ibid [106].

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the territorial scope of the Treaties is established, for the purposes of Article 52 TEU and Article 355 TFEU.54 The Court here referred to its prior case of Aktienbolaget where it held that ‘[i]n the absence, in the Treaty, of a more precise definition of the territory falling within the sovereignty of each Member State, it is for each of the Member States to determine the extent and limits of that territory, in accordance with the rules of international public law.’55 While one can certainly agree with this finding, the problem is that no one asked the CJEU to define the extent and limits of the territories of Croatia and Slovenia. The Court was rather expected to take into account certain territorial facts of public international law as adjudicated by another judicial organ. This is a very important difference that the Court blurred too easily. It may well be contested whether the Arbitral Tribunal (still) was the competent authority to render the boundary dispute decision when it did so, but that is a different question. Furthermore, the Court in Aktienbolaget drew a significantly less strict line between Union law and public international law than it tried to suggest in Slovenia v Croatia. In the former case, the Court conducted a thorough assessment of the applicable rules of public international law. It considered the United Nations Convention on the Law of the Sea (UNCLOS), to which the Union is not a party, and established, inter alia, that ‘the sovereignty of the coastal State over the exclusive economic zone and the continental shelf is merely functional and, as such, is limited to the right to exercise the activities of exploration and exploitation laid down in Articles 56 and 77 [UNCLOS].’56 In other words, the Court analysed an international treaty to which the Union is not a party in order to establish whether a state territory extended to the exclusive economic zone and concluded that it did not. In Aktienbolaget the Court therefore clarified the underlying question of public international law in order to establish whether certain Union legislation applied in a certain geographic area. The Court did not simply say that the dispute under EU law was ancillary to the interpretation of the legal status of the exclusive economic zones under UNCLOS, so this was not a matter of Union law. Rather, the Court in Aktienbolaget identified the applicable legal facts under public international law and then interpreted Union law taking these facts into account. Whereas in Aktienbolaget the Court itself interpreted 54 Ibid [105]. 55 Case C-111/05 Aktiebolaget NN v Skatteverket [2007] ECR I-02697, CJEU, Judgment of the Court [54] (hereinafter: Aktienbolaget). 56 Ibid [59].

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a treaty to which the Union is not a party, in Slovenia v Croatia, the Court would not even need to go that far. It could only take into account the Arbitral Award that has already been rendered by another judicial body. But the Court of Justice remained focused on the Arbitral Agreement rather than the Award. At the same time, the Court tried to immunise Union law from any public international law influence and did not engage in the Aktienbolaget-like treaty interpretation exercise in order to clarify the underlying international legal facts. 5.2 The Focus on the Arbitral Agreement The Court’s reasoning departs from this crucial premise: It is clear from that case-law that the Court lacks jurisdiction to rule on an action for failure to fulfil obligations, whether it is brought under Article 258 TFEU or under Article 259 TFEU, where the infringement of provisions of EU law that is pleaded in support of the action is ancillary to the alleged failure to comply with obligations arising from … an agreement [to which the Union is not a party].57 The position that international treaties to which the Union itself is not a party are not automatically part of EU law is not controversial. What is controversial is the Court’s choice to go all the way back to the Arbitration Agreement, dismiss the Arbitral Award, and equate the situation with European Schools. 5.3 The (Ir)relevance of European Schools The Court drew a parallel with its 2010 judgment in European Schools in which the Commission alleged a violation by Belgium of its obligations under the Statute of the European Schools (a treaty of international law) read in conjunction with what was then Article 10 of the Treaty Establishing the European Community (hereinafter: EC).58 The Court of Justice established that the Union itself was not a party to the Statute of the European Schools and any violations of Article 10 EC were thus merely ancillary to a possible violation of the Statute of the European Schools.59 Even the Commission itself explained that ‘it has never relied on Article 10 EC per se in this case, that is, independently of the [Statute of the European Schools].’60 On this basis, the Court decided 57 Ibid [92]. 58 Case C-132/09 European Commission v Kingdom of Belgium [2010] ECR I-08695, CJEU, Judgment of the Court [1] (hereinafter: European Schools). 59 Ibid [40]. 60 Ibid [41].

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that it lacked jurisdiction in European Schools, as the Union was not a party to the underlying international treaty and any Article 10 EC violation could have been merely ancillary to violations of the treaty not falling within the Court’s jurisdiction.61 In European Schools, both sides agreed that they actually had a dispute under a treaty external to Union law.62 This was quite different in Slovenia v Croatia. It was Croatia’s interpretation that the parties (still) had a dispute over the status of the Arbitration Agreement and that the case was analogous to European Schools. This view was also adopted by the Court,63 but such an assumption is not straightforward. Unlike the Commission in European Schools, Slovenia did not explicitly base its claims in a treaty external to Union law. It is rather that Slovenia assumed certain international legal facts, while basing its claims in primary and secondary Union law.64 But even more importantly, the nature of the international treaties at stake were quite different. The Arbitration Agreement between Croatia and Slovenia established an Arbitral Tribunal tasked to render a legally binding decision. The Statute of the European Schools relevant in the Commission v Belgium case was a different kind of a treaty. It did not lead to any judicial decisions and was thus much different in nature if compared to the Arbitration Agreement. Such a difference in the object and purpose of a treaty is crucial. In Senegal v Guinea Bissau, the ICJ held: [W]hen States sign an arbitration agreement, they are concluding an agreement with a very specific object and purpose: to entrust an arbitration tribunal with the task of settling a dispute in accordance with the terms agreed by the parties, who define in the agreement the jurisdiction of the tribunal and determine its limits.65 Unlike ordinary treaties, arbitration agreements create treaty mechanisms – i.e. arbitration tribunals – tasked to render arbitral awards. When an arbitral award is rendered, the treaty has been executed and the arbitral award constitutes a new legal fact, it becomes res judicata. In this vein, the ICJ accepted the validity of the Arbitral Award between Nicaragua and Honduras rendered

61 Ibid [44] and [53]. 62 Ibid [41]: ‘[T]he Commission expressly states that it has never relied on Article 10 EC per se in this case, that is, independently of the Establishment Agreement.’ 63 See supra notes 41 and 58. 64 See supra notes 34–39. 65 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) [1991] ICJ Rep 53 [49].

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in 1906 by the King of Spain.66 It is thus erroneous to equate the Statute of the European Schools with an arbitration agreement. Where treaties establish judicial bodies tasked to render judicial decisions, such decisions constitute separate legal facts. They become res judicatae and their legal authority does not rest on the treaty that had established the judicial body. Moreover, even the fact that the EU itself was not a party to the Arbitration Agreement, so formalistically speaking the Arbitral Award is not res judicata for the Union, does not make the Arbitral Award irrelevant for the EU and the CJEU. Indeed, international legal doctrine confirms that judicial decisions, at least where territorial delimitation is concerned, have legal effects even on third parties and beyond the res judicata doctrine sensu stricto. In the frontier dispute between El Salvador and Honduras, the ICJ decided that it should take into account a pre-existing judicial decision of the Central American Court of Justice rendered in 1917.67 This was despite the fact that the parties in the 1917 case before the Central American Court of Justice were El Salvador and Nicaragua, while the parties in the 1992 proceedings before the ICJ were El Salvador and Honduras. The ICJ thus rightly noted that the 1917 judicial decision was res judicata only for one of the parties involved in the 1992 proceedings, but not for the other.68 It nevertheless continued that ‘the Chamber [of the ICJ] should take the 1917 Judgement into account as a relevant precedent decision of a competent court.’69 The ICJ thus confirmed that a previous judicial decision of a competent court should be taken as a relevant precedent and it did so even where that decision was not res judicata in relations between the parties in the proceedings. It will now be shown that the European Court of Justice in another case, had also adopted an approach quite similar to the ICJ’s in El Salvador v Honduras. 5.4 The (Ir)relevance of Vignoble Psagot In Vignoble Psagot, the Court of Justice referred to the ICJ’s Wall Advisory Opinion to establish that ‘[t]he West Bank is a territory whose people, namely the Palestinian people, enjoy the right to self-determination.’70 The Court further noted 66 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [2007] ICJ Rep 659 [309]. 67 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment of 11 September 1992 [1992] ICJ Rep 351 [402]. 68 Ibid. 69 Ibid [403]. 70 Case C-363/18 Organisation juive européenne and Vignoble Psagot Ltd v Ministre de l’Économie et des Finances [2019] CJEU, Judgment of the Court [35] (hereinafter: Vignoble Psagot).

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that the settlements established in some of the territories occupied by the State of Israel … give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law, as codified [by Article 49 of the Fourth Geneva Convention], as noted by the International Court of Justice  … in its Advisory Opinion of 9 July 2004  … Moreover, that policy has been repeatedly condemned by the United Nations Security Council … and by the European Union itself. In that context, it should be underlined that, in accordance with Article 3(5) TEU, the European Union is to contribute to the strict observance of international law, including the principles of the United Nations Charter.71 The Court then established a firm premise that the West Bank settlements have been established in violation of international law, which could play an important role in consumer decisions whether or not to purchase a product originating in that area.72 Notably, Vignoble Psagot was a preliminary reference proceeding under Article 267 TFEU which in the relevant part limits the Court’s jurisdiction to ‘the interpretation of the Treaties’.73 This is close to the phrasing in Article 25974 and does not contain an Article-263-like extension to ‘any rule of law’.75 The Court was obviously satisfied that there was some connection to international law and UN Charter via Article 3(5) TEU. The UN Charter indeed makes two rather generic references to self-determination,76 but it also dedicates its whole Chapter VI to pacific settlement of disputes,77 and yet the Court did not see a similar connection in Slovenia v Croatia. In Vignoble Psagot, the Court of Justice took its position on a matter that crucially depended on a prior assessment of what constitutes the territory of the West Bank and whether Israeli settlements in that area violate certain rules of international (humanitarian) law. In this case, the Court of Justice did not say that ‘the interpretation of Regulation … 1169/2011 … on the provision of food information to consumers’78 was merely ancillary to something outside of the scope of Union law. And neither did it say that the Fourth Geneva 71 72 73 74 75 76 77 78

Ibid [48]. Ibid [57]. TFEU (n 31) Article 267. Cf. supra (n 31). Cf. TFEU (n 31) Article 263. See Charter of the United Nations (1945) 1 UNTS XVI, Articles 1 and 55. Ibid Chapter VI. Cf. Vignoble Psagot (n 70) [1].

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Convention,79 the UN Charter80 and the ICJ Statute (i.e. the treaty establishing the ICJ)81 did not matter in this case because the EU was not a party to these treaties. Moreover, an ICJ advisory opinion is by definition never res judicata and thus not binding either on the Union or any other actor.82 Finally, the dispute over the West Bank has never been settled under international law, neither judicially nor politically. In Vignoble Psagot, the Court of Justice was nevertheless willing to refer to the ICJ’s Advisory Opinion and generically recall certain non-binding resolutions of a UN political body (i.e. the Security Council).83 In this sense, the Court of Justice took an approach much closer to the ICJ’s doctrine in El Salvador v Honduras.84 Even if a certain pronouncement on a territorial matter by a competent court is not res judicata, it is still a relevant precedent and other judicial bodies need to take it into account.85 A previous judicial decision of a competent court constitutes an objective legal fact on which the Court of Justice needs to rely. In terms of sources of international law, it could be said that a pronouncement (although not necessarily a binding decision) on territorial delimitation by a competent judicial body either reflects customary international law governing delimitation or a general principle of law. The Court’s approach in Slovenia v Croatia was much more restrictive than it had been in some of its previous cases. Unlike in the situation of Israel and the West Bank, in the case of Slovenia and Croatia a legally binding international judicial decision possibly existed, but the Court refused to take it into account. If the Court of Justice was afraid in Slovenia v Croatia that its interpretations of Union law could have had too wide implications under public international law, the irony is that in Vignoble Psagot the Court was willing to go much further into the public international law terrain. In the latter situation, no competent international judicial body had ever decided on the dispute over the territorial status of the West Bank and Israeli settlements. In the absence of such a legal authority, the Court of Justice was, inter alia, willing to take into account the ICJ’s non-legally-binding Advisory Opinion. In Slovenia v Croatia, the Court of Justice could have taken into account the pre-existing Arbitral Award delivered by an Arbitration Tribunal. Had the Court made this choice,

79 80 81 82 83 84 85

Cf. ibid. [48]. Cf. ibid. See Statute of the International Court of Justice (1946) UKTS 67 (hereinafter: ICJ Statute). See ibid Article 65. See supra n 71. Cf. supra (n 66). Cf. supra (n 69).

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Slovenia’s claims would have become pure questions of Union law without any need to discuss the boundary dispute. But the Court of Justice did not choose to take the Arbitral Award as a legal fact. Instead, it returned to the Arbitral Agreement and saw the case as being similar to Commission v Belgium rather than Vignoble Psagot.86 In order to further justify its choice of returning to the Arbitral Agreement which was central for the finding that Slovenia’s claims were ancillary to a treaty to which the Union is not a party, the Court made a further problematic argument that the Arbitral Award in any case is not a legal fact because it has not been enforced. The Judgment adopted the Advocate General’s highly problematic Austinian understanding of international law by stating that ‘it is not in dispute, as the Advocate General has also observed … that effect has not been given to the arbitration award.’87 If the Arbitral Award has been rendered by a competent tribunal, it does not matter whether or not it has been given effect. It is a legal fact and as such relevant. It was demonstrated above that the Court’s view is inconsistent with general legal theory. Moreover, the Court of Justice itself took a much different approach with regard to the West Bank where it obviously did not matter that the ICJ’s observations in the Wall Advisory Opinion have not been followed in practice. It will be now demonstrated that there is also a stark contrast between the path taken by the Court in Slovenia v Croatia and the Court’s own reasoning in Polisario. The Consequences of an Unenforced Judicial Decision: A Contrast with Polisario The Court of Justice in Polisario took great pains to formalistically prove that the EU-Morocco Trade Liberalisation Agreement only applies to Morocco but not to Western Sahara, although in practice Western Sahara is occupied by Morocco.88 Polisario was an Article 263 TFEU case that was first heard by the General Court which decided that Front Polisario met the stringent test of direct and individual concern and thus had standing before the CJEU.89 But the Polisario Front could only meet that test if the EU-Morocco Trade Liberalisation

5.5

86 Cf. supra (n 58). 87 Slovenia v Croatia (n 1) [106]. 88 See Case C-104/16 P Council v Front Polisario [2016] CJEU, Judgment of the Court (hereinafter: Polisario). 89 See Eva Kassoti, ‘The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration’ (European Papers, 23 March 2017) accessed 24.11.2022.

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Agreement were applicable not only to the internationally recognised territory of Morocco but also to the occupied territory of Western Sahara.90 The Trade Liberalisation Agreement provided that it applied to the territory of Morocco, but did not specify whether or not it also applied to the territory of Western Sahara.91 It was argued in the proceedings before the General Court that it was a well-known fact that in practice Morocco applies its agreements with the EU also to Western Sahara,92 and the General Court took its position based more on this factual reality rather than the territory’s formal legal status under international law. The General Court reasoned: It must also be recalled that there is a divergence between the respective views of the European Union and the Kingdom of Morocco as to the international status of Western Sahara. If the European Union’s view is [that Western Sahara is not a part of Morocco] it is common ground that the Kingdom of Morocco has a totally different view. In its opinion, Western Sahara is an integral part of its territory.93 On appeal, the Court of Justice did not uphold the General Court’s ‘effectivesituation-approach’ and disagreed with the assumption that the Trade Libera­ lisation Agreement was applicable to Western Sahara, which was the premise on which Polisario’s standing was founded: In the present case, although the General Court found, in paragraph 3 of the judgment under appeal, that Western Sahara had been included since 1963 on the list of non-self-governing territories within the meaning of Article 73 of the UN Charter, it did not, however, draw the consequences of the status of Western Sahara under international law as regards the inapplicability of the Association Agreement to that territory.94 What mattered for the Court of Justice was Western Sahara’s status under international law which is de jure indeed separate from that of Morocco, although Western Sahara is de facto administered by Morocco and factual evidence exists that Morocco is indeed also applying the treaty in question to Western Sahara. The Court indeed noted that ‘although  … [the Trade Liberalisation 90 91 92 93 94

Ibid. Ibid. T-512/12 Council v Front Polisario [2015] CJEU, Grand Chamber [77]. Ibid [100]. Polisario (n 88) [93].

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Agreement] was applied in some cases to products originating in Western Sahara, that application had occurred [only] “de facto”.’95 It was the international legal situation de jure that mattered to the Court and this is that Western Sahara is not a part of Morocco under international law. In making this pronouncement, the Court of Justice attached significant importance to the ICJ’s Western Sahara Advisory Opinion,96 and did not find it problematic that the ICJ’s findings in Western Sahara have been completely disregarded and never implemented in practice. The Court of Justice argued: It should be recalled that in its Advisory Opinion on Western Sahara … [the ICJ] considered that, on the one hand, Western Sahara ‘at the time of colonisation by [the Kingdom of] Spain was not a territory belonging to no-one (terra nullius)’, and, on the other, that the elements and information brought to its knowledge ‘[did] not establish any tie of territorial sovereignty’ between that territory and the Kingdom of Morocco.97 The Court then concluded that the people of Western Sahara enjoyed the right of self-determination under international law and ‘must be regarded as a “third party” [to the Trade Liberalisation Agreement] within the meaning of the principle of the relative effect of treaties [under the customary reflection of the VCLT].’98 Declaring the people of Western Sahara a third party under the VCLT rules is in itself problematic, as the VCLT and its customary reflections do not mention any third parties, but only third states and treaty parties (which can only be states, not peoples).99 The People of Western Sahara thus cannot be a ‘third party’ to any treaty, as they are not a state and the term third party is not a term of art under the VCLT in any case. Be that as it may, the Court of Justice thus moved Western Sahara outside of the scope of the Trade Liberalisation Agreement which meant that Polisario did not have standing in this case. It is significant that, in order to clarify the international legal status of Western Sahara, the Court of Justice took into account the ICJ’s Advisory Opinion, although (i) this is not a binding decision; (ii) the Union is not a party to the ICJ Statute (i.e. the treaty establishing the ICJ); and (iii) the 95 96 97 98 99

Ibid [121]. Western Sahara Advisory Opinion [1975] ICJ Rep 12. Polisario (n 88) [104]. Ibid [106]. See Vienna Convention on the Law of Treaties (1969) 1155 UNTS 332, Article 1. Even if one adopts an expansive reading of the customary rules on the law of treaties, the legal capacity in this area of law may extend to international organisations, but not to peoples.

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ICJ’s pronouncement in Western Sahara was never put into effect. The Court’s approach in Slovenia v Croatia could not have been more strikingly dissimilar. When there was a divergence between the territorial situation in law (as pronounced by the ICJ) and the situation in fact, it was the situation in law that was important for the Court. In Slovenia v Croatia it was the opposite: what mattered was the effective situation that the Arbitral Award was never enforced in practice, although it may have existed in law. 5.6 To Which Dispute Was the Case Ancillary? Since the EU is not a party to the ICJ Statute and advisory opinions are in any case non-binding, the relevance for the CJEU of Western Sahara and Wall Advisory Opinions does not stem from the binding force of the treaty that had created the relevant judicial organ. Rather, the ICJ’s advisory opinions were relevant because they were delivered by a competent judicial authority tasked to interpret the questions of international law. As such, they were creative of legal facts relevant for the cases before the CJEU and the Court of Justice took them into account. Yet, if one applied the same logic to Polisario and Vignoble Psagot as the Advocate General applied in Slovenia v Croatia in the part pertaining to the instances in which the Union is bound by international law,100 the Western Sahara or Israeli Wall Advisory Opinions should have been at least as irrelevant for EU law and the CJEU as was the Croatia/Slovenia Arbitral Award. But that clearly was not the case. It appears that Advocate General treated the ICJ as being more judicially authoritative, possibly because it is a permanent court, while an arbitral tribunal is an ad hoc judicial body. The Advocate General argued: ‘En effet, quand bien même il n’existe pas de mécanisme obligatoire de contrôle des sentences arbitrales interétatiques, un État contestant une telle sentence peut soumettre le différend concernant la validité de ladite sentence à la CIJ.’101 This premise might have also been silently adopted in the judgment.102 But the argument ignores the fact that arbitral decisions in international law have the same status as ICJ decisions. The Advocate General’s position further ignores the fact that even the ICJ’s decisions are sometimes not complied with. Yet, that does not invalidate their legal authority. For example, if state A does not comply with the ICJ’s decision X, this does not mean that decision X is invalid or that the other party – state B – would have to resort to the ICJ again and ask for enforcement, and yet again and again  … and again if state A kept failing to 100 Cf. supra (n 46). 101 Advocate General’s Opinion (n 44) [146]. 102 Cf. supra (n 87).

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comply. This would turn international adjudication into a mooting exercise. The same can be said of arbitral decisions: their non-enforcement does not make them ‘moot’. Once they are rendered by a competent judicial body, they are legally binding regardless of whether they are complied with or not. Even the ICJ’s practice proves that arbitral awards are recognised as having the same legal authority as the ICJ’s own decisions. While it does seem that the Court of Justice is willing to accept the authority of the ICJ,103 this was not the case with regard to the Croatia/Slovenia (ad hoc) Arbitral Tribunal. However, nothing in international legal doctrine suggests that the difference between permanent (e.g. ICJ) and ad hoc (e.g. arbitration tribunals) judicial bodies would have any consequences for determining whether a judicial decision has been rendered by a competent judicial body. There is no hierarchy between judicial bodies under international law. International adjudication cannot be premised on the logic that all international judicial decisions are legally binding, but judicial decisions of the ICJ are ‘more binding’ than others. All international judicial bodies, ad hoc and permanent, are created by treaties. Treaty law thus lingers in the background of any international judicial decision. Whether an ICJ decision or an Arbitral Award, in both instances the judicial body in question was established by an international treaty to which the Union is not a party, so its decision is not binding on the Union via treaty law. The ICJ Statute may be a multilateral treaty, but it still is a treaty of international law. It is no more of a treaty than is a bilateral arbitration agreement between two states. In domestic law, a distinction commonly exists between state court proceedings and private arbitrations. The two kinds of dispute settlement are based on different sources of law and have different conceptual underpinnings. Such a distinction does not exist in international law. One cannot say that ICJ decisions have public and arbitrations private (contractual) law effects. In international law, all judicial bodies are treaty law creations and thus inherently ‘contractual’ in nature. As a result, arbitral awards and ICJ judgments have exactly the same conceptual underpinnings in the sources of law and cannot be treated differently when it comes to their legal persuasiveness. The ICJ Statute established the judicial body that rendered the Western Sahara and the Wall Advisory Opinions, while the Croatia/Slovenia Arbitration Agreement created the judicial body that rendered the Arbitral Award. Both judicial bodies in question are underpinned by the same source of international law – treaty law. The Slovenia v Croatia case before the CJEU is thus not ancillary to the Arbitration Agreement (a treaty), just as Polisario and Vignoble 103 See supra notes 65, 66, 67 and 96.

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Psagot are not ancillary to the ICJ Statute (also a treaty) to which the Union likewise is not a party. It may well be, however, that the Slovenia v Croatia case is ancillary to the question of whether the Arbitral Award in the boundary dispute was indeed rendered by a competent judicial authority.104 The answer to this question rests in the legal status and effects of the 2016 Partial Award. The Arbitral Tribunal was the competent judicial authority to deliver its 2017 Arbitral Award if it is accepted that its 2016 Partial Award based on the general principle of kompetenz-kompetenz remedied Slovenia’s procedural wrongdoing in the arbitral proceedings.105 Did the Arbitral Tribunal have the authority to render its 2016 Partial Award? This is primarily a question of public international law and the effects of the general principles of (administrative) law in international adjudication. Is the general principles hook enough to bring the dispute within the jurisdictional scope of Article 259 TFEU?106 The Court of Justice did not address this question. 6

Conclusion

While the Court of Justice is in principle correct in saying that it is not for Union law to define territories of its member states,107 the problem was misstated: nobody had asked the Court to do this in Slovenia v Croatia. It is one thing to define a territory and quite another to take the territorial scope into account when interpreting obligations under Union law. The Court of Justice in this case simply stretched its Aktienbolaget and European Schools doctrines a step too far. It is clear that the CJEU cannot settle a boundary dispute between two member states under Article 259 TFEU where their Arbitration Agreement is not a part of Union law. But it is as equally as clear that Union organs cannot one day simply say that for the purposes of EU law it is not clear whether Alsace is a part of France or South Tyrol a part of Italy because, as per Aktienbolaget, a definition of state territory is not a part of Union law and the Union is not a party to the treaties that settled the borders between France and Germany, and between Italy and Austria. Internationally agreed and/or judicially settled boundaries between member states and indeed also between non-member states of the EU are legal 104 Cf. supra (n 69). 105 See supra (n 28). 106 Cf. supra (n 33). 107 See supra (n 55).

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facts and Union law needs to be interpreted in accordance with these facts. This was confirmed even by the CJEU with regard to the territorial scopes of Morocco and the Occupied Palestinian Territories. While it was not on the Court of Justice to define the territory of Morocco or the international legal status of Western Sahara, the Court took into account the legal facts pronounced by other competent judicial (in this case the ICJ) and certain political organs (e.g. the UN Security Council).108 Yet, it did not take into account the Arbitral Award of the Arbitration Tribunal between Croatia and Slovenia. By not taking into account the Arbitral Award, the Court was able to hold that the dispute at hand was ancillary to a treaty of public international law to which the Union is not a party. Did the Arbitral Award create a new legal fact between Croatia and Slovenia? It is well-established in international legal doctrine that a judicial decision creates an objective legal fact where it is delivered by a competent judicial body or authority.109 This is confirmed through international practice and the CJEU’s own case law, and regardless of whether such decisions have been enforced in practice.110 The question to which Slovenia’s claims may be ancillary is whether the Arbitral Tribunal, when it rendered the 2017 Arbitral Award, still was the competent judicial authority to do so. The answer to this question lies in the assessment of whether the Arbitral Tribunal’s 2016 Partial Award, based on the general principle of kompetenz-kompetenz, remedied Slovenia’s procedural wrongdoing and thus preserved its status of the competent judicial authority.111 It may well be that this question falls outside of the jurisdictional scope of Article 259 TFEU, but we will never know. The Court of Justice took a different path. It argued, unpersuasively from a doctrinal perspective, that the case was actually ancillary to the Arbitration Agreement, and that in any case the Arbitral Award was irrelevant because it has not been enforced. Settling a dispute under public international law by Union law proxy is one thing, taking into account a legal fact under public international law in the CJEU proceedings is quite another. It appears that the Court of Justice tried to say that it could not do the former, and in so doing (incorrectly) stated that it cannot do the latter. 108 See supra (n 71). 109 See supra (n 69). 110 See supra notes 70 and 88. 111 See supra (n 28).

8

The Gambia vs The Union of Myanmar  under the Genocide Convention A Case Doomed to Fail

Andrés H. Cáceres-Solari Abstract In 2019, The Gambia submitted an application against the Union of Myanmar to the International Court of Justice (ICJ), for violations to the Convention on the Prevention and Punishment of the Crime of Genocide against Myanmar’s Rohingya minority. This application, however, while being supported with overwhelming evidence of state and non-state violence, follows an argument to prove the Convention’s physical elements of the crime (actus rei), omits the prevention of births within the group and transferring children to another group, however similar to Bosnia Herzegovina’s and Croatia’s earlier applications. Most importantly, it also follows these former applications’ attempts to infer the genocidal specific intent (dolus specialis) through the accumulation of acts over a period of time, and respective results. This legal argument, is unlikely to meet the ICJ’s established standards of proof and other tests, thus risking failure, as with the two former cases. This article will analyse The Gambia’s application by exploring its critical vulnerabilities, identify relevant events and legal material which better identify the genocidal actus rei, and more importantly the existence of this dolus specialis in state policy. Finally, it will provide the necessary legal argumentation according to scholarly opinion and recent legal opinions on the matter in order to demonstrate the state responsibility of Myanmar for genocide against the Rohingya.

Keywords genocide – Rohingya – Myanmar – The Gambia – dolus specialis

1

Introduction

On 11 November 2019, the government of The Gambia submitted an application to the International Court of Justice (ICJ) against the Union of Myanmar (UoM) for violations of international obligations under the Convention on the

© Koninklijke Brill NV, Leiden, 2023 | doi:10.1163/9789004544796_009

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Prevention and Punishment of the Crime of Genocide 1948 (henceforth The Convention).1 The application submits ample evidence of state-sponsored violence against the Rohingya, state discrimination, hateful public rhetoric, instigation of violence, and the deteriorating situation of the Rohingya within the UoM, and in exile. The application, however, closely follows the previous Bosnia-Herzegovina v. Serbia & Montenegro of 2007 (Bosnia case),2 and Croatia v. Serbia3 of 2015 (Croatia case) applications, both of which failed to prove the respondent states’ commission of genocide. In both the Bosnia and Croatia cases, the applicants attempted to prove the respondents’ specific intent (dolus specialis) of genocide by submitting evidence of government officials’ racist and hateful rhetoric as genocidal state policy, and inference of genocidal intent through a pattern of acts committed against the group.4 In both cases, however, the Court did not find sufficient evidence of national policies with such objectives. The Gambia’s submission to the ICJ against the UoM (as deemed admissible by the Court in its 2022 judgment in which it ruled against the UoM’s preliminary objections5) concerning violations to international obligations of the Genocide Convention, regarding the Rohingya as a protected group, dangerously follows the same argumentation as the previous failed applications. The Gambia’s attempt to prove the UoM’s genocidal specific intent (dolus specialis) from government officials’ rhetoric, and inference from patterns of conduct will more than likely not meet the ICJ’s established threshold. In this article, I identify several critical substantive issues in the Gambia’s application and propose a different approach to proving the UoM’s genocide of the Rohingya. I submit that the required genocidal state policy is codified in UoM’s legislation, with a clear and unambiguous purpose to destroy the Rohingya in whole or in part, and that this forms a stronger evidential basis than that which is used in The Gambia’s current argumentation. Firstly, this research will begin describing the situation the Rohingya have faced in the UoM for the last 20 years. Secondly, the article will present an analysis of the ICJ’s Bosnia and Croatia genocide cases, focusing on the Court’s 1 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Request for Interim Measures) [2019], ICJ. 2 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ( Judgment) [2007] ICJ Rep 43 (hereinafter Bosnia case). 3 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ( Judgment) [2015] ICJ Rep 3 (hereinafter Croatia case). 4 Bosnia Case (n2), para 242. 5 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Preliminary Objections) [2022], ICJ.

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decisions regarding the Convention’s Articles 2(d) and (e),6 and the genocidal dolus specialis. Thirdly, the article will contrast The Gambia’s application with the ICJ’s former decisions to identify critical vulnerabilities, and lastly will present evidence and arguments to meet the ICJ’s threshold of genocidal intent and actus rei of the Convention’s Articles 2(d) and (e).7 2

The Rohingya Crisis

On May of 2012, following the rape and killing of a Rakhine woman by alleged Rohingya perpetrators, anti-Rohingya violence erupted in Sittwe (capital of the Arakan State), rapidly spreading throughout the rest of the country.8 In response to the violence, the local government forcibly removed the Rohingya from their homes and interned them in designated ghettos and camps throughout the Arakan State.9 These camps have been reported to have limited space and little clean water or shelter in which to house the interned victims, thus creating inhospitable environments.10 In the late summer of 2012, Rohingya-owned businesses were destroyed and forcibly closed throughout the State.11 The centre of Sittwe’s Aung-Mingalar district was put under siege by the military. Surrounding Rohingya farms and homes were destroyed, while military and local police blocked access points.12 Several interviewed victims mentioned that authorities would not allow them to leave in search for sustenance, 6

Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 Decem­ber 1948, entered into force 12 January 1951) 78 UNTS 277 (henceforth Genocide Convention) art 2(d) and (e). 7 Ibid. 8 ‘Myanmar Conflict Alert: Preventing communal bloodshed and building better relations’ (International Crisis Group, 12 June 2012) https://www.crisisgroup.org/asia/south-east -asia/myanmar/myanmar-conflict-alert-preventing-communal-bloodshed-and-building -better-relations, accessed on 7 May 2019. 9 ‘UN official likens Rohingya living conditions to Nazi concentration camps’ (The Guardian, 4 July 2019) https://www.theguardian.com/world/2019/jul/04/un-warns-of-possible -new-war-crimes-in-myanmar accessed on 2 September 2019. 10 Mathias Eick, ‘Myanmar: Rohingya face long-term misery in IDP camps’ (Europa, 1 January 2013) https://ec.europa.eu/echo/field-blogs/stories/myanmar-rohingyas-face -long-term-misery-idp-camps_en accessed on 4 August 2019. 11 Paul Gregoire, ‘Inside Sittwe, the point of no return for Burma’s displaced Rohingya’ (VICE, 28 July 2015) https://www.vice.com/en_us/article/vdxba4/inside-sittwe-the-point -of-no-return-for-myanmars-displaced-rohingya accessed on 1 September 2019. 12 ‘In Myanmar, refugees from Muslim-Buddhist conflict remain in limbo’ (PRI, 8 September 2016) https://www.pri.org/stories/2016-09-08/myanmar-refugees-muslim-buddhist-con flict-remain-limbo accessed on 15 September 2019.

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and local authorities restricted access to food, water, and health services.13 Interviewed representatives from Medicins Sans Frontiers and the Turkish Red Crescent also expressed frustration at local authorities for blocking all aid to these camps and areas, as well as arresting their workers.14 In surrounding areas such as Mrauk-U, the locals reported that most Rohingya had been expelled from the community, and their property seized or destroyed by Rakhine (the majority ethnic group in the Arakan State15) rioters.16 On 24 March 2017, the United Nations Human Rights Council established an Independent International Fact-Finding Mission in Myanmar, due to the ongoing violence against the Rohingya, and published a report on 12 September 2018.17 Among the several reported incidents were the indiscriminate destruction of villages and shooting of inhabitants as they attempted to flee.18 Additionally, the Tatmadaw (UoM’s armed forces) and other government forces have reportedly engaged in the indiscriminate killing of Rohingya civilians, failed to intervene when mobs committed violent acts, and in instances acted alongside them, according to the UN Fact-Finding Mission Report.19 The extensive investigations concerning the ongoing crisis surrounding the Rohingya in Myanmar and Bangladesh documented a plethora of murder, rape/sexual violence, and destruction of Rohingya communities.20 These provide evidence pointing to the perpetrators’ intent to cleanse the Arakan State of Rohingya.21 Furthermore, it places great emphasis on the Tatmadaw’s clearance operations of 2016 and 2017, and Rohingya-targeted discriminatory 13 ‘Bangladesh official: Myanmar is not conducive for Rohingya return’ (RFA, 20 August 2018) https://www.rfa.org/english/news/myanmar/bangladesh-refugees-08202018122723 .html, accessed on 9 October 2019. 14 ‘Five detained NGO aid workers released in Rakhine State’ (The Stateless Rohingya, 17 August 2012) https://www.thestateless.com/2012/08/five-detained-ngo-aid-workers-re leased-in-rakhine-state.html accessed on 1 September 2019. 15 ‘The Scramble for Rakhine’ (EFSAS, 24 August 2020) https://www.efsas.org/publications /articles-by-efsas/the-scramble-for-rakhine/, accessed on 15 February 2021. 16 ‘Fear and isolation for Myanmar’s remaining Rohingya’ (The Straits Times, 5 April 2018) https://www.straitstimes.com/asia/se-asia/fear-and-isolation-for-myanmars-remaining -rohingya accessed on 1 September 2019. 17 UNHRC ‘Report of the Independent International Fact-Finding Mission on Myanmar,’ (2018) UN Doc A/HRC/39/64 (henceforth Report International Fact-Finding Mission). 18 UNHRC ‘Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar’ (2018) UN Doc A/HRC/39/CRP.2, para 884. 19 UNGA ‘Report of the Independent International Fact-Finding Mission on Myanmar’ (2018) UN Doc A/HRC/39/64, para 26. 20 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Request for Interim Measures) [2019], ICJ, paras 7, 9, 11, 12, 14. 21 Ibid, para 9.

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national and local practices.22 Among these are the Rohingya’s restriction to state health services through discriminatory laws or impending violence.23 Mobs, radicalized monks, national and local authorities have looted, destroyed and burned Rohingya homes as part of these clearance operations, often preventing their victims from extinguishing the flames.24 Following forced displacement, captured Rohingya agricultural and communal lands have been bulldozed and developed into military infrastructure, thus depriving the Rohingya from any chance of return.25 UoM’s resettlement plans further show these former Rohingya lands are designated for non-Rohingya settlements, as per the UN Fact-Finding Mission.26 Imagery obtained from this report shows that up to 80% of 392 Rohingya villages in the northern part of the Arakan State were burned by the Tatmadaw in the first month of the 2017 clearance operations campaign.27 In the aftermath of the these offensives, 600,000 Rohingya remained in the Arakan State28 from an originally estimated population of 1 million Rohingya inhabitants.29 By 2019, this widespread violence caused the displacement of over 700,000 Rohingya, which prompted the involvement of the International Criminal Court.30 There are several accounts of systematic rape of the Rohingya at the hands of the Tatmadaw. According to victim reporting, in the village of Naiyongsong, the Tatmadaw opened fire, separated women and men, and then proceeded 22 Documentation of Atrocities in Northern Rakhine State, (US State Department, August 2018) https://www.state.gov/wp-content/uploads/2019/01/Documentation-of-Atrocities -in-Northern-Rakhine-State.pdf, accessed on 12 January 2022. 23 ‘Qualitative evidence of crimes against humanity: the August 2017 attacks on the Rohingya in northern Rakhine State, Myanmar’ (Bio Med Central, 16 September 2019) https://conflictandhealth.biomedcentral.com/articles/10.1186/s13031-019-0227-8, accessed on 28 September 2019. 24 Report International Fact-Finding Mission (n 17). 25 ‘Myanmar: Military land grab as security forces build bases on torched Rohingya villages’ (Amnesty International, 12 March 2018) https://www.amnesty.org/en/latest/news /2018/03/myanmar-military-land-grab-as-security-forces-build-bases-on-torched-rohing ya-villages/, accessed on 2 September 2019. 26 Report International Fact-Finding Mission (n 17) para 50. 27 Ibid, para 42. 28 Kyaw Hsang Hlaing, ‘Myanmar’s military coup prolongs misery for Rohingya in Rakhine,’ (Al Jazeera, 6 January 2022) https://www.aljazeera.com/news/2022/1/6/rohingya-myan mar-restrictions-on-freedom-of-movement, accessed on 10 Jan 2022. 29 Farnaz Fassihi, ‘Genocide continues in Myanmar, says U.N. investigator’ (Wall Street Journal, 24 October 2018) https://www.wsj.com/articles/u-n-investigator-says-genocide -continues-in-myanmar-1540427100, accessed on 30 July 2019. 30 ICC, ‘ICC Prosecutor, Fatou Bensouda, requests judicial authorization to commence an investigation in to the situation in Bangladesh/Myanmar,’ (2019) ICC Doc ICC-OTP20190704-PRI1465.

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to rape the former.31 Some military members stated that they were executing orders, and were instructed to do so in all nearby villages.32 In 2017, the Associated Press reported accounts from 21 women who shared similar stories of rape at the hands of the Tatmadaw.33 This report revealed patterns of separating the men (sometimes killing them), binding them to restrict their movement, then proceeding to rape the women, often in front of the men. Razia Sultana, a lawyer and advocate who has documented sexual violence against the Rohingya, explains that rape is a war weapon of the Tatmadaw.34 She further stated its purpose is not of looting or sexual satisfaction, instead to eradicate targeted groups. According to reporting, the Tatmadaw rapes to force a pregnancy with a Burmese (dominant group in the UoM) child, which would have adverse social repercussions for the mother and child within their ethnic group.35 The UN Fact-Finding Mission, additionally, reported the mutilation and involuntary removal of Rohingya women’s sexual organs as part of these attacks.36 This mission detailed cases of Tatmadaw soldiers raping women with knives and sticks, causing serious injuries to their reproductive organs. Physicians for Human Rights have obtained declarations from Rohingya victims who indicated that women and girls are targeted for mutilations, specifically genitalia and breasts.37 The same report mentions that, due to cultural taboos and stigmas, these events are likely to be underreported. Just as alarming is the 72nd session’s report of the Convention on the Elimination of All Forms

31 ‘Rohingya fleeing Myanmar describe military tactic of systematic rape’ (Colorado Public Radio, 13 April 2017) https://www.cpr.org/2017/04/13/rohingya-fleeing-myanmar-describe -military-tactic-of-systematic-rape/, accessed 20 July 2019. 32 Ibid. 33 ‘21 Rohingya women detail systematic, brutal rapes by Myanmar armed forces’ (NBC News, 13 December 2017) https://www.nbcnews.com/news/world/21-rohingya-women-detail -systemic-brutal-rapes-myanmar-armed-forces-n828811, accessed on 20 July 2019. 34 Sean Kilpatrick, ‘I am doing this for every place where rape is a weapon of war’ (Time, 27 March 2019) https://time.com/5559388/razia-sultana-rohingya-myanmar-sexual-vio lence-documentation/, accessed on 20 July 2019. 35 Hannah Beech, ‘When a baby is an everyday reminder of Rohingya horror’ (The New York Times, 7 July 2018) https://www.nytimes.com/2018/07/07/world/asia/myanmar-rohingya -rape-refugees-childbirth.html, accessed on 13 August 2019. 36 Report International Fact-Finding Mission (n 17) para 38. 37 Phelim Kline and Ranit Mishori, ‘Branded: Myanmar military mutilations of Rohingya civilians’ (PHR, 28 June 2019) https://phr.org/our-work/resources/branded-myanmar-mili tary-mutilations-of-rohingya-civilians/, accessed on 10 July 2019.

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of Discrimination Against Women’s (CEDAW) of March 2019, which mentions evidence of Rohingya women being forcibly sterilized by the government.38 Rohingya women victims, due to being members of a patriarchal society, are commonly revictimized with blame, shame, communal rejection, and forced exile.39 These effects are evident in refugee camps in Bangladesh, where several I/NGO s are documenting numerous cases of their stigmatisation due to rape, mutilations, and resulting pregnancies. Raped and pregnant Rohingya women in camps are often revictimized through family and group rejection, further resulting in their children being excluded from the group for not being Rohingya.40 Consequentially, these victims and their children are not recognised by the community, and are unable to function as a Rohingya family.41 3

Findings, Opinions and Rulings of the Court in Bosnia v. Serbia and Croatia v. Serbia

The Bosnia v. Serbia42 and Croatia v. Serbia43 cases established key definitions and interpretations regarding the Convention’s Article 244 which are critical for The Gambia’s argumentation of the crime of genocide in its application. These are summarised below. 3.1 Definition of the Group, and Articles 2(a), (b), and (c) The Court in the Bosnia case established that the group must be positively defined as a targeted ethnic, linguistic, racial, religious group.45 To meet the part of the group definition, according to the ICJ’s Croatia case, genocidal 38 CEDAW, ‘Committee on the Elimination of Discrimination Against Women seventy second session,’ (2019) UN Doc CEDAW/C/SR 1668. 39 Audrey Schmelzer, Tom Oswald, Mike Vandergriff, Kate Cheatham, ‘Violence Against the Rohingya, a Gendered Perspective,’ (Praxis, 11 February 2021) https://sites.tufts.edu /praxis/2021/02/11/violence-against-the-rohingya-a-gendered-perspective/, accessed on 11 November 2021. 40 Hannah Beech, ‘Pregnant Rohingya Women Shunned by Families After Mass Rapes,’ (SBS, 11 July 2018) https://www.sbs.com.au/news/pregnant-rohingya-women-shunned -by-families-after-mass-rapes/86c8355a-3073-42d1-8b79-ca50497645bb, accessed on 30 September 2021. 41 ‘UN mobilizes in Rohingya camps to support babies born of rape; young mothers face stigma’ (UN News, 19 June 2018) https://news.un.org/en/story/2018/06/1012372, accessed on 3 October2019. 42 Bosnia Case (n 2). 43 Croatia Case (n 3). 44 Genocide Convention, art 2. 45 Bosnia Case (n 2), paras 192–196.

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intent within a limited geographical area is accepted, and the targeted population must be substantial in relation to the overall size of the group.46 The actus rei of the crime of genocide, according to the Court in the Croatia case, are not to be considered in isolation, but with the genocidal intent to destroy the group in whole or in part.47 The Court additionally established that acts of serious physical/mental harm, such as mental suffering, must contribute to the physical or biological destruction of group in whole or in part, and further underlined that rape and other sexual violence would also apply within this actus reus.48 Consequentially, in these two cases,49 the Court ruled that the Convention’s Articles 2(a) (killing members of the group) and (b) (causing serious bodily or mental harm to members of the group) were met.50 In the Bosnia case, the Court also established that Article 2(c) (deliberately inflicting on the group conditions of life calculated to bring about the physical destruction) may include starvation, deportation, inhumane treatment in camps,51 as well as denial of medical care/hygiene, and exhaustion resulting from physical exertion.52 Moreover, the International Criminal Tribunal for Rwanda (ICTR)’s Kayishema trial established that reducing medical care below a minimum53 amounts to the Convention’s Article 2(c).54 The Court dismissed submissions of destruction of historical/religious/cultural property, emphasising that these do not amount to the physical-biological destruction of the group.55 It additionally remarked that, depending on the circumstances, acts of ethnic cleansing may result in the physical destruction of the group, thus potentially amounting to an act of genocide.56 Despite the justification for civilian deportations/expulsions in order to protect them from the effects of war, the Court established that these acts become unjustified in the presence of a specific intent (dolus specialis) to commit genocide.57 In the Croatia case, the Court established that this specific intent (dolus specialis) must initially be sought in state’s policy.58 Furthermore, the Court in the 46 47 48 49 50 51 52 53 54 55 56 57 58

Croatia Case (n 3), para 142. Ibid, para 149. Ibid, paras 157–160. Bosnia Case (n 2), paras 276, 319. Croatia Case (n 3), paras 295, 360, and 499. Bosnia Case (n 2), para 322. Croatia Case (n 3), para 161. Prosecutor v. Kayishema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999), para 116. Genocide Convention, art 2(c). Bosnia Case (n 2), para 344. Croatia Case (n 3), para 163. Bosnia Case (n 2), para 334. Croatia Case (n 3), para 143.

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Bosnia case considered that in the absence of an explicit statement of intent, the existence of this specific intent (dolus specialis) could be inferred from the pattern of conduct against the protected group.59 With the exception of Srebrenica, however, the Court did not find the existence of the specific intent (dolus specialis) to destroy the protected group in whole or in part.60 This pattern of conduct must be such that any other plausible explanation may be discarded, thus its sole inference61 and reasonable outcome is the destruction of the group.62 In conclusion, the Court established that, despite clear evidence, these actus rei must be accompanied with specific genocidal intent (dolus specialis).63 3.2 The Convention’s Article 2(d): Prevention of Births Bosnia argued in the application that the forcible gender separation in cities and camps led to a decline in the group’s birth rate.64 Furthermore, the systematic sexual violence directly affected the reproductive functions of Bosniak women, resulting in their inability to procreate.65 The application also presented that systematic sexual violence against men was conducted with the purpose of preventing their ability to procreate within the protected group as well.66 Bosnia also argued that this sexual violence caused psychological trauma that affected their ability to establish a normal family life and to reproduce.67 In acknowledging this, the Court considered that rape could be with the intention to prevent births within the protected group as established in the ICTR’s Akayesu trial.68 The International Criminal Tribunal for the Former Yugoslavia (ICTY)’s Kunarac case furthermore showed that, in certain instances, rape in camps had been conducted with the purpose of impregnating Bosniak women with children who would not be exclusively from their own protected group.69 This was evidenced by the United Nations stating that perpetrators would purposely hold their forcibly impregnated victims captive until the point they were unable to have an abortion, thus affecting the composition of the 59 60 61 62 63 64 65 66 67 68 69

Bosnia Case (n 2), para 242. Ibid, para 297. Croatia Case (n 3), para 148. Bosnia Case (n 2), para 373. Ibid, paras 328, 334, 354. Ibid, para 355. Ibid, para 356. Ibid, para 357. Ibid, para 358. Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998), para 508. Prosecutor v. Kunarac (Judgment) IT-96-23-T (22 February 2001), para 583.

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group.70 The Court, however, found little evidence that any of the alleged acts perpetrated by the Bosnian Serb forces could be classified under Article 2(d) of the Convention due to the lack of a policy with such purpose, thus not meeting the actus reus of preventing Bosniak births.71 3.3 Sexual Violence as a Genocidal Act Bosniak women were submitted to countless acts of sexual violence throughout the conflict,72 as the Army of Republika Srpska (VRS) raped in order to terrorise their victims.73 VRS camps became centres of repeated rape, sexual degradation, sexual mutilation, and prisoners were often forced to rape fellow prisoners.74 Regarding Article 2(d), the Court considered that rape/sexual violence against women and men, its resulting infertility, trauma, and rejection of the victims by the group could indeed amount to ‘imposing measures to prevent births within the protected group.’75 Additionally, the Court accepted that acts of rape and sexual violence applicable to Articles 2(b) and (c) may also amount to a violation of Article 2(d), as long as these are systematic and affect the ability of the group to procreate.76 Bosnia submitted to the Court that the forced impregnation of Bosniak women by Serb males would result in a child not recognised as part of their group, thus essentially transferring children out of the group as per Article 2 (e) of the Convention.77 The ICTY had, in the Karadžić and Mladić case, identified that some women were interned in camps that were devoted to rape, and were further restricted from leaving until it was too late to obtain an abortion, thus inferring the intention of forced impregnations.78 However, the Court in the Bosnia case decided that the evidence did not lead to a policy of forced impregnations or transfer of children to another group.79 Both Bosnia and Serbia did not contest that sexual violence could amount to genocidal acts as long as these are performed with the specific intent (dolus 70 UNSC, ‘Final Report of the Commission of Experts established pursuant to Security Council Resolution 780,’ UN Doc No S/1994/674 (1992), paras 248 and 250. 71 Bosnia Case (n 2), para 361. 72 Ibid, para 304. 73 Ibid, paras 305–306. 74 Ibid, paras 307–317. 75 Ibid, paras 355–361. 76 Croatia case (n 3), para 166. 77 Bosnia case (n 2), paras 362–365. 78 Prosecutor v. Ivica Rajic, (Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence) IT-95-5-R 61 and IT-95-18-R61, (13 September 1996), para 64. 79 Bosnia case (n 2), para 367.

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specialis) to destroy the group.80 The Court underlined the Akayesu Trial Judgement which established that rape and sexual violence (including sexual mutilation) inflicts some of the most serious mental and bodily harm on its victims, including potentially the psychological destruction of the group.81 More importantly, the ICTR established that this sexual violence was focused solely on Tutsi women, was with the objective to seriously physically and/or mentally harm and kill them, and was integral to the destruction of the group.82 The Court in the Bosnia case accepted that the Bosniaks were subjected by systematic mistreatment, to include rape, in cities as well as in camps.83 Despite the evidence provided, however, the Court did not find these were committed with the specific intent (dolus specialis) of destroying the Bosniaks in whole or in part. 3.4 Genocide in Srebrenica The Court accepted the ICTY’s Kristic judgment that the specific intent (dolus specialis) was developed sometime after 13 July 1995 in Srebrenica.84 Despite the absence of a premeditated plan, the evidence showed the planned killings and large scale executions all fell under a broader strategy to eliminate Srebrenica’s military-aged males.85 The Court remarked that genocide is not necessarily a premeditated crime; instead this intent or goal may arise later during the development of an operation,86 as in the case of Srebrenica.87 The genocidal specific intent (dolus specialis) emerged when the VRS’ objectives in Srebrenica changed, and without the necessity of any prior written or official overarching plan from Republika Srpska’s authorities.88 The ICTY Trial Chamber in Krstic determined the killing of such a large number of Bosniak men ‘would inevitably result in the physical disappearance’ of Srebrenica’s protected group,89 underlining that an official plan with a specific intent (dolus specialis) is unnecessary. Thus, VRS forces were under the full knowledge that the combination of the killings of Bosniak men of military

80 81 82 83 84 85 86 87 88 89

Ibid, para 298. Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998), para 731. Ibid, paras 732 and 733. Bosnia case (n 2), para 319. Prosecutor v. Radislav Krstic (Judgment) IT-98-33-T (2 August 2001), para 573. Ibid, para 572. Ibid, para 90. Prosecutor v. Vidoje Blagojević (Judgment), IT-02-60-T (17 January 2005), para 130. Bosnia Case (n 2), 295. Prosecutor v. Radislav Krstic (Appeal Judgment) IT-98-33-A (19 April 2004), para 28–33.

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age, along with the forced deportations of women, children, and elderly would inevitably result in the destruction of,90 and long term harm to, the group.91 Krstic’s Appeal Chamber further established that the percentage of victims from the overall population is not determinative of the community’s importance.92 Srebrenica’s victims were native Bosniaks and those displaced from neighbouring regions.93 Furthermore, since the United Nations Security Council declared Srebrenica a Safe Area, its destruction was emblematic of all Bosniaks.94 3.5 Conclusion of the Court Bosnia’s application did not point to the existence of an official statement from the VRS or Republika Srpska stating the specific intent (dolus specialis) to destroy the Bosniaks as a group in whole or in part. Instead, the application relied on inferring this intent from Republika Srpska’s published manifestos, in combination with the consistency of practices which painted a pattern of behaviour of those in a position to direct these events.95 However, with the exception of the events in Srebrenica, the Court did not find the necessary specific intent (dolus specialis) to commit genocide. The Court concluded that the specific intent (dolus specialis) of genocide must be first found in an existing plan. In its absence however, there must be particular circumstances and a pattern of conduct of such nature which could only point to this intent.96 The Court in the Croatia case reinforced this by stating that establishing intent based on isolated acts is difficult, therefore evidence must show that these acts were committed on such a scale that the intention to destroy the group as a whole or in part is clear.97 In conclusion, the applications did not prove the existence of an official policy or statements expressing the genocidal intention. Thus, while the Court accepted the arguments and evidence that the actus rei had been committed, the absence of specific intent (dolus specialis) meant that there could be no finding of state responsibility for the commission of genocide with regard to acts committed outside Srebrenica. Nevertheless, Serbia and Montenegro were found

90 91 92 93 94 95 96 97

Prosecutor v. Radislav Krstic (Judgment) IT-98-33-T (2 August 2001), para 595. Ibid, paras 37 and 677. Ibid, para 15. Ibid, para 15. Ibid, para 16. Bosnia case (n 2), paras 371 and 372. Ibid, para 373. Croatia case (n 3), para 139.

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internationally responsible for their failure to prevent and punish those responsible for the genocide in Srebrenica.98 4

Analysis of The Gambia’s Application

4.1 The Rohingya as a ‘Protected Group, in Whole or in Part’ On 11 November 2019, The Gambia brought a case against the UoM for violations of the Genocide Convention with regards to the Rohingya.99 The Rohingya are an ethno-religious minority in the UoM100 with unique ethnic, racial, religious and linguistic ‘distinguished characteristics’ which positively identifies them as a ‘protected group’ in accordance with the ICJ’s clarification in the Bosnia case.101 The UoM’s refusal to recognise them as Rohingya is legally irrelevant, as per ICTR’s Bagilishema case, the perpetrator is not required to identify their target as a ‘protected group,’ to meet this requirement.102 There are approximately 3.5 million Rohingya worldwide,103 of which over 900,000 have fled to neighbouring countries as a result of the ongoing violence,104 and an estimated 500,000 still live in the UoM.105 According to the ICTY’s Krstic (Appeal Chamber), the quantitative substantiality required to meet the meaning of ‘part of the group’ is met when the number of victims in relation to the overall size of the group is significantly large, and the survival of these victims is essential to the survival of the group.106 When establishing state responsibility for the crime of genocide, it is important to determine that the criminal practice is taking place throughout the territory in question,107 which in this case is the Arakan State, the native land of the UoM’s Rohingya. 98 Bosnia case (n 2), paras 450. 99 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Request for Interim Measures) [2019], ICJ. 100 UNGA, ‘Situation of Human Rights of Rohingya Muslim Minority and Other Minorities in Myanmar,’ (2021) UN Doc No A/HRC/43/18. 101 Bosnia case (n 2), para 194. 102 Prosecutor vs Bagilishema, (Judgment) ICTR-95-1A-T, (7 June 2011), para 65. 103 Eleanor Albert and Lindsay Maizland, ‘The Rohingya Crisis,’ (CFR, 23 January 2020) https://www.cfr.org/backgrounder/rohingya-crisis, accessed on 20 December 2021. 104 ‘Rohingya Population by Location,’ (UNHCR, 31 December 2021) https://data2.unhcr .org/en/documents/details/90394, accessed on 4 January 2021. 105 ‘Myanmar Rohingya: What you need to know about the crisis,’ (BBC, 23 January 2020) https://www.bbc.com/news/world-asia-41566561, accessed on 17 October 2021. 106 Prosecutor v. Radislav Krstic (Appeal Judgment) IT-98-33-A (19 April 2004), para 12. 107 Yusuf Aksar, ‘The Specific Intent “(Dolus Specialis)” Requirement of the Crime of Genocide: Confluence or Conflict between the Practice of “Ad Hoc” Tribunals and the ICJ,’ [2009] 6 Uluslararası İlişkiler 23.

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According to Mohamed Abed, a group should be considered destroyed when the perpetrator’s intent has crystallised into the establishment of policies which directly attack the essential foundations of the group’s existence.108 The destruction of the UoM’s Rohingya would cause a significant impact as they are substantially the largest part of the group globally.109 The fact that close to half of the worldwide population of the Rohingya are refugees as a result of the crisis, or still in the UoM subjected to violence, meets this requirement of the Genocide Convention’s Article 2110 and the ICJ’s interpretation for ‘protected group’ and ‘in whole or in part.’111 The activities of the Arakan Rohingya Islamic Front in the 1970s and the recent emergence of the Harakh al-Yaqin, both Rohingya armed groups in the UoM,112 could justify a respondent state argument that the rules of international humanitarian law govern this conflict. This would strengthen the UoM’s argument that a particular attack considered lawful under IHL would in turn disqualify the same from consideration as a genocidal actus reus.113 In particular, these arguable acts are those related to the Convention’s articles 2(a–c),114 however the evidence as referenced in the United Nations’ reports shows that most of these acts have been committed on non-military targets. The Convention’s Article 2(a)–(e): The Physical Elements of the Crime of Genocide The Gambia’s application to the ICJ provides overwhelming evidence corroborated by UN agencies, other international organisations, and NGO s, all of which have documented excessive violence against the Rohingya. Similar to Bosnia’s application, there is enough evidence to prove that state and non-state groups have engaged in killing, inflicting physical and mental violence

4.2

108 Mohamed Abed, ‘The Concept of Genocide Reconsidered,’ [2015] 41 Social Theory and Practice 2. 109 Erin Blakemore, ‘Who are the Rohingya?’ (National Geographic, 8 February 2019) https:// www.nationalgeographic.com/culture/people/reference/rohingya-people/, accessed on 25 September 2019. 110 Genocide Convention, art 2. 111 Ibid. 112 Thomas M. Sanderson and Maxwell B. Markusen, ‘Myanmar and its Rohingya Muslim Insurgency,’ (CSIS, 7 September 2017) https://www.csis.org/analysis/myanmar-and-its-ro hingya-muslim-insurgency, accessed on 15 July 2022. 113 Dov Jacobs, ‘A Commentary on The ICJ Croatia v. Serbia Genocide Case (part I): Some thoughts on an Anti-Climatic Result,’ (Spreading the Jam, 16 February 2015) https://dov jacobs.com/2015/02/16/a-commentary-on-the-icj-croatia-v-serbia-genocide-case-part-i -some-thoughts-on-an-anti-climatic-result/, accessed on 2 August 2022. 114 Genocide Convention, art 2(a), (b), and (c).

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(including sexual violence), and imposing deadly living conditions on the Rohingya. Thus, the evidence submitted regarding these acts can easily meet the Convention’s and ICJ’s interpretations of Article 2(a) (killing members of the group), 2(b) (causing serious bodily or mental harm to members of the group), and 2(c) (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part).115 The submission, however, lacks key evidence and argumentation that this violence meets the Convention’s and ICJ’s interpretations for Articles 2(d) (imposing measures intended to prevent births within the group), and 2(e) (forcibly transferring children of the group to another group). Below is the evidence and argumentation the ICJ’ threshold for these two Articles have been met, according to established international legal interpretation, and scholarly opinion. 4.2.1

Imposing Measures to Prevent Births within the Protected Group In both Bosnia’s and Croatia’s applications, the Court considered the observation of the Trial Chamber in Akayesu (ICTR) that rape could cause mental harm leading to the reproductive inability of members of the group. Bosnia’s application, however did not provide enough evidence that vast cases of sexual violence, rape, or the role of certain camps to forcibly impregnate women and prevent abortions amounted to a violation of Article 2(d) of the Convention.116 In the Croatia case, the Court determined it was necessary that the acts’ circumstances were of such capacity that it in fact prevented the group from procreating.117 The UoM however, has codified into law the intent to prevent births of the Rohingya as a group. Since 2005, Arakan State authorities have implemented a two-child policy as part of the Township Peace and Development Council’s Regional Order 1/2005,118 exclusively in the Buthidaung and Maungdaw districts, where the majority of UoM Rohingya live, with the intention to reduce their births.119 The UoM’s Population Control Law of 2015 further empowered

115 116 117 118

Ibid. Genocide Convention, art 2(d). Croatia case (n 3), para 166. Township Peace and Development Council, Maungdaw, Regional Order No. (1/2005) (1 May 2005), reproduced in Fortify Rights, Policies of Persecution (Union of Myanmar), p 33. 119 ‘Burma: Revoke ‘Two-Child Policy’ For Rohingya,’ (HRW, 28 May 2013) https://www .hrw.org/news/2013/05/28/burma-revoke-two-child-policy-rohingya, accessed on 14 Sep­ tember 2021.

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local governments to take population control measures, including mandatory birth spacing, in areas with high population growth.120 This national legislation gives additional latitude and support to the already established reproductive restrictions on the Rohingya. According to the Organisation for Economic Co-operation and Development (OECD), a fertility rate of 2.1 children per woman is necessary to sustain a stable population, assuming migrations or mortality rates are normal.121 In peaceful states with healthy populations and accessible healthcare like Japan, a 1.34 fertility rate is causing a steady decrease in population.122 Thus, while a 2.1 fertility rate in Japan would be desirable for sustainment, in states with lower life expectancies123 and higher mortality rates (especially infant and children), the fertility rate must be much higher to sustain the population.124 The UoM’s neonatal and childhood mortality rates are some of the highest in Asia, mainly as a result of disease and insufficient health care.125 According to the UoM’s 2014 Policy Brief on Mortality, the Arakan State has among the highest under-5 years of age mortality rates.126 Curiously, this report excluded over 1 million inhabitants in the Arakan State, which could suggest that these numbers exclude the Rohingya. Considering this group has zero access to healthcare unlike UoM citizens, and are subject to high levels of violence, their necessary fertility rate to maintain a stable population must be significantly above 2.1 children per woman. A reproductive study in Cambodia showed a significant decrease in fertility rates between 1975 and 1978 when the Khmer Rouge regime killed almost one

120 Law for Health Care Relating to Control of Population Growth, 2015 (Union of Myanmar). 121 ‘Fertility Rates,’ (OECD) https://data.oecd.org/pop/fertility-rates.htm, accessed on 14 January 2022. 122 Ryuichi Hisanaga, ‘Japan’s births in 2020 lowest ever; fewest marry since WWII’s end,’ (Asahi, 4 June 2021), https://www.asahi.com/ajw/articles/14365588, accessed on 3 November 2021. 123 Tim Searchinger, Craig Hanson, Richard Waite, Brian Lipinski, George Leeson, Sarah Harper, ‘Achieving Replacement Level Fertility’ (World Resources Institute, 1 August 2013) https://www.wri.org/publication/achieving-replacement-level-fertility accessed 10 July 2019. 124 Craig J, ‘Replacement level fertility and future population growth,’ [1994] 78 Population Trends 20–2. 125 T. Hoehn and M. Hoppenz, ‘Neonatal and childhood mortality rates in Myanmar,’ [2009] 221 Klin Padiatr 4. 126 ‘2014 Myanmar Population and Housing Census: Policy Brief on Mortality,’ (UNFPA, 2014) https://myanmar.unfpa.org/sites/default/files/pub-pdf/policy%20brief%20and%20info ‑graphics_Mortality.pdf, accessed on 3 December 2021.

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quarter of the population.127 A similar study in Angola discovered that women in conflict-affected areas will likely avoid having children during the conflict, and further delay bearing children post-war due to lasting mental trauma.128 A study on the effects of the Rwandan genocide on fertility rates showed that the experience of violence had negative effects on women’s fertility rates both during and post-conflict.129 Further studies show that years of violence in Afghanistan, Iraq, Lebanon, and Syria caused fertility decreases of 20–37%.130 According to the ICTY in Karadzic, legal actions need not necessarily lead to immediate violence in order to be considered as ideology and institutional violence.131 Adam Jones further mentions that ideological structures and institutions of violence may bring about this harm more passively and slowly, resulting in a gradual death and debilitation of the targeted group.132 Thus, these restrictive fertility rates constitute this institutional violence, not resulting in the immediate destruction of the Rohingya, but rather leading to their gradual decline and destruction as a group. According to William Schabas, individuals may have specific intent (dolus specialis), but states have state policy, which he describes as the real subject in question.133 Glanville Williams mentions that if a perpetrator is aware of the circumstances of the crime, culpability due to knowledge or wilful blindness can be established.134 These scholarly opinions, in combination with Jones’ comments on ideological structures/institutions, and the undoubtable impact that the UoM’s anti-reproductive national policies have had, constitute a sufficient basis to establish a state genocidal policy aimed at the destruction of the

127 Jenna Nobles, Elizabeth Frankenberg, Duncan Thomas, ‘The Effects of Mortality on Fertility: Population Dynamics After a Natural Disaster,’ [2015] 52 PMC 1. 128 Victor Agadjanian and Ndola Prata, ‘War, Peace, and Fertility in Angola,’ [2002] 39 Demography 2. 129 Kati Kraehnert, Tilman Brück, Michele Di Maio, Roberto Nisticò, ‘The Effects of Conflict on Fertility: Evidence from the Genocide in Rwanda,’ (IZA, May 2019) https://docs.iza .org/dp12328.pdf, accessed on 15 January 2021. 130 Ishtar Mahmoud, ‘Female Fertility Rates in Syria: A Slight Improvement: Long Wars and Future Losses.’ (Kassioun, 21 March 2021) https://kassioun.org/en/articles/item /68175-female-fertility-rates-in-syria-a-slight-improvement-long-wars-and-future-losses, accessed on 4 December 2021. 131 Prosecutor vs Karadzic, (Judgment), IT-95-5/18-T, (24 Mar 2016) para 2853. 132 Adam Jones, ‘Genocide and Structural Violence, Charting the Terrain,’ in Adam Jones (ed) New Directions in Genocide Research (Routledge 2012) 132–151. 133 William Schabas, ‘State Policy as an Element of International Crimes,’ [2008] 98 Journal of Criminal Law and Criminology 3. 134 Glanville Williams, Criminal Law: The General Part (Stevens, 1961) 159.

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Rohingya group, which accompanies the actus reus as per Article 2(d) of the Convention.135 Consequentially, the UoM’s state policy of 2 children per Rohingya family is institutional violence with the purpose of destroying the group (not immediately), and meets the ICJ’s threshold of state policy ‘aimed at causing the physical destruction of the population in question.’136 The addition of the ongoing targeted violence certainly spells the destruction of the Rohingya much faster. 4.2.2 Forcibly Transferring Rohingya Children to Another Group The ICJ has established that, regardless of the extent and the existence of dedicated facilities for the forcible impregnation of women by members of another group, without the existence of a policy of forcible pregnancies, these acts do not violate Article 2(e) of the Convention.137 Per the UoM’s Citizenship Law of 1982, Article 3 (Chapter II), the Rohingya are not UoM citizens,138 instead they are considered illegal Bengali immigrants. Furthermore, according to this law’s Article 43 (Chapter IV), a person born of a UoM citizen and a foreigner may only become a naturalised citizen through application via the recognised ethnic group of the UoM citizen parent.139 Per the UoM’s Constitution, Chapter 8 Section 367, the right to healthcare is exclusive to citizens.140 This inflicts additional pressure on the raped mother to transfer her child to the perpetrator’s group in order to obtain this basic right. Robert van Krieken argues that the existence of legislation which allowed the unconsented removal of Aboriginal children would amount to the genocidal act of the forcible transfer of children from one group to another group.141 Therefore, this constitutional Article entails the forcible removal of the child, which, according to David MacDonald and Graham Hudson, could also mean the legal removal of children from their parents to foster homes or adoption as happened to North American First Nations’ children.142 These identified UoM’s state policies of not recognizing Rohingya children, allowing citizen rights only to selected groups (in this case the perpetrators’), 135 136 137 138 139 140 141

Genocide Convention, art 2(d). Croatia case (n 3), para 480. Bosnia case (n 2), para 367. Burma Citizenship Law of 1982, Chapter II, art 3, (Union of Myanmar). Ibid, art 43. Constitution of the Union of Myanmar, Chapter VIII, section 367. Robert van Krieken, ‘Rethinking Cultural Genocide: Aboriginal Child Removal and Settler-Colonial State Formation,’ [2004] 75 Oceania 2. 142 David B. MacDonald and Graham Hudson, ‘The Genocide Question and Indian Residential Schools in Canada,’ [2012] 45 Canadian Journal of Political Science 2.

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and the state plan to commit these crimes, play an essential role in the crime of genocide according to William Schabas.143 Consequentially, children resulting from Rohingya rape at the hands of UoM citizen perpetrators (usually Burmese or Rakhine), can only be officially recognised under the perpetrator’s ethnicity, and (as already documented) are rejected by the Rohingya community. Similar to Yazidi women (victims of rape during the Syrian civil war), Rohingya women find themselves being rejected by their group, thus preventing them from leading a normal communal life.144 Therefore, the only recourse a forcibly impregnated Rohingya mother has to legally provide her child a violence-free status, is by transferring her child to the rapist’s group. Otherwise, without this transfer, mother and child would live an oppressed fate by the perpetrators, and rejected by their group. The ICTR’s Akayesu Trial Chamber established that acts of threats or trauma can amount to the forcible transfer of children to another group.145 Thus, the UoM’s legal framework places Rohingya mothers in a position where existing threats, marginalisation, violence, and trauma may force her to transfer the child to the rapists’ group to escape this fate. The removal of Rohingya children into the dominant group of the perpetrator, according to Panayiotis Diamadis, is with the purpose to deny the targeted protected group the ability to procreate themselves.146 Consequentially, the combination of UoM laws and the systematic forcible transfer of Rohingya children to another group meets the actus reus of the Convention’s Article 2(e),147 and is accompanied by the genocidal state policy to destroy the protected group. The Mental Element of the Crime of Genocide: Specific Intent (Dolus Specialis) According to William Schabas, the proof of intent may be found in the ‘logical deduction that flow from evidence of the material acts,’148 which, in this case, must be with the intent to destroy the Rohingya in whole or in part. Identification of the target of this intent is critical, being further essential to prove that a particular group is in the cross-hairs of existing state policy which 4.3

143 William Schabas, ‘State Policy as an Element of International Crimes,’ [2008] 98 Journal of Criminal Law and Criminology 3. 144 Thomas Trzyna, Pornography and Genocide: The War against Women (Cascade, 2019) 84. 145 Prosecutor v. Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998), para 509. 146 Panayiotis Diamadis, ‘Children and Genocide,’ in Colin Tatz (ed), Genocide Perspectives IV (UTS 2012). 147 Genocide Convention, art 2(e). 148 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge 2009) 265.

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may give rise and/or allowance to destructive acts against them.149 Moreover, it is the identification of a state plan or policy proving the required genocidal policy, particularly if documented, which establishes the state’s genocidal intent.150 Otherwise, the application runs the risk of the Court’s determination that the acts, as reported in the United Nations’ reports, are of a more unconnected nature and that the respondent’s operational method (as in the Croatia case) lacks the required genocidal intent.151 The next subsections will prove the UoM’s specific intent (dolus specialis) to commit the Rohingya genocide. 4.3.1

The International Court of Justice’s Standard for Genocidal Specific Intent (Dolus Specialis) The ICJ has established a high threshold for the proof of genocidal specific intent (dolus specialis), which, in the absence of official policy, relies on a high quality and quantity of convincing proof rendering any other alternative explanation of facts as unreasonable.152 In the Bosnia case, the Court required a ‘high level of certainty’ in respect of the severity of the allegations to establish that Serbia had breached its international responsibility for the commission genocide.153 According to Schabas, this ‘high level of certainty’ resembles the standard of ‘beyond reasonable doubt,’ often employed in international criminal cases.154 The intention to render an area ethnically homogeneous by the removal of a particular group, also known as ethnic cleansing, through whichever means chosen, does not specifically translate to the intent of destruction of the group in whole or in part, as cemented in the Bosnia case.155 The Court, however, added that ethnic cleansing could constitute genocide as long as it was accompanied by acts listed in Article 2 of the Convention,156 and inspired by the necessary specific intent (dolus specialis). This is echoed by Larissa van

149 Aulia Rosa Nasution, ‘The Crime of Genocide on the Rohingya Ethnic in Myanmar from the Perspective of International Law and Human Rights,’ [2018] 5 Padjadjaran Jurnal Ilmu Hukum 182–206. 150 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge 2009) 267. 151 Ines Gillich, ‘Between Light and Shadow: The International Law Against Genocide in the International Court of Justice’s Judgment in Croatia v. Serbia (2015),’ [2016] 28 Pace Int’l L. Rev. 117. 152 Beth Van Schaak, ‘Determining The Commission of Genocide in Myanmar,’ [2019] JICJ 17. 153 Bosnia case (n 2), para 210. 154 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge 2009) 517. 155 Bosnia case (n 2), para 190. 156 Genocide Convention, art 2.

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den Herik, who further argues that only extreme ethnic cleansing cases could constitute genocide.157 The Court, however, did not accept Croatia’s claims that Serbia’s ethnic cleansing consisted genocide as the objective to forcibly displace the group does not necessarily mean the destruction of the group.158 Maja Munivrana Vajda argues, however, that ethnic cleansing against a group at a particular geographical location, with the intent to permanently remove them and preventing their return permanently, could entail the destruction of that group at that particular location.159 Therefore, in accordance with the Court’s reasoning in the Croatia case,160 the UoM’s forcible removal of the Rohingya from the Arakan State with the purpose to obtain their lands for other use, such as economical gain, would not necessarily meet the requirement of specific intent (dolus specialis) to commit genocide.161 However, if the intent is to permanently destroy the presence of the Rohingya in the Arakan State in order to achieve a more ethnically homogeneous space (i.e., in favor of the Rakhine), this could constitute an extreme form of ethnic cleansing with the intent to destroy the group in whole or in part. The Inter-American Court of Human Rights established in the Plan de Sánchez Massacre v. Guatemala case that the military actions in the country at the time, such as scorched earth operations and displacement of indigenous communities, were aimed at the destruction of domestic enemies.162 José Luis Pérez Triviño argues that mental states are more easily deduced indirectly, mainly as a result of conduct and contextual circumstances.163 This is further reinforced by Sam Clearwater as he underlines that state responsibility derives from state attribution through the criminal actions of individuals.164 Therefore 157 Larissa Van den Herik, ‘The Meaning of the Word ‘Destroy’ and its Implications for the Wider Understanding of the Concept of Genocide,’ in Harmen Van der Wilt, Jeroen Vervliet, Göran Sluiter, Johannes Houwink ten Cate (eds), The Genocide Convention: The Legacy of 60 Years (Nijhoff 2018). 158 Croatia case (n 3), para 510. 159 Maja Munivrana Vajda, ‘Ethnic Cleansing as Genocide: Assessing the Croatian Genocide Case before the ICJ,’ [2015] 15 ICLR 1. 160 Croatia case (n 3), para 510. 161 Cecile Tournaye, ‘Genocidal Intent before the ICTY,’ [2003] 52 The International and Comparative Law Quarterly 2. 162 Plan de Sánchez Massacre v. Guatemala, (Judgment), IACHR Series C No 105 (29 April 2004), para 42. 163 José Luis Pérez Triviño, ‘La Noción de Intención en la Definición de Genocidio,’ [2012] 64 Revista Española de Derecho Internacional 2. 164 Sam Clearwater, ‘Holding States Accountable for the Crime of Crimes: An Analysis of Direct State Responsibility for Genocide in Light of the ICJ’s 2007 Decision in Bosnia v Serbia’ [2009] 15 Auckland U L Rev 1.

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the conduct of these state officials, manifested against the targeted group, could result in the destruction of the group in whole or in part, as long as the required mental state is present, and attributable to the state. This would lead us to believe that by merely examining the violent UoM’s actions against the Rohingya since the beginning of the clearance operations in 2016, we can infer the state’ genocidal specific intent (dolus specialis). However, this line of argumentation is very similar to Bosnia’s submission, which, in 2007, the ICJ found to be insufficient to establish Serbia’s genocidal specific intent (dolus specialis). Consequentially, despite Bosnia’s attempt to infer this specific intent (dolus specialis) from rhetoric and official publications aiming to forcibly change Bosnia’s demography, this was not enough to prove genocide in Bosnia (outside of Srebrenica) from 1992 to 1995. The ICJ in the Croatia case, as Ines Gillich explains, established an unusually high standard of proof for genocidal intent, which is higher than the tests applied by the Court in other cases of state responsibility.165 Thus, the Court expects to find this genocidal specific intent (dolus specialis) primarily in official state policy, and only alternatively through indirect evidence or inferred from patterns of conduct.166 Thus, it is imperative that The Gambia proves that the UoM acted with the specific intent (dolus specialis) to commit genocide of the Rohingya, and instead of attempting to infer this from rhetoric of state or non-state groups,167 it is more effective to prove this intent from state policy.168 The failure of the Bosnia case, as Sam Clearwater argues, may have been due to its legal team’s attempt to portray that the entire Bosnian territory was a theatre of genocide,169 while relying on inference of conduct. In the absence of a concrete and clear state genocidal policy, Bosnia’s application relied heavily on attempting to depict a genocidal policy from a conglomeration of similar acts over space and time.170 While this argument may have been difficult to make in the absence of a clear genocidal state policy, thus relying on patterns of 165 Ines Gillich, ‘Between Light and Shadow: The International Law Against Genocide in the International Court of Justice’s Judgment in Croatia v. Serbia (2015),’ [2016] 28 Pace Int’l L. Rev. 117. 166 Croatia case (n 3), para 143. 167 Bosnia case (n 2), para 242. 168 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge 2009) 518. 169 Sam Clearwater, ‘Holding States Accountable for the Crime of Crimes: An Analysis of Direct State Responsibility for Genocide in Light of the ICJ’s 2007 Decision in Bosnia v Serbia’ [2009] 15 Auckland U L Rev 1. 170 Mahmood Nawaz Khan, ‘Genocide, Territory, and the Geopolitics of International Adjudication: The Judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro,’ (Master’s thesis, University of Oregon, September 2011).

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behaviour, the existence of the UoM’s genocidal state policy against the Rohingya would provide the required mental element umbrella for these actus rei in the Arakan State at the hands of organs of the state. It is imperative to underline that this state policy is not written with the intention to assimilate or integrate the Rohingya into the UoM or more dominant Burmese or Rakhine groups, which, according to Mohamed Abed, would not fit the term of genocide as this would not entail the intentional destruction of the Rohingya as a group.171 Sandesh Sivakumaran adds that awareness of a serious danger of genocide would lead a government with the obligation to prevent, however the awareness that the crime of genocide is unfolding (or about to unfold) would entail the state’s complicity in the crime.172 The UoM may argue that the established state policy has the purpose of regulating a perceived unsustainable population growth similar to other nations’ legislation. The exclusive targeting of the Rohingya in these policies, however, and the effects of the added targeted violence, would lead to the state’s knowledge of unfolding genocide. 4.3.2 The UoM’s Genocidal State Policy against the Rohingya The Gambia’s Application cites statements from Mr Adama Dieng, the UN Special Advisor on the Prevention of Genocide, who, after his own investigation, concluded that the perpetrators’ aim was to cleanse the Arakan State of the Rohingya, possibly causing their genocide.173 Similarly, Ms Yanghee Lee, the UN Special Rapporteur on the situation of human rights in Myanmar, stated that the acts committed against the Rohingya amount to the crime of genocide, and incur the responsibility of the national military leadership.174 These reports and opinions, however, make reference to crimes against humanity, ethnic cleansing, and lack evidence of genocidal specific intent (dolus specials) 171 Mohamed Abed, ‘The Concept of Genocide Reconsidered,’ [2015] 41 Social Theory and Practice 2. 172 Sandesh Sivakumaran, ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)’ [2007] 56 International and Comparative Law Quarterly 3. 173 Adama Dieng, ‘Note to Correspondents: Statements by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on his visit to Bangladesh to assess the situation on Rohingya refugees from Myanmar,’ (United Nations, 12 March 2018) https:// www.un.org/sg/en/content/sg/note-correspondents/2018-03-12/note-correspondents -statement-adama-dieng-united-nations, accessed on 3 Dec 2021. 174 Yanghee Lee, ‘Statement by Ms. Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar at the 37th session of the Human Rights Council,’ (UNHCR, 12 March 2018) https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID =22806&LangID=E, accessed on 7 Dec 2021.

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when addressing the plausibility of genocide, as William Schabas indicated in the 2019 Oral Proceedings at the ICJ.175 The Application makes reference to Myanmar’s Citizenship Law of 1982, which officialises a number of national ethnic groups as UoM citizens.176 This national legal statute does not list the Rohingya, thus denying them citizenship and rendering them stateless. The Application further references the Township Peace and Development Council’s Regional Order 1/2005, which establishes marriage restrictions for followers of the Islamic faith by requiring special state permissions.177 As The Gambia submitted, an important aspect of the crisis is the amount of discriminatory government propaganda aimed at the Rohingya from religious, political and other civilian leaders.178 However, even more critical is the UoM’s government tolerance and lack of action to prevent or stop this rhetoric, which may provide evidence of the government’s genocidal intent.179 These statements and publications demonise the Rohingya as group, label the Rohingya as enemies, call for holocaust-like measures against them, and allege that they are attempting to eliminate Burmese and Buddhists alike.180 Amongst these statements is the UoM’s Ministry of Immigration slogan: ‘The earth will not swallow a race to extinction but another race will.’181 Additionally, the UoM’s former Presidential spokesperson posted on social media that the Rohingya are terrorists that the Tatmadaw will ‘completely destroy.’182 A number of civil leaders have also engaged in inciting anti-Rohingya violence across the country. Ashin Wirathu, a nationalist Buddhist leader, has publicly expressed anti-Rohingya rhetoric, warning that an Islamic population explosion would ‘capture our country in the end,’ and ‘in every town, there is 175 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Oral Proceedings) [2019], ICJ, paras 34–35. 176 Chapter II, Burma Citizenship Law of 1982 (Union of Myanmar). 177 Maungdaw Regional Order 1/2005 (Union of Myanmar). 178 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Request for Interim Measures) [2019], ICJ, para 37. 179 Ibid, para 37–46. 180 Ibid, para 37–40. 181 Krithika Varagur, ‘The Muslim Overpopulation Myth That Just Won’t Die,’ (The Atlantic, November 2017) https://www.theatlantic.com/international/archive/2017/11/muslim -overpopulation-myth/545318/, accessed on 13 Sep 2021. 182 Sebastien Roblin, ‘Facebook Let Myanmar Perpetrate Genocide,’ (War is Boring, 2 Novem­ber 2018) https://warisboring.com/facebook-let-myanmar-perpetrate-genocide/, accessed on 15 Nov 2021.

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a crude and savage Muslim majority.’183 In other speeches he referred to the Rohingya as ‘crazed dogs’ who breed fast and aim to steal and rape women, and told Buddhists to ‘make your blood boil’ regarding this Muslim minority.184 In an interview with the Global Post (2013), Wirathu expressed being unapologetic in being in the centre of national violence against the Rohingya in Myanmar, further referring to them as ‘African carp’ in reference to stereotypes of fast-breeding, violence and eating their own kind.185 Bosnia, Croatia, and Serbia committed similar extensive combinations of discriminatory practices, statements, and rhetoric, but the Court did not conclude that these sufficed to establish an official state policy as the basis of a specific intent (dolus specialis) of genocide, despite the tone. Unfortunately, The Gambia’s application relies heavily on the findings of the Fact-Finding Missions and comments of the possibility of genocide and, according to William Schabas’ statement in the case’s Oral Proceedings, fails to discuss alternative explanations in addition to not discussing genocidal specific intent (dolus specialis).186 This last point is critical as, per the ICJ’s ruling in the Bosnia case, these events must not have other plausible explanations or reasonable outcomes than the destruction of the group.187 In the Bosnia case, the ICJ placed great emphasis on the existence of a concerted plan or policy which would only lead to the outcome of the destruction of the group.188 According to Robin Smith, details of the necessary content of this plan are not very clear, however, the creation of an ethnically homogenous area, plans for military operations, or strategic goals of expansion, do not meet the requirement of a genocidal plan or policy.189 Smith further argues that the concerted plan must be a general practice of a state which promotes the destruction of the 183 Kate Hodal, ‘Buddhist monk uses racism and rumors to spread hatred in Burma’ (The Guardian, 18 April 2013) https://www.theguardian.com/world/2013/apr/18/buddhist -monk-spreads-hatred-burma accessed 18 July 2019. 184 Hannah Beech and Saw Nang, ‘He incited Massacre, but insulting Aung San Suu Kyi was the last straw’ (New York Times, 25 September 2019) https://www.nytimes.com/2019/05/29 /world/asia/myanmar-wirathu-monk-buddhism.html, accessed on 7 July 2019. 185 Tin Aung Kyaw, ‘Buddhist monk Wirathu leads violent campaign against Myanmar’s Muslims’ (Global Post, 21 June 2013) https://www.pri.org/stories/2013-06-21/buddhist -monk-wirathu-leads-violent-national-campaign-against-myanmars-muslims, accessed on 16 July 2019. 186 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Oral Proceedings) [2019], paras 38 and 45. 187 Bosnia case (n 2), para 373. 188 Ibid, para 370–376. 189 Robin M. Smith, ‘State Responsibility and Genocidal Intent: A Three Test Approach’ [2017] 34 AYBIL 1.

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group, instead of just tolerating genocidal acts against the targeted group, thus underlining the active genocidal nature of the state in its genocidal policy.190 The Gambia’s application does not mention critical laws in the UoM which specifically target the Rohingya, in particular the 2015 Race and Religion Protec­ tion Laws, which established measures targeting the Rohingya specifically.191 Within this legal umbrella are the Monogamy Law192 which outlaws polygamy throughout the nation, and the Religious Conversion Law, which outlaws religious conversions unless approved by locally established registration boards and only after the applicant has undergone specific periods of studies.193 The Interfaith Marriage Law regulates Buddhist marriage outside of the faith, forcing its public announcement, and is subject to public opposition.194 Lastly and more critical is the Population Control Law,195 as mentioned above, which allows local governments to impose limits on reproductive rates on Rohingya population if it causes a negative impact on regional development.196 In 2005, Arakan State authorities imposed a two-child policy solely targeting the Rohingya197 through the Township Peace and Development Council’s Regional Order 1/2005.198 This legislation limits Rohingya women to two children per marriage, a fertility rate drastically below population stability levels as a result of high child mortality rates, restrictions from state provided health care, disease, and targeted state-sponsored violence.199 The Population Control Law of 2015 additionally mandates a 3-year wait period between births to curve

190 Ibid. 191 ‘New govt to defend ‘race and religion’ laws at UN meeting’ (Myanmar Times, 6 June 2016) https://www.mmtimes.com/national-news/21218-new-govt-to-defend-race-and-religion -laws-at-un-meeting.html, accessed on 2 August 2019. 192 Law on the Practice of Monogamy, 2015 (Union of Myanmar). 193 Law Concerning Religious Conversion, 2015 (Union of Myanmar). 194 Buddhist Women Special Marriage Law, 2015 (Union of Myanmar). 195 Shameema Rahman and Wendy Zeldin, ‘Burma: Four ‘Race and religion laws’ adopted’ (Global Legal Monitor Library of Congress, 4 September 2015) http://loc.gov/law/foreign -news/article/burma-four-race-and-religion-protection-laws-adopted/, accessed on 17 July 2019. 196 Law for Health Care Relating to Control of Population Growth (Union of Myanmar), 2015. 197 ‘New govt to defend ‘race and religion’ laws at UN meeting’ (Myanmar Times, 6 June 2016) https://www.mmtimes.com/national-news/21218-new-govt-to-defend-race-and-religion -laws-at-un-meeting.html, accessed on 2 August 2019. 198 Maungdaw Regional Order 1/2005 (Union of Myanmar). 199 Jason Szep, Andrew R.C. Marshall, ‘Myanmar minister backs two-child policy for Rohingya minority,’ (Reuters, 11 June 2013) https://www.reuters.com/article/us-myanmar -rohingya-idUSBRE95A04B20130611, accessed on 3 January 2022.

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Rohingya population numbers.200 These birth-restriction policies have been in place against the Rohingya for three decades, further aggravated by the illegalisation of births out of wedlock.201 These regulations come as a fear that the Rohingya’s rapid reproductive rate threatens the Rakhine population within the state, as was verbalised by President Thein Sein in 2012 when he stated that ethnic tensions stem from ‘the rapid population growth of the Bengali.’202 Local authorities conduct checks and inflict severe penalties, including imprisonment of any Rohingya (the only ethnic group subject to these regulations) who violate this law.203 Therefore, this legislation having entered into force as early as 2005, further reinforced by national Constitution and legislation, is the UoM’s codified genocidal state policy with the purpose to destroy the Rohingya in part. Moreover, the existence of this genocidal state policy provides the essential proof required to meet the ICJ’s established standards of specific intent (dolus specialis), the existence of which is challenged by Schabas in his counterargument against The Gambias’ application and their argumentation based on inference.204 This is further supported by the findings of the Guatemalan Commission for Historical Clarification which found that the genocide against the indigenous groups was committed ‘obeying a higher, strategically planned policy’ which resulted in actions of a logical sequence.205 It is therefore this plan which becomes critical in establishing state responsibility by identifying that the perpetrators did not act individually, but rather that they were following state policy.206 In turn, those government officials and non-state leaders, by

200 ‘Why are the Rohingya fleeing Myanmar’ (Amnesty USA, 28 May 2015) https://www.amnes tyusa.org/why-are-the-rohingya-fleeing-myanmar/ accessed on 20 July 2019. 201 Jonathan Abbamonte, ‘When population control becomes genocide’ (Population Research Institute, 28 March 2018) https://www.pop.org/when-population-control-becomes-geno cide/, accessed on 21 July 2019. 202 Kyaw Phyo Tha, ‘Use controversial citizenship law to asses Rohingyas’ Rights: Govt Report’ (The Irrawaddy, 29 April 2013) https://www.irrawaddy.com/news/burma/use-controver sial-citizenship-law-to-asses-rohingyas-rights-govt-report.html, accessed on 11 June 2019. 203 Chris Lewa, ‘Two-child policy in Myanmar will increase bloodshed’ (CNN, 6 June 2013) https://edition.cnn.com/2013/06/06/opinion/myanmar-two-child-policy-opinion/index .html, accessed on 5 August 2019. 204 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v The Union of Myanmar) (Oral Proceedings) [2019], para 52. 205 ‘Guatemala: Memory of Silence,’ Report of the Commission for Historical Clarification, Conclusions and Recommendations,’ [1999] 74 Die Friedens-Warte 4, para 120. 206 William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge 2009) 250.

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committing these atrocities in full knowledge of this plan or policy, have met the Convention’s requirements of commission of the crime of genocide. It is important to stress that the Rohingya genocide did not commence with the violent actions of military, local police, and mobs in 2012, 2016 or 2017. This crime began as early as the adoption of the targeted reproductive restriction legislation on the Rohingya in 2005. As Schabas mentions that genocide does not equate to the imminent destruction of the group, instead it is the conglomeration of measures (violent and non-violent), which aim at destroying the group’s essential life foundations, and the goal of annihilating the group.207 Thus, the state sponsored violence is merely a catalyst of the UoM’s goal of annihilating the Rohingya as a group, which began with the targeted reproduction restrictive legislation of 2005. UoM’s anti-Rohingya state policy is strictly targeted at the Rohingya, is not with the objective of assimilation, and goes beyond exclusion or mere discrimination.208 This UoM state policy aims at establishing a legal base for the inevitable destruction of the Rohingya as a group. The combination of this state policy and the events against the Rohingya nevertheless prove the aim not just to clear the Arakan State from any trace of this protected group, but to ensure its destruction. The combination of the UoM’s Constitution, national legislation, national allowances for local legislation, and local enforcement, create this genocidal state policy in accordance the ICJ’s established standard. The addition of the acts of genocide by the military, local police, and non-state groups provide the accompanied genocidal acts under Article 2 of the Convention,209 and show the conduct which results in the destruction of the Rohingya in whole or in part. 5

Conclusion

The Rohingya’s ethnic, racial and religious characteristics meet the Conven­ tion’s definition of ‘protected group.’ The UoM’s targeting of Arakan State’s Rohingya, which amounts to nearly one third of their global population, meets the ‘in part’ substantial requirement. The overwhelming evidence provided in the multiple investigations and reports meets the actus rei under Article 2(a), (b), and (c) of the Convention,210 as per the ICJ established standards. 207 208 209 210

Ibid, 31. Prosecutor v. Jelisić (Judgment) IT-95-10-T (14 Dec 1999), paras 62–66. Genocide Convention, art 2. Genocide Convention, arts 2(a), (b), and (c).

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However, The Gambia’s argumentation to support Articles 2(d) and (e) is insufficient and will not meet the ICJ standards established in previous cases. Therefore, the success in proving the existence of these two actus rei depends heavily on the analysis of the UoM’s Constitution, national and local legislation, demographical studies, and victim interaction within the Rohingya as a group. More importantly, The Gambia’s application follows previous cases’ attempts to infer the required genocidal specific intent (dolus specialis) from government rhetoric and violence. It is not necessary, however, to infer the UoM’s genocidal specific intent (dolus specialis), as it is found more evidently in national legislation. The required genocidal dolus specialis is found in official UoM policy, codified into the national Constitution,211 legislation such as the Township Peace and Development Council’s Regional Order 1/2005,212 and the 2015 Race and Religion Protection Laws.213 This state policy prevents Rohingya births, forcibly transfers Rohingya children to the perpetrator’s group, and establishes genocidal state policy against the Rohingya. Consequentially, this evidence and argumentation meet the Convention’s and ICJ’s established standards as Schabas has argued. In parallel with the ICTY’s Krstic case, ICJ’s Bosnia and Croatia cases Courts’ decisions, this UoM’s state policy leaves no other reasonable outcome than the destruction of the Rohingya in the UoM, the largest global percentage of this protected group. 211 Burma Citizenship Law of 1982, Chapter II, (Union of Myanmar). 212 Maungdaw Regional Order 1/2005 (Union of Myanmar). 213 Race and Religion Protection Laws of 2015 (Union or Myanmar).