James5

I recently read this article by William Worster on the immunity of peacekeepers operating without a Status of Forces Agreement – it’s an interesting read, especially the discussion of the general law on the immunity of foreign forces in host States.

Relying on the US case of the Schooner Exchange, Worster writes that when a host State allows a foreign aircraft or ship to enter its territory, immunities can be implied to be granted, due to the host State consenting to the presence of the foreign forces.

What surprised me was that this was also extended to situations where a host State is forced to allow entry of a foreign ship or aircraft (e.g. because it is in a state of emergency) – not an entirely hypothetical situation if you remember the 2001 incident of the US Navy plane that made an emergency landing in China.

A strong tension arises in that scenario, because the foreign State has no choice but to enter the host, given that their vessel is in a state of emergency; and the host State has no choice but to allow entry, as in the case of the US Navy plane it virtually crash-landed. Thus, no consent has been issued to either grant immunity or to enter on terms excluding immunity.

Worster resolves this tension in favour of the foreign State, “where consent to the immunity regime cannot be accepted freely, yet consent to the presence of the foreign organ must be granted, we can conclude that the host State is precluded from denying the usually applicable rules of State immunity.”

This seems to me to be slightly at odds to the general principles underlying immunity and State sovereignty, which emphasise that grants of immunity must be traced back to the consent of the host State, whether that consent is implied or explicit. I don’t quite see why the foreign State can’t be precluded from denying any claim to immunity due to their entry – especially as the “usually applicable rules of State immunity” would indicate that grants of immunity are entirely discretionary.

Perhaps Worster’s view is a more pragmatic interpretation of the law – States probably don’t want to have to be at risk of searches and detention when their vessels are in a state of emergency. And if immunities are all about encouraging comity between nations and easing the interaction between States, then certainly forcing immunity could be understandable.

I also think that this may be another instance where the theory of international law, that immunity is only granted with the consent and at the exceptional discretion of the host State, doesn’t quite reflect the reality of its practice, where immunity for foreign forces can be so easily implied that it virtually is the status quo.

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When it comes to international criminal law jurisprudence, there hasn’t really been an easy starting point for legal research. Each of the Tribunals have their own websites where they list decisions, but these are often difficult to search and the links themselves can also be unreliable.

For my own use, I created an ICL search engine that used Google to search all of the different Tribunals at once – but this would only be effective while the sites kept their current structure.

Thankfully, the ICC this week re-launched their Legal Tools website, providing a new and better place to do ICL research.

Legal Tools is a comprehensive resource of international criminal case law, and relevant international and domestic material. It contains judgments from all the major international Tribunals, going back to Nuremberg and Tokyo; relevant international legal instruments and decisions; and relevant legislation and cases from domestic jurisdictions. Also, it doesn’t require registration, you just agree with the terms and conditions and you have full access to either search or browse the database.

Of course it isn’t perfect. At times it feels a bit clunky, it certainly isn’t at a Google-level of sophistication. The results are often limited by the format of the source database – which can sometimes mean non-text PDFs. And some sources can’t be clicked through to due to copyrights issues.

But it does look like it will be a fantastic resource. The advanced search particularly looks to be a very powerful tool for specific searches of international criminal law. It’d be nice if the results were more friendly to Google, so that you could run a typical Google search over the database – but hopefully that’s something for the future, this could be a great addition to Google Scholar.

Transparency and accessibility of the law is crucial to the legitimacy and efficiency of the Tribunals. Access is currently at an barely usable level, and things definitely could be better. The ICC Legal Tools is a significant step in the right direction and it’ll be interesting to see where things go from here. We’ve seen increasing demands for domestic transparency in governments, let’s hope this also is reflected on the international level soon.

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There’s a great interview between Mark Goldberg and Kevin Heller up at Bloggingheads.tv, especially recommended is their debate over the ICC.

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Slacktivist has a great post on the ludicrous views espoused and believed by some Christians in the USA. Their obsession with the all-powerful UN would be almost laughable if they weren’t so influential in stymying the development of international law. I particularly find it amusing how they like encouraging some ‘end times signs’ (eg. encouraging war in the Middle East) but then try the best to ‘limit the powers’ of the UN over the US. If they really thought one world government was a precursor to the end, and the UN was the route to that government, surely they’d be the biggest proponents of regional co-operation, merging of currencies etc?

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Kevin Heller has an extremely interesting post on his first meeting with Radovan Karadzic in the UN Detention Unit in the Hague. It’s a fascinating insight into the world of international criminal law.

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