Tuesday, August 30, 2011

Athletes and whereabouts

Whereabouts are information provided by a limited number of top elite athletes about their location to the International Sport Federation or National Anti-Doping Organization that included them in their respective registered testing pool as part of these top elite athletes'anti-doping responsibilities.

What does that mean? Anti-Doping Organizations are required to have out-of-competition testing on top elite athletes. These tests can be conducted anytime, anywhere and without notice to the athletes.

According to the World Anti-Doping Agency (WADA) they are the most effective means of deterrence and detection of doping. The WADA is not responsible for deciding who should be part of the registered testing pools. Whereabouts rules are part of the International Standard for Testing (IST).

Violation of applicable requirements regarding athlete availability for out-of-competition testing, including failure to provide required whereabouts information and missed tests constitutes a violation of an anti-doping rule (doping offence) against articles 2.4 WADA Code 2009 and 2(3)(d) UNESCO Convention.

Any combination of 3 missed tests and/or failure to provide accurate whereabouts information
within an 18-months period now leads to the opening of a disciplinary proceeding by the Anti-Doping Organization with jurisdiction over the athlete. Sanctions range between 1 and 2 years depending on the circumstances of the case.

The Danish cyclist Rasmussen had to leave the Tour de France 2007 after he failed to report his whereabouts to the UCI in a timely fashion over several occasions. Dramatically enough he was in the yellow jersey when the Danish federation went public with the news that he had missed doping controls and dropped him from the national team.

Footballfederations FIFA and UEFA say there are "fundamental differences" between individual athletes and players or teams. FIFA and UEFA "do not accept that controls be undertaken during the short holiday period of players, in order to respect their private life."

International Association of Athletics Federations (IAAF) supports the whereabouts rule: "There's no point in having any whereabouts or testing system at all if it does not actually help the testing authorities locate the athletes who may be cheating.""If you are going to do it at all, you should do it properly". In fact, IAAF advocates even a more strict schedule of testing.

The question remains whether out-of-competition testing violates the right of privacy of an athlete legitimately.


Books and articles in the Peace Palace Library catalogue

External links:

Q & A WADA on Whereabouts InformationWADA Code 2009

UNESCO International Convention Against Doping in Sport (October 19, 2005)

WADA Athletes Whereabouts Information Guideline [November 22, 2005] (World Anti Doping Program)

News articles:

IAAF opninion on "new" whereabouts requirements (March 5, 2009)

FIFA and UEFA reject WADA 'whereabouts' stance (March 24, 2009)

Rasmussen admits lies, claims Rabobank knew his whereabouts (November 9, 2007)

WADA drug rule rejected in Sportsnet.ca (March 24, 2009)

Whereabouts newsitems in Belgisch Sportmagazine

Another blog: Sport and Drugs Procon.org

Friday, August 19, 2011

Dutch responsibility for Srebrenica

Today, the Court of Appeals in The Hague published the English translation of the judgment in the cases of Mustafic and Nuhanovic versus the State of the Netherlands. The original judgments (in Dutch) of both Mustafic and Nuhanovic were published on 5 July 2011: they are almost identical.

Mustafic and Nuhanovic, two Bosnian Muslims, held the Netherlands responsible for cooperating with the evacuation of some of their relatives from the enclave Srebrenica after it had fallen into the hands of the Bosnian Serbs on 12 July 1995. All evacuated relatives were subsequently killed by Bosnian Serbs, together with thousands of other Bosnian Muslims.

Mustafic and Nuhanovic both appealed the ruling made against them by the District Court in The Hague on 10 September 2008. The Dutch District Court concluded, that the Netherlands could not be held responsible for the death of the relatives of Mustafic and Nuhanovic, since the acts of the Dutch peacekeepers in Srebrenica had to be attributed to the United Nations, and not to the Netherlands (see paras. 4.7-4.15 of Nuhanovic (District Court)).

The Dutch Court argued that, in general, the acts of peacekeeping forces should be attributed to the UN (paras. 4.8-4.11). This was based on an assessment of the international law on attribution. In view of the Dutch District Court, there were essentially two opposing views on attribution: the International Law Commission believed that the question of attribution and responsibility ultimately depended on who had “effective control,” whilst the European Court of Human Rights believed it depended on “ultimate and overall control.” The Dutch District Court chose to stay closer to the latter approach when it suggested that only if “the State cut across the United Nations command structure” of the United Nations would there be “scope for attribution to the State.” This would have been the case if Dutchbat soldiers were explicitly obligated by the Dutch State to ignore UN orders, or if they clearly acted under the command of the Netherlands as opposed to the UN (paras. 4.14.1). The District Court did not believe that the Dutch State cut across the United Nations command structure in this particular case (paras. 4.14.1-4.14.5), and thus the Netherlands could not be held responsible for any wrongful act committed by Dutchbat in Srebrenica (paras. 4.3, 4.5 and 4.15). See also the last few pages of this article about Srebrenica.

The Appeals Court did not follow the District Court’s approach on the matter of attribution. Instead of applying the European “overall command and control” criterion, the Appeals Court chose to apply the ILC’s “effective control” approach. In view of the Appeals Court, “in international law literature, as also in the work of the ILC, the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed, depends on the question which of both parties has 'effective control' over the relevant conduct” (para. 5.8, Nuhanovic (Appeal)).

In para. 5.9, the “[Appeals] Court adopt[ed] as a starting point that the possibility that more than one party has 'effective control' is generally accepted [and that] for this reason the Court will only examine if the State exercised 'effective control' over the alleged conduct and will not answer the question whether the UN also had 'effective control'.” The Appeal’s Court thus believed that both the UN and the Netherlands could be responsible for the same acts at the same time. By accepting the possibility of dual attribution in this way, the Appeals Court once again distanced itself from the District Court. It further avoided having to say something about the UN’s responsibility, which is convenient since the UN enjoys immunity from the jurisdiction of the Dutch courts.

After rejecting the District Court's interpretation of the law on attribution, the Appeals Court now had to apply its own criterion of attribution to the facts. In the end, it concluded that “it [was] beyond doubt that the Dutch Government was closely involved in the evacuation [from the enclave Srebrenica] and the preparations thereof” and that “the facts [did] not leave room for any other conclusion than that, in case the Dutch Government would have given the instruction to Dutchbat not to allow Nuhanovic […] to leave the compound or to take him along respectively, such an instruction would have been executed” (5.18).

In conclusion, the Court held that “the State possessed 'effective control' over the alleged conduct of Dutchbat that is the subject of Nuhanovic's claim and that this conduct can be attributed to the State” (5.20). An important consideration in reaching this conclusion was the fact that, at the relevant time, Srebrenica had already fallen into the hands of the Bosnian Serbs, and that the UN peacekeeping mission was not in operation anymore. Considering the circumstances, Dutchbat could have decided not to surrender the family members of Nuhanovic to the Bosnian Serbs. The UN did not oblige Dutchbat to do otherwise, and Dutchbat's cooperation in the evacuation of Nuhanovic' family members from the compound had to be attributed to the Netherlands. This does not mean the UN bears no responsiblity at all, but that is something the Court cannot rule upon, since the UN is immune from domestic court proceedings.


To know more, please consult the extensive collection of the Peace Palace Library, especially the publications on Srebrenica, the war in the former Yugoslavia, genocide, fair administration of justice, and State responsiblity.

Wednesday, August 10, 2011


The United Nations International Law Fellowship Programme (ILFP) organized a 45 minutes presentation of the Audiovisual Library of International Law (AVL) for the participants of their six-week course in the Peace Palace. Representatives of The Hague Academy of International Law, the Dutch Carnegie Foundation and members of the Peace Palace Library Staff also were in the audience. The ancient reading room of the Peace Palace Library provided a perfect setting for this journey into international law. It is appropriate to say a few words about this “Audiovisual Library”.

In 1965 The General Assembly established the United Nations Programme of Assistance in the teaching, study, dissemination and wider appreciation of international law. A better knowledge and understanding of international law might contribute to international peace, justice, security and the rule of law. The Codification Division of the Office of Legal Affairs of the UN is responsible for the implementation of the Programme. The International Law Fellowship Programme (ILFP) and the AVL are among the activities of the programme.

The AVL was established (2008) as an innovative instrument for the promotion of the knowledge of international law. It also reflects the historic as well as modern development of international law within the United Nations and its importance for the contribution to a better and safer world.

The three components of the AVL , Historic Archives, Lecture Series and Research Library, are essential for the education of international lawyers, for deepening the knowledge of legal practitioners and specialists, and to provide an immense multidimensional source of information for researches in the field of international law. The availability of historic audiovisual material, excellent treatises of topics by leading experts, combined with the collection of the library section is quite unique. The AVL is freely accessible on the Internet.

After three years the success is evident. Innumerable people from all over the globe accessed the AVL, stressing the importance of the knowledge of international law for society.

In 1913 Andrew Carnegie donated one million dollar to build the Peace Palace with the explicit condition that it should have a library. He wanted a “temple of peace”, where lawyers could study international law, would come to a better understanding of the world and so would contribute to a peaceful society. The Peace Palace Library is now one of the largest international law libraries in the world, focusing, just as AVL, on building a multidimensional collection of paper and digital elements, accessible on the internet. The PPL Research Guides are new tools to facilitate research in specific fields of international law offering search possibilities through the PPL catalogue and the Internet.

The United Nations Audiovisual Library of International law and the Peace Palace Library share the same idea “to further peace through international law”

Thursday, August 4, 2011

United Nations Security Council Statement on Syria

Yesterday, August 3, The United Nations Security Council (UNSC) issued a presidential statement in which it for the first time condemned the mass human rights abuses and use of force by the Syrian government against its population. The statement called for an end to the violence by all parties involved.

Syria has been troubled by deadly civil unrest for several months now. Various sources claim that since the beginning of the anti-government protests in mid-March more than 1600 civilians have been killed by security forces. More than 2000 people have disappeared and many of those arrested have been beaten and tortured. More than 10.000 of the protesters are still in detention.

Although the UNSC statement - a step short of a more weighty SC resolution - that was agreed after weeks of protracted negotiations didn't mention the UN investigation into human rights violations that a number of European states on the Council had asked for at an earlier stage, the Security Council said that those responsible for the violence should be held accountable.

After the UNSC delivered its statement, Secretary-General Ban Ki-moon said that the statement sent a “clear message from the international community” to the Syrian authorities to stop their “brutally shocking” actions. He added that “[a]ll killings should be investigated fully, independently and transparently. Those responsible should be held to account.” He further urged the Syrian government to comply with the SC's demand to grant unimpeded access to international humanitarian organizations.

Here follows the full text of the UNSC Statement

“Presidential Statement

The full text of the presidential statement contained in document S/PRST/2011/16 reads as follows:

The Security Council expresses its grave concern at the deteriorating situation in Syria, and expresses profound regret at the death of many hundreds of people.

The Security Council condemns the widespread violations of human rights and the use of force against civilians by the Syrian authorities.

The Security Council calls for an immediate end to all violence and urges all sides to act with utmost restraint, and to refrain from reprisals, including attacks against state institutions.

The Security Council calls on the Syrian authorities to fully respect human rights and to comply with their obligations under applicable international law. Those responsible for the violence should be held accountable.

The Security Council notes the announced commitments by the Syrian authorities to reform, and regrets the lack of progress in implementation, and calls upon the Syrian Government to implement its commitments.

The Security Council reaffirms its strong commitment to the sovereignty, independence, and territorial integrity of Syria.

It stresses that the only solution to the current crisis in Syria is through an inclusive and Syrian-led political process, with the aim of effectively addressing the legitimate aspirations and concerns of the population which will allow the full exercise of fundamental freedoms for its entire population, including that of expression and peaceful assembly.

The Security Council calls on the Syrian authorities to alleviate the humanitarian situation in crisis areas by ceasing the use of force against affected towns, to allow expeditious and unhindered access for international humanitarian agencies and workers, and co-operate fully with the Office of the High Commissioner for Human Rights.

The Security Council requests the Secretary-General to update the Security Council on the situation in Syria within seven days.”