27 February, 2012

Judge Baltasar Garzón - Judicial Independence in Spain looks questionable

Baltasar Garzon
Recent events in Spain have raised serious questions about the independence of their judiciary and, in particular, of their investigating judges.  Baltasar Garzón served as one of six investigating judges for Spain's National Court (Audiencia Nacional).  He came to international attention when, in 1998, he issued an arrest warrant for General Pinochet - (Pinochet: Arrest).

In 2006, Judge Garzón took preliminary

20 February, 2012

International Court of Justice: Germany v Italy (Greece Intervening)

On 3rd February 2012, the International Court of Justice (ICJ) gave final judgment in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening).   (There are also some separate opinions).  Essentially, the case was concerned with the principle of State Immunity in international law and in this post I seek to bring together a number of resources available via the internet which will, hopefully, explain the decision and its implications.

The ICJ held that:

Italy had violated its obligation to respect the immunity which Germany enjoys under international law by:

1.   allowing civil claims to be brought against it based on violations of international humanitarian law committed by the German Reich between 1943 and 1945 - (12 votes to 3);

2.   taking measures of constraint against Villa Vigoni (German State property in Italy) - (14 votes to 1);

3.   declaring enforceable in Italy decisions of Greek courts based on violations of international humanitarian law committed in Greece by the German Reich - (14 votes to 1);

It was further held that Italy must, by enacting appropriate legislation, or by resorting to other methods of its choosing, ensure that the decisions of Italian courts (and other judicial authorities) which infringe the immunity of Germany shall cease to have effect - (14 votes to 1).

Finally, all other submissions made by Germany were unanimously rejected.

In a separate but concurring judgment, Judge Keith pointed out that Germany accepted that dreadful violations of international law occurred in the 1940s but that was not the issue before the court which was only concerned with Germany’s claim to immunity from the jurisdiction of Italian courts over the proceedings based on those events.

The separate opinions include dissents by Judges Cancado Trindade, Yusuf and Judge ad hoc Gaja.   Judge Yusuf said that the court had a unique opportunity to clarify international law by establishing a "a limited and workable exception to jurisdictional immunity in those circumstances where the victims have no other means of redress."  He ended his judgment by saying: 

"The assertion of jurisdiction by domestic courts in those exceptional circumstances where there is a failure to make reparations, and where the responsible State has admitted to the commission of serious violations of humanitarian law, without providing a contextual remedy for the victims, does not, in my view, upset the harmonious relations between States, but contributes to a better observance of international human rights and humanitarian law."

Judge Cancado Trindade's dissent was unequivocal - "... my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment."

Background - Events in Greece in World War 2:

During World War 2, there were

14 February, 2012

Piracy - A major problem in modern times

The extent of the problem:

Piracy is an extremely serious problem to shipping.   The International Maritime Bureau (IMB) has published figures for piracy and armed robbery incidents reported to the IMB in 2012.  Up to the end of January, 37 attacks worldwide were reported - read  Piracy News and Figures   Further IMB material shows that attacks are getting bolder (IMB 14th July 2011 - an article with some truly frightening information).   Nevertheless, the IMB indicated that although world piracy had a hit a new high, more ships were escaping from Somali pirates - see IMB 18th October 2011  This article stated:

"Demanding millions of dollars in ransom for captured ships and their crews, Somali pirates are intensifying operations not just off their own coastline, but further afield in the Red Sea – particularly during the monsoon season in the wider Indian Ocean. With unprecedented boldness, this August pirates also boarded and hijacked a chemical tanker at anchor in an Omani port, under the protection of coast state security.
But although Somali pirates are initiating more attacks – 199 this year, up from 126 for the first nine months of 2010 – they are managing to hijack fewer vessels. Only 24 vessels were hijacked this year compared with 35 for the same period in 2010. Hijackings were successful in just 12% of all attempts this year, down from 28% in 2011."

The IMB reported a doubling of piracy across the world in the first half of 2009 - see Maritime Terrorism Research Center 16th July 2009  and an interactive map for 2010 is also available.   See further the Piracy and Armed Robbery interactive maps for 2011 and 2012.

Legal definitions:

Detainee Inquiry under Sir Peter Gibson scrapped

The government announced the discontinuance of the Detainee Inquiry under the Chairmanship of Sir Peter Gibson - see BBC 19th January 2012.   See also Parliament - Statement on the Detainee Inquiry.

On 18th January, Sir Peter Gibson said:

"The Secretary of State for Justice (the Rt Hon Kenneth Clarke QC MP) today announced that, in view of the further immediate Metropolitan Police investigations announced last week into the allegations concerning renditions of two individuals to Libya and their alleged ill-treatment, the Government has decided to conclude the work of the Detainee Inquiry. He has also announced that he has asked for a report to be presented to the Prime Minister summarising the preliminary work done to date by the Inquiry and any issues which it has been able to identify as likely to form the subject of further investigation.

The Inquiry regrets