Diploma Examination Public International Law Prof. Schmalenbach / SS 2012 Case I) State A and State B (both members of the UN) share a common border but their relation is tense. One day, three border guards of State A provoke the border guards of State B by using heavy weapons across the border, injuring one soldier of B. As a consequence State B launches a counter attack that leads to a bloody one-month armed conflict. In the end, State A is completely defeated. State B then insists that State A signs a peace treaty (a) to end all armed activities between A and B, and (b) to cede a certain part of A s territory to State B. Is this peace treaty in all its parts legally valid? (20 Points) 1. Art. 52 VCLT a) Has State B used force in violation of the UN Charter? The Prohibition of the Use of force (Art. 2 (4) UN Charter) Self Defense (Art. 51 UN Charter) b) Has the conclusion of the peace treaty been procured by the use of force? c) Interim Result 2. Legal Consequences: Invalidity of the treaty in all its parts? 3. Result Legal assessment of the case: Is the peace treaty in all its parts legally valid? The law of international treaties between States is outlined in the Vienna Convention of the Law of Treaties (VCLT). Most of the content of the VCLT is considered to be customary international law and because of this it does not matter if State A and State B have ratified the VCLT or not. This is especially true for Art. 52 VCLT which is of special interest in the given case.
1. Art. 52 VCLT Generally speaking a peace treaty, as any other treaty in international law, binds the signature states (pacta sunt servanda). Section 2 of the VCLT contains rules concerning the invalidity of treaties. According to Art 52 VCLT a treaty [is] void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. First there has to be a threat or use of force in violation of the UN Charter and second the conclusion of the treaty has to be in some kind of casual relationship ( procured ) with this use of force. Generally speaking a peace treaty imposed by an aggressor state on a victim of aggression has no legal force. In the case given, the questions arise if B has used force in violation of the UN Charter and (when the answer is yes) if the conclusion of the peace treaty has been procured by the use of this force. a) Has State B used force in violation of the UN Charter? The counter attack of State B could be a violation of the prohibition of the use of force (Art. 2 (4) UN Charter). It is well accepted that Art. 2 (4) is a universally recognized rule of customary law. The Prohibition of the Use of Force (Art. 2 (4) UN Charter) State B has violated the prohibition to use force when the legal requirements of Art 2 (4) UN Charter are met and when no legally recognized exception is applicable. Duty Bearer Art. 2 (4) UN Charter obliges all member states of the UN to refrain from the threat or use of force. State B is a member State of the UN and therefore has to refrain from the threat or use of force. Right Holder Art. 2 (4) UN Charter prohibits the threat or use of force against any state. State A is a UN member State and therefore has rights (and duties) according to the UN Charter. Threat or use of force The counter attack of State B qualifies as use of military armed force against State A.
International situation State B attacks State A which leads to a one-month armed conflict between those two States. The requirement of a cross-border use of force is met. Proscribed goals of the use of force Every use of military force is in conflict with the purposes of the UN if there is no justification in line with the UN Charter. State B s use of military force is in conflict with the purposes of the UN if there is no justification in line with the UN charter. Self Defense (Art. 51 UN-Charta) It has to be examined if the countermeasures taken by B are in conformity with Art. 51 UN Charter and therefore justified. Armed attack The central element of Art. 51 UN Charter is the armed attack a term that brings with it many problems and questions. Clear however is that an armed attack requires the use of military weapon force. The Nicaragua Case of 1986 is the central decision of the ICJ concerning the right of self defense. Here the ICJ refers to the definition of aggression by the UN General Assembly of 1974 which is legally not binding but may help to grasp the meaning of armed attack. In the Nicaragua Case however the ICJ does not qualify every violation of the prohibition of the use of force as an armed attack but only such violations that reach certain intensity. In the Oil Platforms Case of 2003 the ICJ has also referred to the Nicaragua Case and has repeated that only most grave forms of the use of force can qualify as an armed attack which is also the case when less grave attacks occur cumulatively. Considering all this the use of heavy weapons across the border by the border guards of State B, a single act of violence, can hardly qualify as a most grave form of the use of force. If one thinks A s attack qualifies as an armed attack, good reasons have to be found to support this claim (one could argue that the use of heavy weapons indicate such a most grave form of the use of force). Even if it is argued that the requirement of an armed attack is met, it still has to be shown that self defence was necessary and proportional.
Necessity and proportionality of self defence Art. 51 UN Charter s right of self defence is not limitless. The measures and the degree of force have to be necessary and have to be exercised in a proportional manner in regard to the armed attack at hand. The ICJ explicitly refers to this for example in the Congo Case of 2005. The requirement of necessity means, that the use of force must be the only available means of self defense and no other peaceful means would be effective. The principle of proportionality requires that the use of force in self defense must be proportionate to the force defended against. The self defense measures taken by B lead to a bloody one-month armed conflict and the complete defeat of B. In regard to the attack of State A and the threat it poses the measures taken by State B are extreme. They are of questionable necessity and not proportional. State B has violated the prohibition of the use of force when it launched a counter attack that lead to a bloody one-month armed conflict and resulted in the complete defeat of State A. The measures taken by State B are not in conformity with Art. 51 UN Charter as either the armed attack requirement is not met or the response is disproportionate. Therefore State B has used force in violation of the UN Charter b) Has the conclusion of the peace treaty been procured by the use of force? There has to be a causal link between force and the conclusion of the peace treaty. Art. 52 VCLT is intended at protecting the principle of free consent. It does not matter if the coerced State initially uses force for other objectives than the conclusion of a specific treaty as long as the State takes advantage of the pressure it has created. In the case given there is an enormous pressure on State A as it has been completely defeated and State B uses this advantage and insists on the conclusion of a peace treaty that requires State A to cede a part of its territory to State B. Therefore the peace treaty has been procured by the use of force. c) Interim Result As the requirements of Art. 52 VCLT are met the peace treaty is void. This result alone does not suffice to answer the initial question of the case. We have to look at the legal consequences outlined in Art. 52 VCLT.
2. Legal Consequences: Invalidity of the treaty in all its parts? Such an imposed treaty has no legal force (Art. 69 (1) VCLT). This affects the whole treaty not just parts of it (Art. 44 (5) VCLT). (Would the peace treaty only contain the obligation to end all armed activities between A and B it would not be void as this is generally seen as too extreme with regard to the necessity to end wars.) Although the peace treaty as a whole is void this does not affect the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject to under international law independently of the treaty. One such obligation is to refrain from using force in violation of the UN Charter. The nullity of the peace treaty therefore does not reinstate the state of war between the two states. One may now think of Art. 75 VCLT which says that the VCLT is without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the UN Charter with reference to that State s aggression. This article would allow a State to impose a peace treaty on another state in course of exercising its right of self defense. The counter attack of State B however was an unjustified violation of the prohibition of the use of force and therefore not in conformity with the UN Charter. 3. Result The peace treaty as a whole has no legal force. This does not affect other obligations the states A and B have like to refrain from using force in violation of the UN Charter. The nullity of the peace treaty therefore does not reinstate the state of war between the two states.
Case II) C, a citizen of State T, is kidnapped and severely beaten by a member of the secret police of State T during official interrogation in the state prison of T. Unfortunately this is a common practice in State T which has neither ratified the International Covenant on Civil and Political Rights (ICCPR) nor the Convention against Torture (CAT) or any other international human rights treaty. C seeks justice before domestic criminal courts of State U where the member of the secret police who carried out the beating is currently residing. The criminal code of State U contains a provision that allows the exercise of jurisdiction in accordance with international law. The arrested member of the secret police of State T claims jurisdictional immunity. Has the criminal court of State U jurisdiction in the given case? (20 Points) 1. Territorial Principle 2. Active and Passive Personality Principle 3. Protective Principle 4. Principle of Universal Jurisdiction 5. Is State U allowed to exercise jurisdiction in the given case? a) Ius Cogens b) Customary International Law c) Treaty Law 6. Result Legal assessment of the case: Has the criminal court of State U jurisdiction in the given case? State U s criminal code allows the exercise of jurisdiction in accordance with international law. According to international customary law a State can claim jurisdiction over an activity if there is a legitimate connection between the state and the event. International law knows several principles with different connecting factors.
1. Territorial Principle Ordinarily jurisdiction is based on the territorial principle under which a state has jurisdiction over activities within its territory or an activity that affects its territory (Lotus Case). As the kidnapping and the severe beating of C took place within the territory of State T, there is no connection between the activity and the territory of State U. Therefore State U cannot claim criminal jurisdiction under the territorial principle. 2. Active and Passive Personality Principle According to the active and passive personality principle a state can extend its jurisdiction over their nationals even when they are outside the states territory. Regarding criminal jurisdiction the active personality principle sees the nationality of the culprit as a connecting factor whereas the controversial passive personality principle ties the jurisdiction to the nationality of the victim. As neither the secret police member nor the victim C is a citizen of State U, the jurisdiction cannot be based upon the active or passive personality principle. 3. Protective Principle Under the protective principle a State can assert its jurisdiction over acts committed outside its territory that are prejudicial to its security or interfere with the operation of its government functions. Such acts are for example treason or espionage. (United States v. Zehe, 1985) As there is no indication that the kidnapping and severe beating of C threatens the security or governmental functions of Stat U the criminal jurisdiction of State U cannot be based upon the protective principle. 4. Principle of Universal Jursidiction As neither the territoriality principle nor the personality principle nor the protective principle can be applied, the criminal jurisdiction of State U can only be affirmed if the principle of universal jurisdiction can be applied. According to the principle of universal jurisdiction national courts may exercise jurisdiction under international law over certain serious crimes even when the connecting factors mentioned above are not given. The severe beating of C during the official interrogation is an act of torture (The definition of torture in Art. 1 CAT is considered to be customary international law). The prohibition of torture is part of customary international law and ius cogens. The UN Convention against Torture requires its parties to exercise universal jurisdiction over torture which can be found in Art. 5 (2) CAT. Universal jurisdiction over torture is nowadays considered to be part of customary international law (see
Furundžija Case of 1998, 140). Therefore it can be argued that all States can claim jurisdiction over torture according to the principle of universal jurisdiction. (One can as well be of the opinion that under customary law there is no universal jurisdiction over the crime of torture if good reasons are given.) 5. Is State U allowed to exercise jurisdiction in the given case? State U can claim universal jurisdiction in the given case but as the member of the secret police of State U claims jurisdictional immunity we have to ask if State T is allowed to exercise its jurisdiction in the given case. (The secret police member is currently residing in state U. Therefore universal jurisdiction in absentia does not have to be discussed.) As the ICJ has stated in the Arrest Warrant Case of 2000, [ ] jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. (Marginal no. 59) According to customary international law States have state immunity and therefore cannot be tried by foreign courts which are judicial organs of foreign states. This is based on the principle par in parem non habet imperium. But a state can only act through its organs like the member of the secret police in the given case. Does State immunity extend to State organs? Concerning State organs international law distinguishes between personal immunity (ratione personae) and functional immunity (ratione materiae). The ICJ affirms this in the Arrest Warrant Case (2000). Certain high officials, that are important for the functioning of the state (e.g. heads of state), have personal immunity. This immunity is absolute, individual and ends as soon as the official leaves office. Functional immunity on the other hand protects State organs only from prosecution for acts committed in the context of their official duties. This immunity is permanent but personal acts are not protected. The secret police member is no high official and does not have personal immunity but could have functional immunity. The member of State T s secret police tortured C during an official interrogation in state prison. This is a common practice in State T. The torture of C was therefore an act committed in the context of the secret police members official duties. Therefore the secret police member has functional immunity which protects him from State U s criminal jurisdiction. There could however be exceptions to this functional immunity according to ius cogens, customary law or treaty law.
a) Ius Cogens The prohibition of torture is considered to be ius cogens. Some claim that jus cogens norms possess a higher status than norms of customary international law and therefore derogate norms which are conflict with ius cogens (Art. 53 VCLT). In the given case, however, there is no normative conflict between the prohibition to commit and support act of torture and the procedural constraints imposed by jurisdictional immunity rules regarding the exercise of universal jurisdiction over foreign acts of torture. (One can as well be of the opinion that in the case of international crimes having ius cogens character no jurisdictional immunity exists, arguing with the overriding force of ius cogens) b) Customary International Law In the Pinochet Decision it was argued that international crimes like torture are excluded from functional immunity. But in the Arrest Warrant Case (2000) the ICJ confirmed the important role of the functional immunity. One can follow the argumentation of the Pinochet Decision and say that torture is excluded from functional immunity and indeed the practice of national courts are pointing this way. The ICJ on the other hand seems to be more restrictive and has yet to address this issue in ratio decidendi. c) Treaty Law The UN-Convention against Torture (CAT) knows an exception of functional immunity in regard to torture as Art. 5 CAT (universal jurisdiction) would be pointless if State organs could not be prosecuted by foreign courts (so called teleological interpretation of the CAT). But we do not know if State U has signed the CAT and we do know that State T has not. (Nevertheless the reasoning could be used to justify an exception to functional immunity according to customary law) 6. Result The criminal court of State U has jurisdiction (according to the principle of universal jurisdiction) but cannot exercise its jurisdiction in the given case because the arrested member of the secret police is protected by functional immunity. (One can as well come to the conclusion that the functional immunity does not include international crimes like torture (Pinochet Case). Therefore State U can exercise its criminal jurisdiction.)