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International Law - Eksamensforberedelse Sources in international law................................................................................................. 4 ICJ Statute Article 38.............................................................................................................

International Law - Eksamensforberedelse Sources in international law................................................................................................. 4 ICJ Statute Article 38........................................................................................................... 4 Legal personality...................................................................................................................... 5 Jurisdiction............................................................................................................................................. 5 Jurisdiction to prescribe.....................................................................................................................5 Territorial jurisdiction................................................................................................................. 5 Cross border..........................................................................................................................5 Jurisdiction on the basis of nationality........................................................................................6 The passive personality principle................................................................................................6 Protective jurisdiction................................................................................................................. 6 Universal jurisdiction..................................................................................................................7 Concurring/overlapping jurisdiction........................................................................................... 7 Jurisdiction over aircraft and ships............................................................................................. 8 Jurisdiction to enforce....................................................................................................................... 8 State responsibility................................................................................................................... 9 State immunity (Victor)........................................................................................................9 Immunity of state representatives....................................................................................................10 Diplomatic immunities and protection............................................................................... 10 Attribution of conduct........................................................................................................ 11 Attribution for acts performed by organs exercising governmental authority............. 12 Attribution for acts performed by organs ‘on loan’ from another state....................... 12 Responsibility for acts ultra vires.................................................................................12 Attribution for acts performed by private individuals..................................................12 State responsibility in relation to acts of other states......................................................... 13 Circumstances precluding wrongfulness............................................................................14 Consent.........................................................................................................................14 Self–defence................................................................................................................. 14 Lawful countermeasures.............................................................................................. 14 Distress......................................................................................................................... 15 Necessity...................................................................................................................... 15 Circumstances precluding wrongfulness and jus cogens............................................. 15 Who may invoke a breach of responsibility of international law?.....................................16 The international responsibility of international organization........................................... 16 The international law of the sea............................................................................................ 17 The sources of the international law of the sea.................................................................. 17 The spatial partitioning of the sea...................................................................................... 17 The concept of baselines.............................................................................................. 17 Internal waters and the territorial sea........................................................................... 18 The contiguous zone.....................................................................................................18 1  The exclusive economic zone (EEZ)............................................................................19 The continental shelf.................................................................................................... 19 The Area—exploitation of the deep seabed................................................................. 19 The high seas................................................................................................................ 19 Delimitation of maritime zones....................................................................................19 Piracy..................................................................................................................................19 Conservation of marine life................................................................................................20 Dispute settlement in the law of the sea............................................................................. 20 The peaceful settlement of disputes...................................................................................... 20 Non-adjudicatory means of settling international disputes............................................................. 20 Arbitration (voldgift)....................................................................................................................... 20 The ICJ............................................................................................................................................ 20 The international regulation of use of force.........................................................................21 Køreplan...........................................................................................................................21 The UN Charter and the prohibition on the use of force................................................................. 21 The security council and the maintenance of international peace and security...............................22 the unilateral (ensidig) use of force by states................................................................................. 23 A plea of necessity...........................................................................................................................25 Contentious use of force.................................................................................................................. 25 The law of armed conflict...................................................................................................... 25 The application of international humanitarian law..........................................................................26 International armed conflict (IAC)........................................................................................... 26 Non-international armed conflict (NIAC).................................................................................26 Transnational armed conflict........................................................................................................... 27 Changes to conflict status................................................................................................................ 28 IAC -> NIAC............................................................................................................................ 28 NIAC -> IAC............................................................................................................................ 28 Battlefield status in international armed conflict.............................................................................28 Combatants................................................................................................................................28 Civilians.................................................................................................................................... 29 The basic principles of the conduct of hostilities............................................................................ 29 Non-international armed conflict.....................................................................................................30 The relationship between international humanitarian law and human rights law........................... 30 International criminal law.....................................................................................................31 sources of international criminal law...............................................................................................31 prosecution of international crimes before international courts...................................................... 31 Process guarantees.................................................................................................................... 35 national prosecution of international crimes................................................................................... 35 Ting at have med til eksamen: Judgements: Teheran Hostage, Rainbow Warrior, 2 PDF: Bog PDF, rettevejledninger + opgaver, Oscars PP samling, Amnon Lev’s “additional teaching material”, Retskilder: ARSIWA (state responsibility), UNCLOS (law of the sea), UN Charter, 3 Sources in international law ICJ Statute Article 38 The classical attempt at listing the sources of international law is found in article 38 of the ICJ Statute: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. (a, b and c have the same hierarchical value and constitutes primary sources, while d constitutes secondary sources) All legal sources carry the same weight (except for the primary and secondary sources mentioned in article 38 of ICJ Statute) (IL p. 34) The 3 exceptions: 1.​ jus cogens -​ refers to rules that are a threat to the survival of the states and peoples most basic human right -​ substantive obligations that cannot be derogated 2.​ erga omnes -​ communitarian norms -​ can be invoked by any state and not just the immediate beneficiary (erga omnes partes) 3.​ obligations under the UN charter 4 Legal personality The highest level of legal personality is sovereign states. They are the only things that can create new international law, since everyone else derives their personality from states. States need to adhere to the Montevideo criteria (see p. 63) Individuals can also gain rights and obligations from international law The rights are found in human rights conventions, while the obligations can be found in for example the ICC. Jurisdiction Jurisdiction to prescribe Territorial jurisdiction Generally, a state has jurisdiction over all acts, whether criminal or not, committed on its territory and over everyone located on the territory of that state. This is subject to limitations imposed under human rights law, but a state can legislate as it pleases on whatever matter it so desires on its own territory. Territory refers to land, territorial sea and the airspace above. p. 85-86 Cross border International law has developed two approaches to deal with ‘cross-border’ activities. Objective territoriality -​ Has a focus on the effects of an offence and holds that a state will have jurisdiction over an offence that is completed on its territory even though some of the elements of the offence took place abroad Subjective territoriality -​ Stipulates that a state has jurisdiction over all acts that are completed abroad as long as they are initiated or planned on the territory of the state in question. The subjective approach is of great practical importance in fighting transnational crime, such as international cybercrime. How to distinguish between objective and subjective territoriality? 5 The distinction between objective and subjective territoriality can be illustrated by the 11 September 2001 terrorist attacks in the United States. As the attacks were completed on US territory, the Americans had jurisdiction over the attacks on the basis of objective territoriality. But since a substantial part of the planning and preparation of the attacks occurred elsewhere, most notably in Afghanistan and Germany, other states could derive a claim of jurisdiction on the basis of subjective territoriality Jurisdiction on the basis of nationality States may extend their laws to their own nationals regardless of where they are located. It is based on the “active personality” principle (Forskel se nedenfor) If an individual has dual nationality, both states of nationality may assert jurisdiction on the basis of nationality. States are generally free to decide who they consider to be their ‘nationals’ and under what circumstances an individual qualifies for citizenship. The passive personality principle According to the so-called ‘passive personality’ principle, a state can assert its jurisdiction over an offence committed abroad on the sole ground that the victim of the offence was a national of the state. Problem: The passive personality principle makes it practically impossible for a potential offender to anticipate which state’s laws he or she may be subjected to and it creates uncertainty about acceptable behaviour within a state. Case law: In the Yunis case, for example, the United States prosecuted a Lebanese citizen for hijacking a Jordanian civilian airliner in Beirut even though the only connection to the United States was the presence among the passengers of American citizens. Retspolitik: Jurisdiction on the basis of passive personality ought to be limited to serious offences (e.g. crimes of terrorism) that are prescribed in all states Protective jurisdiction The ‘protective principle’ holds that a state may extend its jurisdiction over any matter that has a deleterious effect on it regardless of where the acts occur or who has committed it. 6 Protective jurisdiction is derived from the sovereign right of all states to conduct their affairs without outside interference. Requirements: The exercise of protective jurisdiction does require, however, the existence of a genuine threat to a vital state interest and it must not, therefore, be confused with the controversial effect doctrine visited earlier whereby a state extends its laws to acts that merely have a negative economic effect in the state. Example: The classic example of the exercise of protective jurisdiction is the prohibition of falsification or counterfeiting of ‘seals, currency, instruments of credit, stamps, passports, or public documents’, issued by the state. Another example was the prescription in the 1960s of so-called ‘pirate radio broadcasting’ emanating from unauthorized radio stations on ships on the high seas or from installations fixed to the seabed in areas outside the territorial sea of the coastal state. Universal jurisdiction International law recognizes that certain offences are so serious and/or disruptive to international society that any state may claim jurisdiction over them no matter where they have been committed or by whom. Violations of norms of a peremptory character/jus cogens, such as genocide, crimes against humanity, serious war crimes and torture, are the most serious offences under international law and therefore constitute obvious candidates for being crimes under universal jurisdiction even in the absence of a treaty-based entitlement. Concurring/overlapping jurisdiction In most cases, the territorial state will claim that it has the closest link to a particular offence and therefore has a more privileged position compared to states with ‘competing’ claims of jurisdiction. In practical terms, it will be the state with physical custody of the offender that determines which state will exercise jurisdiction over the individual. 7 There have been attempts made to make rules for overlapping jurisdiction. There it lists relevant factors for determining jurisdiction. These include -​ ‘the link of the activity to the territory of the regulating state’ -​ ‘the character of the activity to be regulated’ -​ ‘the extent to which another states may have an interest in regulating the activity’ -​ ‘the likelihood of conflict with regulation by another state’ Jurisdiction over aircraft and ships The 1944 Chicago Convention on International Civil Aviation stipulates that all states have complete and exclusive sovereignty over the airspace above their territory, The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft specifies that the state of registration of an aircraft has authority to apply its laws to matters that occur on board its aircraft while in flight regardless of where it is located Jurisdiction to enforce As the PCIJ said in the Lotus case, if there is no permissive rule, the state may not exercise its power in any form in the territory of another state. A state cannot even enforce in cyberspace if this would violate the sovereignty of another state. If a state violates this principle, it breaches sovereignty. Enforcement without the agreement of the host state Historically there have been cases where enforcement jurisdiction was exercised without the agreement of host states (e.g. The Eichmann case – the UN Security Council responded to the illegal Israeli incursion to Argentina by requesting Israel to offer compensation) There is controversy over whether states can try an individual that was brought to the country illegally. In the 1935 Draft Convention on Jurisdiction with Respect to Crime it was suggested that states should not prosecute individuals that were captured against international law. 8 The practice is different and other bodies developed less constraining limitations on prosecution – mala captus, bene detentus means states can prosecute even if the defendant was brought by irregular means (prosecution will not be possible only if the person was tried for a different offence from the one he was extradited for, or if there was a protest by another state who requests the return of that person). State responsibility The point of departure is that all conduct of state organs is considered an act of the state regardless of whether the organ in question “exercises legislative, executive, judicial or any other functions”, cf. art. 4 ILC. State immunity (Victor) States are almost completely protected, cf. p. 100, IL HA. Members of a delegation of a diplomatic mission, is contained in the word state, cf. UN convention 2004, art. 2 (b) (ii). States are only immune from acts that can be made by a sovereign state (jure imperii), following customary international law (the 2004 UN convention). This entitles that states are not immune from commercial acts (jure gestonis), the traditional test shall be used. It shall therefore be asked whether this act can be made by a private individual, cf. p. 102, IL HA. Exception to state immunity Art. 11-17 of the 2004 UN Convention supplement has the general exceptions for commercial activities ​ Primarily insurable risks from injuries and damage caused by traffic accidents, ​ Immovable property located on the territory of the forum state. 9 specified on p. 103-104 Immunity of state representatives (Magnus) Some state representatives enjoy certain immunities from national jurisdictions. There are two variables for immunity. First the immunities extend and secondly the type of immunity. The type of immunity can either be personal immunity or functional immunity. Personal immunity comes from the fact that a person has a certain position and stretches to both official and private acts and before and while the person has immunity. Personal immunity is only granted to the highest-ranking officials like the head of state. Functional immunity relates to the specific function that the person performs. It therefore only grants immunity for official acts. The action in question was committed by “XXX”. An official of this level has XXX immunity. Therefore, it is relevant to discuss whether the action was committed in an official capacity or if it was a private action. The delegate drives home from the celebration following the signing ceremony. The act of driving home is a private action, which means that the crime was committed in a private capacity. Based on this the senior members functional immunity does not grant him immunity for his actions. IL p. 107 til det hele Diplomatic immunities and protection Immunity of diplomatic agents is regulated in article 31 of the VCDR. It stipulates that agents enjoy immunity ratione personae. There are exceptions in regards to Persona non grata is when a diplomat is no longer welcome in the host nation and therefore needs to return home, cf. VCDR 9(1). An example of personae non grata is Russian diplomats who were accused of conducting intelligence operations.​ 10 Attribution of conduct (Magnus) To start with, it needs to be examined whether the act in question breaches XXX’s international obligations, cf. ILC article 1 and 2. It is possible for acts to be attributed to a state. The different ways are regulated in ILC articles 4-11. (IL 122) Generally states are not responsible for actions committed by private individuals or other states. (IL 122) Art. 11 of the ILC states that a state becomes responsible for conduct that was not attributable to it when it was committed, if the state subsequently acknowledges and adopts the actions as its own… a state must also show a willingness to assume responsibility for the acts, and mere statements of support, sympathy or general acknowledgments of factual circumstances are insufficient, cf. p. 126, International law, Henrik Andersen (from now on IL, HA). The principal of state responsibility is reflected in art. 1 of the ILC. This article states that every internationally wrongful act of state entails the international responsibility of that state, cf. p. IL HA, p. 120. Furthermore, art. 2 of the ILC states that responsibility for a state, consist of 2 elements. 1) conduct must be a breach of international obligations. 2) the conduct must be attributable to a state. -​ EXC: However, another way a state can be responsible for acts that aren’t attributable to them, is reflected in the principle of due diligence. This principle stipulates, that a state must seek to prevent activity on its territory, from causing significant damage in or to another state, cf. p. 29, IL HA. Attribution for acts performed by the state and its organ Article 4 (Magnus) ILC article 4 stipulates that conduct of state organs is considered an act of the state and therefore attributable to the state. An example of this can be seen in LaGrand where the US government was held responsible for act committed by the state of Arizona.(IL 122-123) In Genocide the ICJ determined that the Federal Yugoslavian government wasn’t internationally responsible for the 1995 Srebrenica massacres in Bosnia. The reason for this judgement was that the local Bosnian Serb groups didn’t fulfill the condition of attribution, 11 since the groups would only be considered a organ of the state if they acted in “complete dependence on the State, of which they are ultimately merely the instrument”(IL 123) Attribution for acts performed by organs exercising governmental authority Article 5 (Jakob) According to article 5, conduct of individuals and entities empowered to exercise governmental authority is attributable to the state whenever they act in that capacity. Thus, a state cannot avoid responsibility by outsourcing functions that are properly governmental, cf. p. 123, IL HA. Attribution for acts performed by organs ‘on loan’ from another state Article 6 (Jakob) Article 6 of the ILC articles covers the rather exceptional situation where a state places one of its organs at the disposal of another state. Examples include health service units in crisis situations and the occasional appointment of judges. Responsibility for acts ultra vires Article 7 (Jakob) Article 7 of the ILC articles provides that a state remains responsible for conduct performed by its organs and officials even if the organ or official acted contrary to orders and instructions or in excess of authority—conduct ultra vires, cf. p. 124, IL HA. Attribution for acts performed by private individuals Article 8 (Jakob) Article 8 of the ILC articles specifies that a state is only responsible for the conduct of a person or a group of persons if the latter is ‘in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct’. State responsibility therefore only exists in two situations. Either the individuals must be acting on the instructions or orders of the state or they must act under the direction or control of the state, cf.p. 125 IL HA (Jakob) (Magnus) Regarding control or direction, the state needs effective control over the individuals, cf. ICJ in Nicaragua. (IL 125) Acts of an insurrectional movement 12 Article 10 (Magnus Copy pasted fra bogen) Article 10 of the ILC articles stipulates that the state will be responsible for the acts of the movement.It is a well-established principle that the acts of insurrectional movements are not attributable to the state. If, however, the movement succeeds in assuming power and establishes itself as the new government of the state, or manages to form a new state in part of the territory of the preexisting state, Responsibility of acts subsequently acknowledged and adopted Article 11 (Magnus) ILC article 11 stipulates that a state may be held accountable for actions not initially attributable to it if the state subsequently acknowledges and adopts those actions as its own. In the Tehran Hostages case, the Iranian government became responsible for the seizure of the U.S. embassy and the taking of hostages by private Iranian citizens when it endorsed these actions and used them as leverage against the United States of America. (IL 126) In contrast, while the minister’s statement in the case can be interpreted as an acknowledgment of the actions of X, it cannot be considered an adoption of those acts as X’s own. Unlike in the Tehran Hostages case, where the Iranian government seized the opportunity of the wrongful acts to further its own agenda, XXX. This demonstrates a clear rejection of the wrongful acts rather than an endorsement or adoption of them. (IL 126) Therefore, XXX, cf. ILC article 11. State responsibility in relation to acts of other states art. 16 of the ILC (customary international law), a state is internationally responsible for aiding or assisting another state in the commission of an international wrongful act if: 1.​ the aid or assistance is given with knowledge of the circumstances of the international wrongful act 2.​ the act would be internationally wrongful if it was committed by the aiding or assisting state, cf. p. 127 IL 13 Wrongful acts: 1.​ assisting in the use of force, cf. art. 2(4) of the UN Charter 2.​ assisting in violating human rights (detaining and torturing suspected terrorist), cf. p. 127. high threshold as it cumulatively requires: 1.​ knowledge 2.​ intended to facilitate the occurrence -​ practice Genocide in the bottom of p. 127. Circumstances precluding wrongfulness Consent According to article 20, valid consent by a state to the commission of an act precludes the wrongfulness of that act as long as the act does not exceed the limits of that consent. Valid consent The consent must be valid and for the consent to be valid the person giving consent must be authorized to give consent. The consent must be given freely without coercion and it must be clearly expressed. It must, furthermore, be given either beforehand or at the time otherwise wrongful conduct occurs. It must therefore be determined whether XXX is allowed to give consent. Self–defence ILC Article 21 specifies that the wrongfulness of an otherwise unlawful act is precluded if it is in conformity with the inherent right to self-defence in article 51 of the UN Charter. Lawful countermeasures According to ILC article 22, a state has a right to breach its international obligations towards another state “if and to the extent that the act constitutes a countermeasure taken against the latter State”. In US–French Air Services Arbitration it is stated: “If a situation arises, which in one State’s view, results in the violation of an international obligation by another State, the first State is entitled (...) to affirm its right through “countermeasures”.” (IL p. 223?) The specific articles that regulate lawful countermeasures are ILC articles 49-54. 14 It must be temporary and lifted as soon as possible. Things that cannot be a countermeasure -​ Use of force cannot be a lawful countermeasure -​ Countermeasures may not infringe ‘obligations for the protection of fundamental human rights’ (It is unclear which human rights are considered fundamental.) -​ of a ‘humanitarian character prohibiting reprisals’ -​ peremptory/jus cogens norms Force majeure Article 23 of the ILC stipulates that a state may justify not upholding their obligation in the case of an “occurrence of an irresistible force or of an unforeseen event beyond the control of the State”. There are two circumstances that grant a state a force majeure defense. (IL p. 130) The PCA found in Rainbow Warrior that force majeure requires it to be impossible to comply with the state’s obligations. Circumstances that render performance more difficult or burdensome are not force majeure. (IL p. 130) Distress Article 24 (distress) precludes the wrongfulness of conduct adopted by a state agent in circumstances where the agent had no other reasonable way of saving life. Necessity Necessity is regulated in ILC article 25. There must be “a grave and imminent peril”. Circumstances precluding wrongfulness and jus cogens art. 20-25 cannot preclude wrongful acts that violates peremptory norms/jus cogens peremptory character/jus cogens includes: -​ the crime of genocide -​ the prohibition on torture -​ the ban on slavery -​ piracy, aggression 15  -​ crimes against humanity -​ the right to self determination -​ the prohibition of apartheid and gross racial discrimination, cf. p. 132 Consequences of wrongful conduct 2 most important -​ obligations to cease the wrongful conduct ILC 30 -​ reparations ILC 31 Who may invoke a breach of responsibility of international law? (Bare fra hukommelsen) As a general rule only the injured party can invoke a breach of responsibility, however, in cases of erga omnes (genocide) character everyone can invoke international law. (South Africa -> Israel in Gaza) or (Gambia(?) -> Myanmar (?)) -​ relevant in relation to genocide, crimes against humanity, terrorism and so forth. The international responsibility of international organization The 2001 ILC articles on the responsibility of States art. 57, stipulates that they do not apply to the responsibility of international organizations. D) of an international organization -​ art. 2 (a) of the draft articles on responsibility of international organizations (DARIO) -​ “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality art. 3 grants every internationally wrongful act of an international organization entails international responsibility for that organization, cf. p. 139. the conduct needs to be attributable to the organization, cf. art. 4. (covers both acts and omissions) 16 conduct is attributable to the organization when the conduct was performed by an organ or an agent of the organization, regardless of the position held by that organ/agent, cf. art. 6 agent includes: individuals without official positions in the organization, if they perform conduct under the direction or control of the organization, cf. p. 139 actors on loan to an organization acts are attributable to the organization, if it exercises effective control over their conduct, cf. art. 7 Effective control is unclear, in practice for effective control to happen: 1.​ Ultimate authority and control. when operational control only was delegated to the states, cf. Behrami and Behrami v France a.​ criticized for states to escape international responsibilities 2.​ factual control and operational control is more important than ultimate control, cf. Al-Jedda 3.​ the organization directs the forces when the relevant conduct occurs. the conduct can be attributed to both the international organization and the lending state or organization, cf. p. 140 The international law of the sea The rules of the sea are found in UNCLOS The sources of the international law of the sea The spatial partitioning of the sea The concept of baselines MR) art. 5 of UNCLOS “the normal baseline is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. 17  -​ E) pacific islands (such as Australia) har declared that they intend to maintain their existing maritime zones, and therefore are fixed coordinates (due to rising sea levels) -​ art. 7 (1) of UNCLOS accepts straight baselines -​ conditions for this 1.​ the baseline may not depart to any appreciable extent from the general direction of the coast 2.​ sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters, cf. art. 7 (3) 3.​ certain economic interests peculiar to the region, the reality and importance of which are clearly evidenced by a long usage can be a relevant factor, cf. Anglo-Norwegian Fisheries bay: in case there is a bay, the closing line of the bay will be used as a baseline. A bay exists if a semi-circle drawn from its natural entrance point has a smaller area than the area of water landward of the closing line. The closing line is drawn either between entrance points less than 24 nautical (n) miles (1 n. mile=1.852 km) apart or WITHIN a larger bay so that they enclose the maximum amount of water. Special rules apply to large historic bays over which the state continuously exercised jurisdiction with the acceptance of other states, cf. p. 146. Harbour installations: if attached to the coast can be considered as part of the coastline, cf. art. 11 of UNCLOS Internal waters and the territorial sea Exclusive rights of the state. Straits are different The contiguous zone Look at the powerpoint 18 The exclusive economic zone (EEZ) 12 nM The continental shelf Adherent feature of sovereignty - 200 nM but may reach beyond (geological criteria) The Area—exploitation of the deep seabed No rights compared to everyone else The high seas No rights compared to everyone else Delimitation of maritime zones Look at the powerpoint Piracy Definition in art. 101 if UNCLOS on p. 159 Customary international law grants all states a right to assert universal jurisdiction over the crime of piracy. According to UNCLOS (acts not complying with these are covered by different sources) Limitations: 1.​ Private acts -​ entails acts of violence perpetrated by environmental groups 2.​ Must involve 2 ships -​ internal hijacking is not covered by UNCLOS 3.​ Must be committed in high seas or in an EEZ or in a place outside the jurisdiction of any state Seizing of pirates. Art. 105 -​ every state may seize a pirate ship or aircraft, taken by piracy and under the control of pirates, and arrest the persons and seize the property on board 19 The Security Council authorized states to use necessary means to fight piracy in the territorial waters and on the land of Somalia. Conservation of marine life Look at the powerpoint Dispute settlement in the law of the sea Look at the powerpoint. The peaceful settlement of disputes Non-adjudicatory means of settling international disputes The most common means of resolving a dispute is for the parties to directly negotiate a suitable solution. The term ‘good offices’ is used when a third party—usually an entity that is deemed neutral and trustworthy by the parties—offers to facilitate and support potential efforts to enter into direct negotiations. Arbitration (voldgift) probably not relevant. final decisions which can be done in privacy between 2 states. The ICJ Jurisdiction: The ICJ's jurisdiction is conditioned on consent of the parties. Consent can be expressed in four different ways, cf. art. 36 of the ICJ Staute: 1.​ An explicit agreement, compromis, in which the parties submit a specific dispute to the court. 2.​ A state can become a party to a treaty where the parties agree to submit disputes to the ICJ. 3.​ A state can make a declaration (optional clause) under article 36(2) of the ICJ statute accepting the ICJ's jurisdiction in relation to future disputes against another state that accepted the same obligation. 20  4.​ Forum Prorogatum – a state that has not consented to the jurisdiction of the Court at the time the application was filed against it subsequently consents in a voluntary and indisputable manner The effects of the decisions: Art. 60 – final and without appeal Art. 61 – discovery of some fact of such nature as to be a decisive factor that was previously unknown for the court(opens up for re appeal) Advisory opinions: Art. 65 (1) – court may give an advisory opinion on any legal question at the request of a body authorized to make such a request. Provisional measures - Article 41 of the ICJ Statute stipulates that the Court has the ‘power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. The purpose of provisional measures is to ‘preserve the respective rights of the parties pending the decision of the Court’. The international regulation of use of force Køreplan The UN Charter and the prohibition on the use of force Art. 2 (4) a prohibition on all use of force D) The prevailing view is that use of force is limited to armed measures, cf. p 260 in case of cyber attacks: 21 The 2017 Tallin Manual 2.0 states that a cyber operation constitutes a use of force, when its “scale and effects are comparable to non-cyber operations rising to the level of a use of force”, cf. p. 260 IL HA Interferences that fall below the threshold of constituting force: Cases where it may be a breach of sovereignty but not use of force. Example peacetime espionage It can also be The security council and the maintenance of international peace and security Determinations under art. 39 -​ any threat to the peace, breach of the peace, or act of agression -​ EX -​ internal conflicts -​ humanitarian crises, violations of democratic principles, acts of terrorism, piracy, pandemics, the prevention of foreign terrorist fighters, cf. p. 264 Provisional measures er under art. 40 is about calls for a ceasefire, withdrawal of troops must be temporary, and may be binding, cf. p. 265 Non-forcible measures under art. 41. economic sanctions, smart sanctions (targeted sanctions for those who are the primary cause of threat to the peace), cf. p. 265 enforcement under art. 42. -​ authority to mandate actions by air, sea or land forces as may be necessary, cf. p. 266 -​ peacekeeping operations -​ doesn’t need consent from the territorial state, but it isn’t uncommon for there to be consent, cf. p. 268 -​ regional organizations or agencies may be utilized for enforcement action under its authority, cf. art. 53 22 limits on the authority: -​ general principles in art. 1 and 2 of th UN -​ can only deal with international threats to peace and security -​ a state cannot be obliged to disregard norms of jus cogens/peremptory norms -​ must respect human rights law, refugee law and international humanitarian law, cf. p. 268 the unilateral (ensidig) use of force by states the use of force in self-defense is the only exception to art. 2 (4) of theUN Charter, that can be proclaimed unilaterally, cf. p. 270 “an armed attack”: For a state to use self-defense, they must be under an “armed attack” the provision of weapons or logistical or other suppert to rebels as well as a mere frontier incident falls outside of art. 51 (selfdefense), cf. Nicaragua examples of an armed attack: -​ territorial invasions -​ human fatalities -​ massive destruction of property, cf. p. 271-72 -​ cyber attacks that leads to sufficiently serious consequences in a direct and foreseeable manner, cf. p. 272 grey area: -​ mining of a single military vessel might be sufficient, cf. Oil Platforms. -​ accumulation of events doctrine -​ attacks on objects or individuals located on the territory of a state or on a states military installations and/or military personnel abroad may constitute an armed attack on the state, cf. p. 272 -​ attacks on a states diplomatic missions and/or diplomatic representatives, cf. p. 272 attacks by private actors 23 a state may initiate self-defense against a private actor such as a terrorist organization, located in another state, if the host state does not have the ability or willingness to stop the private actors activities, cf. p. 273 -​ unable or unwilling doctrine. -​ 9/11 was the turning point for that to be accepted, cf. p. 272-273 The initiation for self-defense art. 51 -​ when an armed attack occurs, cf. p. 273 -​ ex of unlawful selfdefense on p. 274 -​ if the council adopts a binding decision that orders a state to cease using force in self-defense the latter must comply, cf. p. 276 anticipatory self-defense against an expected assault can happen, if the threat is imminent, cf. p. 273 -​ this must be interpreted narrowly -​ only relied on in exceptional circumstances. -​ if there is absence of information that a state is on the verge of committing an armed attack, then it is not compatible with art. 51 Necessity: -​ a state must ascertain if other, more peaceful means of redress are available before using force in self-defense. It must be the last resort, cf. p. 274 -​ self-defense is under obligation to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation, cf. Caroline Case -​ The requirement of “immediacy” must be interpreted broadly cf. p. 274 Proportionality -​ requires the victim state to strike a fair balance between the armed attack and the measures taken to stop it, cf. p. 274 -​ it did nothing unreasonable or excessive: since the act, justified by the necessity of self-defense, must be limited by that necessity and kept clearly within it, cf. Caroline Case -​ The use of force used in self defense may be greater than the use of force used against the state, as long as it isn’t excessive to reach the legitimate aim, cf. p. 274-275. 24 Criticism In relation to terror: 1.​ it may appear punitive rather than aimed at preventing a threat against the state and resemble a reprisal 2.​ the armed response may appear to be unlawful, pre-emptive or even preventive use of force applied in order to protect against future attacks 3.​ the attacks may appear disproportionate if it is employed against a fairly small-scale terrorist attack. Collective self-defense: a state may be entitled to use force in defense of another state that has been the victim of an armed attack. requires: -​ the attacked state to declare itself under attack and request of assistance. A plea of necessity is problematic to invoke against the use of force, as the charter is the exclusive source of the international legal regulation of interstate force in the sense that it rules out the invocation of necessity, cf. p. 277 Contentious use of force the use of force to rescue nationals abroad 2 ways for this to be legal 1.​ to argue that the threat posed to the nationals - even though they are located abroad - constitutes an armed attack on their home state that triggers a right to self defense, cf. p. 277 2.​ argue for the existence of a right in customary international law, as opinio juris exist. -​ doesnt seem to be accepted in international law, cf. p. 278 it must be comply with the principle of necessity and proportionality and requires that the host state is unable or unwilling to secure the safety of the individuals, cf. p. 277 The law of armed conflict Jus in bello - How military operations must be conducted 25 The application of international humanitarian law International armed conflict (IAC) Article 2 of the Geneva Conventions stipulated that the Conventions apply in ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’. Any conflict between two states (even if they just fulfill the conditions of statehood), no matter how long the conflict is and no matter if the involved states recognize the existence of an armed conflict, is an international armed conflict. The 1977 Additional Protocols extend their application to armed conflicts in which people are fighting against colonial domination, alien occupation or for their right of self-determination. This does not reflect customary international law. The area of the war includes all the territories of the parties including territorial waters and the exclusive economic zone. A ceasefire is a temporary suspension of hostilities often agreed to by local commanders. An armistice is designed to prepare for permanently terminating the conflict. The conflict does not end until there is evidence that neither of the parties intends to resume hostilities A territory is under belligerent occupation when it is actually placed under the authority (effective control) of the hostile army.Examples of belligerent occupation include the 2003–2004 US-led occupation of Iraq following the fall of the Saddam Hussein regime and the situation in Crimea after the March 2014 annexation by Russia. Non-international armed conflict (NIAC) Common article 3 of the four Geneva Conventions contains a number of minimum guarantees that must be applied by all parties in ‘the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’ A non-international armed conflict must be distinguished from ‘acts of banditry or unorganized and short-lived insurrections’ that are generally considered to fall outside 26 Common article 3.30 Two conditions must be fulfilled before violence qualifies as non-international armed conflict. First, the level of violence must surpass a certain minimum threshold. -​ ICRC commentaries, ‘the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged on hostilities—conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country’. Secondly it requires that both parties to the non-international armed conflict must be militarily organized. -​ In practice, of course, the forces of a state party are always considered to be sufficiently organized and the requirement is thus only relevant for private actors. Although it is not required that a private actor must be organized in a manner similar to that of the armed forces of a state, the ICRC specifies that it must have a ‘military-like formation’ that includes ‘a certain level of organization and command structure’. Transnational armed conflict Hostilities between a state and a private actor in another state (Tænk usa mod ISIS) One option is for the classification of the armed conflict to depend on the existence of consent to the use of force by the state in whose territory the private actor is located. If consent from territorial state (syrien) -> non-international No consent means aimed against the territorial state -> therefore international armed conflict Anders Henriksen mener dog -> An alternative view—endorsed by the present author—holds that a transnational armed conflict is a non-international armed conflict as long as the foreign state only uses force against the non-state actor. If the acts of the private actor cannot be attributed to a state, the conflict (remains) non-international in character. This position was endorsed by the International Criminal Court (ICC) in the Lubanga case and by the US Supreme Court. 27 Changes to conflict status IAC -> NIAC An international armed conflict may be ‘internalized’ if a state ceases to exercise ‘overall control’ over a private actor involved in an armed conflict with a state or if the private actor in question succeeds in replacing the former government and subsequently gives its consent to the continued foreign intervention. -​ Fx. Afghanistan 2001 NIAC -> IAC First of all, a non-international armed conflict can be ‘internationalized’ and develop an international character if another state becomes so involved that it becomes a party to the conflict. This may occur in two instances. -​ First, when the foreign state introduces its own forces into the hostilities on the side of the non-state actor. -​ Secondly, case law from the ICTY indicates that ‘internationalization’ also occurs when the foreign state exercises ‘overall control’ over the militarily organized private actor. Battlefield status in international armed conflict Combatants Every official soldier who is trained to fight. (Nemt at vurderer - Amnon Lev) Always a legal target for an attack during conflict. For states not members of the first protocol, Lawful combatants are: -​ "Members of the armed forces of a state as well as members of militias or volunteer corps forming part of such forces" -​ Members of militias who are 1. commanded by a responsible commander; 2. have fixed signs recognizable at a distance; 3. carry arms openly; and 4. conduct their operations in accordance with the laws and customs of war. -​ Levee en masse ("mass levy"): spontaneously taking up arms without having time to form military units provided they carry arms openly and respect the laws and customs of war 28 The first protocol creates a lower standard for lawful combatants and require presentation of arms openly only during each military engagement or when being visible to the enemy and engaged in military deployment before launching an attack. This lower standard was criticized and does not reflect customary international law. Civilians Civilians should not be the object of attacks unless they take part in the fighting (and then they stop being civilians). Civilians lose their protection if they take a direct part in the hostilities, which happens if: (1) there is over a certain threshold of likely damage (2) there is a causal link between the act and the damage (3) the act is designed to cause the damage to one party in support of another. The basic principles of the conduct of hostilities In a 1996 advisory opinion on the legality of nuclear weapons, the ICJ referred to two ‘cardinal’ principles of international humanitarian law -​ The principle of distinction -​ The prohibition against causing unnecessary suffering to combatants -​ Mostly forbidden certain weapons e.g. if they cause superfluous injury or unnecessary suffering, including: chemical and biological weapons, fragments undetected by X-rays, incendiary weapons, blinding laser weapons, cluster munitions etc. Nukes aren’t forbidden Is also a principle according to Shai and Amnon -​ Proportionality 29 Non-international armed conflict In the light of the limited applicability of treaty law, it is therefore of paramount importance that there has been a gradual movement in the direction of greater application of customary international law in times of non-international armed conflict. Thus, as a rule of thumb at least, the limits imposed by customary international law on the conduct of international armed conflict are equally applicable to non-international armed conflict -​ First, although the conceptual distinction between ‘combatants’ and ‘civilians’ is also applicable to non-international armed conflict in the sense that some individuals will participate in the fighting -> Insurgents do not benefit from ‘combatants’ privilege’ and upon apprehension by government forces are liable to criminal prosecution before national courts for simply participating in hostilities. -​ A second significant difference relates to the temporal aspect of the concept of ‘direct participation in hostilities’. Thus, when members of a private actor ‘go beyond spontaneous, sporadic, or unorganized direct participation’ and become members as an organized armed group, they are deprived of protection from direct attack ‘as long as they remain members of that group’ The relationship between international humanitarian law and human rights law One of the ways in which the application of human rights law in times of armed conflict may have practical significance is in relation to the interpretation of terms and standards contained in the law of armed conflict. Thus, when interpreting a provision in the law of armed conflict, reference may often be made to the interpretation of similar provisions in human rights law. Application of human rights law in times of armed conflict -​ First, the application of human rights norms into the law of armed conflict must take account of the ‘specificities of the latter body of law’ -​ Secondly, in certain circumstances, the norms contained in human rights law and the law of armed conflict differ fundamentally 30 In non-international armed conflict, however, the relationship between human rights law and international humanitarian law is less clear when it comes to the protection of the right to life and the right to liberty. The problem is the limited treaty-based regulation of non-international armed conflict and the absence of any explicit authority for the use of deadly force and/or preventive detention of insurgents in both Common article 3 and APII. International criminal law sources of international criminal law Primary law: 1.​ 1945 London agreement (IMT) 2.​ 1998 statute of the ICC a.​ Reflects customary international law prosecution of international crimes before international courts The ICC -​ Art. 21 of the statute of the ICC lists the sources of law available to the court. -​ Can only exercise jurisdiction for crimes committed after the statute entered into force, unless the state has declared its acceptance of the courts exercise of jurisdiction in relation to a particular crime, cf. p. 312 -​ Can only exercise jurisdiction for crimes committed after the statute entered into force, unless the state has declared its acceptance of the courts exercise of jurisdiction in relation to a particular crime, cf. p. 312 A case is inadmissible if it is being investigated or prosecuted by a state that has jurisdiction over it “unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. The principle of complementarity - national criminal jurisdiction takes precedence over the jurisdiction of the ICC A prosecutor may initiate an investigation in three situations, cf. art. 13 of the statute 31  1. A state party may refer a situation to the prosecutor and request the latter to investigate, cf. art. 13 a 2. The un security council may rely on its powers under chapter VII of the UN Charter and refer a situation to the prosecutor, cf. art. 13 b 3. The OTP may initiate an investigation on his or her own initiative – proprio motu – provided it obtains authorization from a pre-trial chamber, cf. art. 13 c If a prosecutor has initiated an investigation on their own initiative the court may exercise its jurisdiction over conduct if: a) That has occurred on the territory of, or on board a vessel or aircraft registered in, a state that is a party to the statute or that has accepted the jurisdiction of the court with respect to the crime; or b) ​ When the accused individual is a national of a state party or a state that has accepted the jurisdiction of the court, cf. art. 12 (2) Art. 12 (3) specifies that a state that is not a party to the statute may declare that it accepts the exercise of jurisdiction by the court Crimes in international law: 1.​ Genocide -​ Definition on p. 316 (Article II of the 1948 Genocide Convention) -​ Needs genocidal intent and intention to destroy in whole or in part on of the groups listed in the definition as such, cf. p. 316. 2.​ Crimes against humanity -​ The physical element – acts of serious violence committed during a large scale or systematic attack against a civilian population (list on p. 317) -​ Mental element – the element required for the underlying offence (murder, torture, rape etc.) an awareness of the context of which the offence is part. -​ It may be committed for purely personal ends 3.​ Certain war crimes -​ Must constitute a breach of a rule protecting important values, cf. Tadic 32  -​ Serious violations of common article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife, cf. p. 318 4.​ Aggression -​ D) “as the planning, preparation, initiation or execution of an act of aggression which, by its character and scale, constitutes a manifest violation of the Charter of the United Nations. 5.​ (ecocide – if an act is committed with knowledge that there is a substantial likelihood of severe and either widespread or long term damage to the environment being caused by those acts. Consists of 2 elements The physical element (actus reus) – the conduct itself, for example the physical act The mental element (mens rea) – the guilty mind Criminal liability Art. 2 of the 1996 draft code of crimes against the peace and security of mankind u are liable if: a)​ Intentionally commits such a crime b)​ Orders the commission of the crime c)​ Under certain circumstances fails to prevent or repress the crime d)​ Knowingly aids, abets or otherwise assists in the commission of the crime e)​ Directly participates in the planning or conspiring to commit the crime f)​ Directly and publicly incites another individual to commit the crime which then in fact occurs g)​ Attempts to commit such a crime Joint criminal enterprise (JCE) a conviction for this requires 1.​ The existence of more than one individual involved in the commission of the crime 2.​ A common plan 3.​ That the accused made a significant contribution to the crime. 33 3 forms of this: 1.​ All accused individuals act under a common design possessing the same criminal intention 2.​ Concentration camp cases, applied to offences committed by members of military or administrative units, that can be considered to be acting according to a concerted plan 3.​ In a common design to pursue on course of conduct where on of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose. (controversial) a.​ Mainly used in relation to high-ranking political and military officials Responsibility for failure to act I.​ The existence of a superior – subordinate relationship -​ can be official or based on effective subordination II.​ The superior knew or had reason to know that the criminal act was about to be or had been committed and III.​ The superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. Yamashita - Famous case Defences: you can not be held responsible if: -​ The person was mentally incapacitated and did not know that what he or she was doing was wrong -​ Intoxication -​ self defence -​ the defence of others -​ the defence of certain property -​ duress (imminent threat of death or serious bodily harm against that person or another), cf. p. 321 34 art. 33 (1) an individual may be relieved of criminal responsibility if the individual was legally obliged to obey orders of the government or the superior in question if he or she did not know that the orders was unlawful and the order was not manifestly unlawful. Process guarantees The right to a fair trial, cf. art. 14 of the statute of the IMT Is modelled on art. 14 of the UN Covenant on civil and political rights and the rights contained therein -​ the right to protect yourself from self-incrimination -​ the presumption of innocence -​ the right to be informed of the charges and the opportunity to challenge them -​ the right to trial without delay -​ a public hearing -​ the right to be present at trial Immunities: No diplomatic immunity in international courts. If the state did not join the ICC there can be immunity. Read the text national prosecution of international crimes 35 36 37