Professor Tomuschat, one of the world’s leading international human rights lawyers, is emeritus professor of law at Humboldt University, Berlin. Before taking the chair of international law at Humboldt, he taught for 22 years at the Law Faculty of the University of Bonn where he directed the Institute of International Law. From 1977 to 1986, Professor Tomuschat was a member of the United Nations Human Rights Committee, the treaty body created by the International Covenant on Civil and Political Rights; from 1985 to 1996, he served on the International Law Commission (President in 1992). From 1990 to 1993, he was the United Nations special rapporteur on the human rights situation in Guatemala; from 1997 to 1999, he chaired the Truth Commission established by the Guatemalan Peace Accords, known as the Commission for Historical Clarification. His judicial experience includes serving as judge of the administrative tribunals of the Inter-American Development Bank and the African Development Bank. He has represented the Federal Government of Germany before European Court of Justice in Luxemburg and the European Court of Human Rights in Strasbourg and, currently, before the International Court of Justice in the Hague. Professor Tomuschat served as a member of the International Commission of Jurists (Geneva) from 1981 to 1996. He was the President of the German Society of International Law from 1993 to 1997. He was admitted to the Institut de Droit International in 1997.
He is the author of numerous books and articles. Among his recent publications are Human Rights – Between Idealism and Realism, Oxford 2003 (2nd ed. 2008) and The Statute of the International Court of Justice. A Commentary, Oxford 2006 (co-editor and author).
Professor Tomuschat will give three lectures during his visit to campus.
Germany v. Italy at the ICJ
Monday, February 7, 2011
3140 Eck Hall of Law
Prof. Tomuschat will discuss public aspects of this case in which he serves as one of the agents for Germany in proceedings against Italy before the International Court of Justice (ICJ) in the Hague. In recent years, Italian courts have ordered the German State to pay damages to victims of Nazi war crimes committed during Germany’s occupation of Italy between 1943 and 1945. Germany alleges that “[t]hrough its judicial practice . . . Italy has infringed and continues to infringe its obligations towards Germany under international law” and has “repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State.” This important case will allow the Court to clarify the complex issues surrounding when a State can be sued in the domestic courts of another country for official, governmental activities that violate human rights. This lecture co-sponsored by the Nanovic Institute for European Studies. See more information below.
Human Rights and the Gaza Conflict
Wednesday, February 9, 2011
3140 Eck Hall of Law
Prof. Tomuschat will discuss his service on a panel of independent experts tasked by the United Nations to “monitor and assess any domestic, legal or other proceedings undertaken by the Government of Israel and the Palestinian side” in light of the allegations in the report of the UN Independent Fact-Finding Mission into the Gaza conflict – also known as the Goldstone Report. That report alleged that both Israeli forces and Palestinian militants were guilty of serious human rights violations and breaches of humanitarian law during “Operation Cast Lead,” which took place from December 2008 to January 2009. See more information below.
What is “General International Law”?
Thursday, February 10, 2011
3140 Eck Hall of Law
Prof. Tomuschat will lecture on the concept of general international law. Given the multiplicity of subjects and the overlapping areas of activity covered by international law, Prof. Tomuschat will explore whether a common set of rules – collectively known as “general international law” — may be said to exist. See more information below.
Germany v. Italy before the International Court of Justice
Christian Tomuschat, Berlin
1) When Italy left the alliance with Nazi Germany in September 1943, a state of war arose between the two nations, which lasted until the final defeat of Germany on 8 May 1945.
2) During those 20 months, the German occupation forces committed many grave violations of international humanitarian law (IHL). Italian civilians were sent to Germany in great numbers to perform forced labour, mostly in the armaments industry. The most egregious violations were massacres perpetrated against the civilian population as a response to attacks of resistance fighters against German military units.
3) There is no doubt that those breaches of IHL engaged Germany’s international responsibility.
4) In July/August 1945 the leading statesmen of the Victorious Allied Powers convened in Potsdam close to Berlin to deliberate on the sanctions to be imposed on Germany for all the damage caused by the wars of aggression it had unleashed as from September 1939. The Potsdam Agreement stated that Germany should be compelled to “compensate to the greatest possible extent for the loss and suffering that she has caused to the United Nations and for which the German people cannot escape responsibility”. In particular, the Potsdam Agreement specified that Germany should be amputated of a big part of its territory in the east of the country. This determination came to its formal close through the Treaty on the Final Settlement with Respect to Germany of September 1990 through which Germany recognized the borders drawn by the Allied Powers 45 years earlier (loss of 111,000 sqkm).
5) In its Peace Treaty with the Allied Powers of 1947, Italy, as a former ally of Nazi Germany, had to renounce “on its own behalf and on behalf of Italian nationals all claims against Germany and German nationals outstanding on May 8, 1945 … This waiver shall be deemed to include … all claims for loss or damage arising during the war” (Article 77(4)).
6) Notwithstanding this waiver, Germany established a compensation scheme for persons who had become the target of racial discrimination and persecution. Additionally, in 1961 the Federal Republic of Germany concluded two treaties with Italy, providing considerable amounts of financial compensation. In waiver clauses contained in these agreements, the Italian Government declared that “all outstanding claims on the part of the Italian Republic or Italian natural or juridical persons against the Federal Republic of Germany … to be settled to the extent that they are based on rights and circumstances which arose during the period from1 September 1939 to 8 May 1945.”
7) The meaning and scope of these clauses has become controversial since the late nineties of the last century when individual applicants started legal actions against Germany, requesting compensation for harm suffered as a consequence of measures taken by the German armed forces. The case of a Mr. Ferrini, deported to Germany in August 1944 to Germany and compelled to work in the armaments industry, was finally adjudicated by the Italian Corte di Cassazione, which held that because of the gravity of the breach of IHL perpetrated to the detriment of the claimant, Germany could not invoke jurisdictional immunity (judgment of 11 March 2004, 128 ILR 659).
8) This case had a stimulating effect. Many other persons having suffered injury instituted also proceedings against Germany. In very few cases only was the defence of sovereign immunity accepted. Currently, several hundred proceedings are pending before Italian courts.
9) The Italian Government, through the Procuratura dello Stato, consistently advised the courts seized with such cases that sovereign immunity should not be ignored. But the Corte di cassazione continued on its Ferrini course.
10) Seeing no other way out, the German Government decided to bring an action against Italy before the ICJ, relying on the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which provides for the settlement of any legal disputes between States parties by the ICJ. Article 27 (a) of this Convention stipulates that it shall not apply to “disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute” (April 1961).
11) Obviously, the claim that Italy has infringed Germany’s sovereign immunity through the Ferrini jurisprudence is covered by the jurisdictional clause whereas the occurrences of World War II lie outside its scope.
12) The rule of jurisdictional immunity of States for acts jure imperii, i.e. truly sovereign acts, is firmly anchored in customary international law, as recently reflected also in the UN Convention on Jurisdictional Immunities of States and Their Property (2004).
13) Jurisdictional immunity is restricted by a limited number of exceptions. The crucial question is whether the exception invoked by the Italian Corte di cassazione is generally recognized as a valid proposition under positive international law.
14) The violations of IHL committed by German troops are attributable to Germany as a State. They cannot be considered as private acts of the wrong-doing military officers.
15) In a famous proceeding before U.S. courts (Princz v. Germany), judge Wald of the Court of appeals (District of Columbia) held in a dissenting opinion that the commission of egregious violations amounted to an implicit waiver of immunity. This interpretation contradicts the true will of the wrongdoer.
16) The territorial clause which can be found in the FSIA (Section 1605(a)(5)) as well as in the UN Convention (Article 12) is not applicable. It is essentially confined to insurable risks (e.g., traffic accidents). Although it has also been used outside this narrow field (Letelier v. Chile), it has never been seriously suggested that the settlement of war damages should be effected through individual compensation claims. Many national statutes specify explicitly that immunity shall be maintained for damage caused by foreign military activities.
17) The U.S. Antiterrorism and Effective Death Penalty Act of 1996 cannot be relied upon as a precedent. The U.S. acted unilaterally and has found no followers elsewhere in the world. Additionally, it should be noted that the Act is drafted in very careful terms. The jurisdiction of U.S. courts is not an automatic consequence of the commission of an act of terrorism.
18) Essentially, but without referring to it explicitly, the Corte di cassazione relies on the concept of jus cogens. However, jus cogens pertains to the realm of primary rules, of rules of conduct. In the dispute of Germany v. Italy, the issue is what specific and extraordinary legal consequences, if any, follow from a breach of such rules.
19) The ILC Articles on Responsibility of States for internationally wrongful acts (2001) provide for some derogations from the ordinary regime in case of “serious breaches of obligations under peremptory norms of general international law”. But they do not deny an alleged wrongdoer the right to determine how its international disputes should be settled.
20) According to the jurisprudence of the ICJ, the requirement of consent for establishing its jurisdiction cannot be dispensed with even in case of breaches of fundamental rules of the international legal order (jus cogens) like the prohibitions of genocide or aggression. It is hard to see that a different answer should be given in respect of jurisdiction of domestic courts of a victim State. In any event, to date no practice susceptible of leading to the formation of a new rule of customary law has emerged.
A Follow-Up to the Goldstone Report
1) On 3 April 2009. a Fact-Finding Mission on the Gaza Conflict was established by the President of the UN Human Rights Council (HRC) with the mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009”.
2) This Mission, headed by Justice Richard Goldstone, former judge of the Constitutional Court of South Africa and former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, comprised three other members: Professor Christine Chinkin (UK), Hina Jilani, practicing lawyer (Pakistan), and Desmond Travers, a former military officer (Ireland).
3) The Mission submitted its final report to the Human Rights Council on 15 September 2009. It concluded that both sides had committed grave violations of the applicable rules of international humanitarian law (IHL) and international human rights law (IHRL). According to its judgment, there was “little potential” for accountability through domestic institutions in Israel and even less in Gaza (para. 1964).
4) Some of the conclusion and recommendations were extremely harsh.
a) The Mission found that the so-called operation “Cast Lead” “was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependence and vulnerability” (para. 1893).
b) It recommended that eventually the Security Council should refer the situation in Gaza to the Prosecutor of the International Criminal Court (para. 1969) and that additionally, on the basis of universal jurisdiction, investigations should be initiated by individual States with the aim of arresting alleged perpetrators and prosecuting them in accordance with internationally recognized standards (para. 1975).
5) Given the rejection of the Report by Israel, the General Assembly, by Resolution 64/254 of 26 February 2010, called upon both sides to conduct investigations that are independent, credible and in conformity with international standards into the serious violations reported by the Mission, towards ensuring accountability and justice. This Resolution led the Human Rights Council to establish a Committee of Experts (CoE) mandated to look into these investigations (Resolution 13/9, 24 March 2010). In June 2010, the High Commissioner for Human Rights appointed three persons to take the three seats: Mary McGowan Davis, a former American judge of the Supreme Court of the State of New York, Param Cumaraswamy, a Malaysian national, practicing lawyer and former Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, as well as the author of these lines.
6) It should be emphasized that it was not the task of the CoE to rewrite or review the Goldstone Report. Its only duty was to verify whether both sides had taken note of that Report, initiating the appropriate measures of prosecutorial investigation as required under the rule of law.
7) The fact-finding activities of the CoE relied on five different potential sources:
a) Information from the parties. Israel sent three reports to the UN Secretary-General, but it did not cooperate with the CoE. Consequently, the members of the CoE were unable to travel to Israel and to the West Bank territory. They could not meet with the Israeli authorities tasked with conducting the relevant investigations.
b) The Palestinian authorities both in the West Bank and in Gaza were prepared to provide information. The CoE could visit the Gaza strip, which it reached via Egypt.
c) Representatives of NGOs – from Israel as well as from the Palestinian side – could be met both in Geneva and in Amman (Jordan). The materials provided by them proved to be extremely enlightening and helpful.
d) In Gaza, the CoE had the opportunity to contact victims of the armed hostilities. Many people still live in a situation of traumatic choc.
e) Lastly, the CoE heard a number of experts in military justice in order to get familiarized with the specific difficulties to be overcome when investigating alleged war crimes.
8) As a preliminary step, the CoE had to ascertain in what manner investigations into alleged war crimes are to be conducted pursuant to the applicable law. It held that the armed conflict deserves to be classified as an international armed conflict, notwithstanding the lack of a truly inter-State confrontation. Accordingly, the key provision is Art. 146 of Geneva Convention IV pursuant to which persons alleged to have committed “grave breaches” shall be prosecuted. Unfortunately, the text does not give any further details. By comparing Art. 146 with the more recent provisions in human rights treaties (e.g., Art. 12 of the UN Convention against Torture), one can easily reach the conclusion that investigations require indeed to be conducted in conformity with the specifications laid down in the relevant resolutions of the GA and the HRC. According to the jurisprudence of the ICJ, IHRL remains in principle applicable during armed conflict in addition to IHL, without prejudice to the logic of warfare where killing a combatant enemy is a lawful act.
9) Because of the denial of co-operation on the part of Israel, the work of the CoE was seriously hampered. However, the CoE had to accept that investigations into war crimes are particularly complex and time-consuming. Likewise, it had to accept that such investigations commence, at a first stage, with investigations by the competent military authorities. Despite the fact that a considerable amount of time had elapsed since the end of the Gaza War, it felt unable to conclude that Israel had not acted with the requisite speed.
10) However, it found that the Palestinian victims and witnesses were not adequately included in the relevant investigations. In particular, the victims were (almost) never informed about the outcome of proceedings in which they had been factually involved. Remedies formally open to them were mostly ineffective in practice. It also concluded that there was an institutional defect in the system since the Military Advocate-General, who has to decide on whether a criminal investigation should be opened, had beforehand advised the Israeli Government on the legal aspects of the military operation in Gaza.
11) In a positive sense, the CoE noted that apparently Israel had modified some of its military strategies, drawing some lessons from the findings of the Goldstone Report. Thus, the rules on the use of phosphorous in densely populated areas were strengthened. Likewise, the IDF modified its rules on the destruction of private property adjacent to military targets proper. On the other hand, the CoE noted that Israel had not reviewed its position as to the suitability of any Hamas-controlled areas or buildings as military targets (on this basis, the Parliamentary Building in Gaza had been destroyed).
12) On the official Palestinian side, a great deal of openness could be encountered. A Commission of Inquiry established by the Ramallah Authorities acknowledged very frankly that during the relevant period members of Hamas had been killed by official security forces. But the CoE was unable to find out whether this report had been followed by any actual measures of implementation.
13) Two reports by the de facto Palestinian authorities in Gaza were less than satisfactory. They heavily criticized Israel, reiterating the charges contained in the Goldstone Report, but did not admit that on their part unlawful activities in violation of IHRL and IHL had been conducted.
14) In conclusion, the CoE held that both sides should be kept under scrutiny.
15) When the report was presented in the HRC on 27 September 2010, only the Jewish organization “UN Watch” attacked the CoE.
What is “General International Law“?
Christian Tomuschat, Berlin
1) Notwithstanding many challenges, international law continues to exist in our time as the body of rules which the international community relies upon in regulating the relationships between its members.
2) Although specific rules are controversial as to their existence, scope and legitimacy, not a single State calls into question the system of international law as such. All newly emerging States were admitted to the international community, after their decolonization, as subjects of the international legal order endowed with all the rights inherent in that order but also obligated to comply with all the duties flowing therefrom. This process is not dissimilar from the obligation of new members of the European Community to accept the voluminous “acquis communautaire”.
3) In recent times, in particular scholars from Third World countries have voiced dissatisfaction with the rules in force, arguing that a great deal of their substance had in the past been shaped in the interest of the industrialized nations of the West. Pursuant to the doctrine of “Third World Approaches to International Law” (“TWAIL”), a profound overhaul of the entire system, in particular of the conventional regimes, would be required. The governments of the South have not embraced such radical requests for change. Instead, for many decades already, they have actively – and successfully – pursued in the relevant international fora strategies for the adjustment of international law to their specific interests and needs.
4) Article 38 of the Statute of the International Court of Justice (ICJ) lists the legal sources which the Court is called upon to apply. Treaties take the top position, customary law occupies the second place, and general principles of law are mentioned as the third class of legal rules. Article 38, although having many lacunae (in particular, secondary law of international organizations is not mentioned), is considered not only as a provision governing proceedings before the ICJ, but as a comprehensive codification enunciating the most important sources of international law for all intents and purposes.
5) “General international law” is a term which does not appear in Article 38 of the ICJ Statute. Nonetheless, one encounters a certain tendency in legal writings but also in some judicial pronouncements to depart from the strict categorization of Article 38, referring instead to the comfortable language of “general international law”.
6) It is not easy to understand what “general international law” can possibly mean. In criminal law, for instance, the general rules ensure the cohesion of the legal regime. However, ratione materiae, international law has long since lost its unity which it kept until the first half of the last century when domestic law and international law were neatly separated on account of the matters regulated by them.
With its wide variety of topics, international law is today very close to domestic law. According to a fashionable trend, its fragmentation has been decried. And yet, there may be particular features which can be discerned in all fields of international law. Additionally, the term “general international law” should be reserved for rules that are binding, ratione personae, on all of the major subjects of international law, namely States.
7) It stands to reason that some interpretations from the last century cannot be upheld any longer. Thus, Oppenheim and Lauterpacht were of the view that many treaties concluded by “leading Powers” contained ipso facto “general international law” since the other nations would follow their example. Under the auspices of sovereign equality of States, recognizing such a privileged hegemonic position to purely factual advantages of mighty nations would amount to a denial of the basic premises. And yet, there is an essential need to conceive of international law as an integrated whole.
8) International treaties do not easily qualify as good candidates for “general international law” since treaties are instruments of self-commitment. They create rights and duties only for those States that have specifically adhered to them. Even “world order treaties”, treaties in whose existence and fulfilment the international community has a tremendous interest, have rarely been adhered to by all the States of this globe. Thus, a significant minority of States has shunned the Nuclear Non-Proliferation Treaty of 1968. Only very few treaties have reached universal or quasi-universal applicability ratione personae, in particular the UN Charter and the four Geneva Conventions on humanitarian law of 1949.
9) Customary law, which comes into existence if a practice is both extensive and virtually uniform and if additionally it is supported by a sense of legal obligation, may seem to constitute the ideal embodiment of “general international law”. However, it focuses on past conduct of States and thus cannot be future-oriented. Born as a category during the 19th century, when contacts between States were few and could be empirically observed, customary law has also run into a deep crisis in a time when it has become outright impossible to observe and register the huge quantities of transactions that take place under the auspices of international law among 192 States and the “new” subjects of international law, in particular individual human beings.
10) Rules of jus cogens, mostly deemed to be founded on custom, impose themselves on every member of the international community. They cannot be derogated from. Thus, they certainly belong to the hard core of what properly may be called “general international law”.
11) General principles of law recognized by civilized nations, often decried as the expression of European arrogance, also seem well-suited to deserve the designation as “general international law”. It would appear to be obvious that within a group of nations united under an overarching structure the common features of their legal foundations should be included in the general legal framework of orientation.
12) In sum, however, the classification scheme of Article 38 of the ICJ Statute cannot really do justice to the need felt in the international community that international law must have firm and solid foundations providing it with a coherent structure. Some authors already see an ongoing process of “constitutionalization” of international law.
13) Hence, a new approach would appear to be necessary which proceeds from the basic axiom that international law forms a systemic unity.
14) According to this approach, a first group of rules is constituted by the axiomatic premises of the entire edifice of international law. First and foremost, one finds here the principle of sovereign equality of States, a principle which was not brought into existence by the UN Charter and which did not grow haphazardly through a process of contingent steps, with its attendant consequences: non-use of force, non-intervention. Today, this principle is complemented and to some extent even superseded by the constitutional elements of the international community as they are laid down in particular in the UN Charter.
15) A second class of “general international law” comprises systemic features that derive almost automatically from the premises. One finds here in particular the law of treaties as well as the law of international responsibility. If a society is composed of sovereign and equal entities, the treaty is the appropriate instrument for the settlement of any open issues. Also, to the extent that international law is conceived of as a set of binding rules, its infringement must be followed by determinate sanctions.
16) A third component of international law is the rules that give it a specific moral quality. In contradistinction to “classic” international law, international law today is no longer a tool box suited to serve for the furtherance of any objectives, irrespective of their substantive content.
17) Modern legal reasoning leaves the procrustean bed of Article 38 of the ICJ Statute. Accordingly, State consent loses increasingly its dominant influence over the shaping of international law. This carries with it definite dangers. International law must never lose its contact with hard realities.