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A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…

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Filed under: Armed Conflict, EJIL Analysis, Self-Determination, State Responsibility, Syria, Use of Force
 

Political Motivation and Piracy: What History Doesn’t Teach Us About Law

Published on June 17, 2013        Author: 

I’ve been meaning to write for some time on the debate caused earlier this year by the ninth circuit of the US Federal Court decision in Institute of Cetacean Research v Sea Shepherd. Somewhat controversially it held that political protesters, if they crossed the line into violent protest, could commit piracy. The point is controversial because piracy is defined under the Geneva Convention on the high seas and the UN Convention on Law of the Sea (UNCLOS) as being an act of violence committed on the high seas by a private vessel against another vessel “for private ends”, a requirement often taken to exclude “political ends”.

The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.

To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. Read the rest of this entry…

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Filed under: EJIL Analysis, Piracy
 

Announcement: Positions at the Graduate Institute of International and Development Studies

Published on June 16, 2013        Author: 

The Graduate Institute of International and Development Studies invites applications for the following positions:

- Professor/Associate Professor in International Law

- Assistant Professor in International Law (with a specialisation in Environmental Law).

For the first position, candidates must have a strong grounding in general international law and a specialisation in international organisations law such as United Nations law. In both positions, the capacity to work with colleagues from other disciplines is an asset. Further information is available here

 

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Filed under: EJIL Analysis
 

Call for Papers: Cassese Initiative Prize

Published on June 15, 2013        Author: 

200px-Antonio_Cassese_(born_1937)_-_Flickr_image_3943365916_by_Margaret_ZimmermanThe Antonio Cassese Initiative is very grateful to have received an una tantum donation from the ‘Stichting Praemium Erasmianum’.

This foundation aims to strengthen the position of the humanities, the social sciences and the arts. Every year the foundation awards the Erasmus Prize, intended for persons or institutions that have made an exceptional contribution to culture in Europe. In 2009, Antonio Cassese received the Erasmus Prize for his significant contribution to the development of a universal system of law and for motivating a great number of student and collaborators in his function as judge, scholar, teacher and critic. Therefore, to continue his legacy, the Initiative has decided to use the donation to motivate students and young professionals to take part in the development of international law by writing a paper on new perspectives in international criminal law.

Oxford University Press has kindly accepted to contribute to the Prize with a donation in books.

For more information about the Prize and the call for papers, please click here.

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Filed under: EJIL Reports
 

Danish Judge Blasts ICTY President [UPDATED]

Published on June 13, 2013        Author: 

A Danish news website has just published a leaked letter from the Danish judge sitting on the ICTY, Frederik Harhoff, blasting the ICTY President, US judge Theodor Meron. The letter seems to have been an email sent to a number of recipients, and it’s not clear to me whether it was originally written in English (PDF) or Danish (PDF) (my guess is Danish due to some of the language used, which doesn’t really work in English) or how exactly it was leaked. Judge Harhoff severely criticizes the ICTY Appeals Chamber for the controversial acquittals in the Gotovina and Perisic cases, claiming that Judge Meron exerted enormous pressure on his colleagues in order to obtain the acquittals, and that he did the same with regard to the Trial Chamber judges in the Stanisic and Simatovic case. Harhoff claims that Meron did so in order to protect the military establishments of powerful states, specifically the US and Israel, from expansive forms of criminal liability previously developed by the ICTY.

Choice quotes from the news story below. Needless to say, this is one of the worst scandals to engulf the ICTY in its history, regardless of whether Harhoff’s accusations have a basis in fact or not.

Harhoff is a judge on the International Criminal Tribunal for the former Yugoslavia. His criticism amounts to a severe and dramatic accusation against the tribunal as a whole. He maintains that the American president of the tribunal has exercised ‘persistent’ and ‘intense’ pressure on his fellow judges to allow top-ranking officers to go free.

Harhoff’s five-page letter, the precise contents of which are confidential, was addressed to 56 people, including several lawyers. In the letter,Harhoff scrutinises and criticises a series of judgements acquitting Serbian and Croatian leaders.

“The most recent of these judgements have occasioned a deep professional and moral dilemma for me, one that I have never before experienced. The worst of it is the suspicion that some of my colleagues have been exposed to short-term political pressure and this completely changes the premises of my work to serve the principles of justice and reason”, Harhoff writes in the letter. He makes it clear that the development “has awoken deep concerns both in myself and other colleagues in the corridors of this tribunal”.

…

“It would seem”, writes Judge Harhoff, “that the military establishment” in leading states such as Israel and the US “felt that the tribunal was getting too close to top-ranking military commands.”

He continues:

“Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?” Harhoff writes in the letter.

…

Judge Harhoff states in his letter that the public “will probably never” be told to what extent his suspicion that the American President of the tribunal has influenced the result of the case for political reasons is true:

“But the report of the American president of the tribunal’s persistent pressure on his colleagues in the Gotovina and Perisic cases does more than suggest that he was fairly intent on arriving at an acquittal and especially that he was lucky in being able to persuade the ageing Turkish judge to change his mind at the last minute.”

The “ageing Turkish judge”, Harhoff refers to is the 77-year-old Mehmet Güney, who voted in November to release the two Croatian generals Gotovina and Markac.

Harhoff says that the new precedent “will in future and in the majority of cases allow the top-ranking person to go free. This means that American (and Israeli) commanders in chief can breathe a sigh of relief…”. Harhoff adds “I am left with the distinctly unpleasant impression that the tribunal has shifted course as a result of the pressure from ‘the military establishment’ of certain powerful countries.”

UPDATE: Marlise Simons has an article in the New York Times on the Harhoff letter, in which she also reports on comments by unnamed ICTY senior officials, which to an extent corroborate Harhoff’s allegations:

A spokesman at the court declined to comment on the letter. Other judges and lawyers were willing to speak, provided that their names were not used.

By their accounts, a mini-rebellion has been brewing against Judge Meron, prompting some of the 18 judges of the International Criminal Tribunal for the Former Yugoslavia to group around an alternative candidate for the scheduled election for tribunal president this fall. Until now, Judge Meron had been expected to be re-elected.

“I’d say about half the judges are feeling very uncomfortable and prefer to turn to a different candidate,” said a senior court official. The official said he did not believe that American officials had pressured Judge Meron to rule a certain way in any case, “But I believe he wants to cooperate with his government,” the official said. “He’s putting on a lot of pressure and imposing internal deadlines that do not exist.”

…

Today, as the tribunal winds down it work, pressure over time is among the complaints heard from judges’ chambers. Several senior court officials, while declining to discuss individual cases, said judges had been perturbed by unacceptable pressures from Judge Meron to deliver judgments before they were ready.

After the only session to deliberate the acquittal that Judge Meron had drafted in the case of the two Croatian generals, one official said, the judge abruptly declined a request by two dissenting judges for further debate.

In his letter, Judge Harhoff also said that Judge Michele Picard of France was recently rushed unduly and given only four days to write her dissent against the majority decision to acquit two Serbian police chiefs, Jovica Stanisic and Frank Simatovic.

“She was very taken aback by the acquittal and deeply upset about the fast way it had to be handled,” said an official close to the case.

 

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Filed under: EJIL Analysis, International Criminal Tribunal for the Former Yugoslavia
 

The Court of Arbitration Issues Partial Award in Indus Waters Kishenganga Arbitration

Published on June 12, 2013        Author: 

Jawad AhmadJawad Ahmad is an attorney admitted in New York and is currently based in Singapore. From January to March 2012, Mr Ahmad worked as an intern at the International Bureau of the Permanent Court of Arbitration where he assisted Legal Counsel on legal research assignments concerning the Indus Waters Kishenganga Arbitration, but did not directly work with the Court of Arbitration. This post is derived from the Author’s forthcoming article in Arbitrational International – “Indus Waters Kishenganga Arbitration and State-to-State Disputes” Arbitration International Issue 3 2013.

On 18 February 2013, the Court of Arbitration (Court) rendered the Partial Award in the Indus Waters Kishenganga Arbitration between Pakistan and India. The Permanent Court of Arbitration in The Hague acted as Secretariat for the Court. The Court is expected to render the Final Award towards the end of 2013.

The case was brought under the Indus Water Treaty 1960 (Treaty) and it is the first time an arbitration has been initiated under the Treaty. The Treaty sought to divide the use of the Indus River System between Pakistan and India. With the involvement of the World Bank, the two countries were able to draw up the Treaty with specified rights and obligations. The Treaty allocated the Eastern Rivers exclusively to India and the Western Rivers to Pakistan. Each country has rights to develop its respected rivers for development purposes, such as hydro-electric power. The Treaty permitted India to use the Western Rivers for the purposes of generating hydro-electric power under an agreed framework. The current dispute involves India’s permissible use of the Western Rivers under the Treaty.

Water is an important economic asset for both India and Pakistan. Not only does it account for a large part of each country’s agricultural use, but also hydro-electric power. Investment in the Indus Basin Irrigation System is in the billions of dollars and it has contributed to 21 per cent of Pakistan’s GDP in 2009-10 (see Shahid Ahmad, ‘Water Insecurity: A Threat for Pakistan and India,’ Atlantic Council). India, with an enormous population, needs to expand its energy sources and is currently investing billions in developing dams along the Indus River system (see The Economist, Unquenchable thirst: A growing rivalry between India, Pakistan and China over the region’s great rivers may be threatening South Asia’s peace). The stakes in this arbitration is, therefore, very high for both countries.

Read the rest of this entry…

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Filed under: EJIL Analysis, Inter-State Arbitration, Natural Resources, Territorial Disputes
 

EJIL Vol. 24: No 2 Published

Published on June 12, 2013        Author: 

The latest issue of the European Journal of International Law (Vol. 24, No. 2) was published this week. As usual, the table of contents of the new issue is available at EJIL’s own website where readers can access those articles that are freely available without subscription. One of the articles that is freely available on that website is by my Oxford colleague – Martins Paparinskis: “Investment Treaty Arbitration and the (New) Law of State Responsibility” (see here for abstract). We plan to have a discussion about that article on the blog soon.

Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Let me also remind readers that, apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Filed under: EJIL Analysis
 

Germany and Botswana ratify the Kampala Amendments on the Crime of Aggression: 7 ratifications, 23 more ratifications to go!

Published on June 10, 2013        Author: 

meagan_wongMeagan Wong, PhD Candidate, Leiden University. She is currently a Visiting Scholar at the Lauterpacht Centre for International Law, University of Cambridge. She was accredited as an advisor to the Liechtenstein delegation at the most recent Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov 2012).

Last month Dapo posted on this blog about where States Parties to the Statute of the International Criminal Court stand in the process of ratifying the Kampala Amendments on the Crime of Aggression. This is a follow-up to his post noting some recent developments with regard to the Kampala Amendments. Last week – on the 3 June 2013 – Germany’s Foreign Minister Guido Westerwelle deposited Germany’s instrument of ratification of the Kampala Amendments with the United Nations, thus making Germany the sixth ICC State Party to ratify the Amendments on the Crime of Aggression and the Amendments on War Crimes adopted in Kampala in 2010. One day later, Botswana ratified the Kampala Amendments see here. The significance of the ratification by these two States Parties is that Germany not only represents the first NATO member to ratify but was the first State whose leaders were convicted of crimes against peace. Botswana is the first African state to ratify. On 8 May 2013, Liechtenstein became the first country for which the amendments have entered into force, as Liechtenstein ratified the amendments a year previously (8 May 2012). Other countries that have ratified are: Samoa (25th September 2012) here; Trinidad & Tobago (13th November 2012) here; Luxembourg 15th January 2013 here ; and Estonia (27th March 2013) here.

As Article 15 bis (3) of the Kampala Amendments stipulates that at least 30 ratifications are needed by 2017 to activate the ICC’s jurisdiction over the crime of aggression, 23 more ratifications are needed. The Global Campaign for the Ratification and Implementation of the Kampala Amendments (“the Global Campaign”), initiated by the Permanent Mission to the UN in New York, in conjunction with the Global Institute for the Prevention of the Crime of Aggression, is leading efforts to ensure that the jurisdiction of the ICC over aggression is brought into effect as soon as possible.

One of the many marvels of the Kampala Amendments is that it demonstrates how small states can play an influential and significant role in shaping international law. It is widely acknowledged that the crime of aggression amendments would not have been adopted without the leadership of Liechtenstein. The ambassador of Liechtenstein to the United Nations (NY), H.E. Christian Wenaweser, was the President of the 2010 Review Conference and had steered the negotiation process ever since 2003, assisted by his legal advisor and Deputy Stefan Barriga. Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Court, Use of Force
 

Human Rights: Member State, EU and ECHR Levels of Protection

Published on June 7, 2013        Author: 

Article 53 of the Charter of Fundamental Rights of the European Union caused, already at its inception, a hermeneutical conundrum:

Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.

Article 51, which defines the Charter’s field of application, provides:

 The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?

Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.

Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ. Read the rest of this entry…

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Filed under: Editorials, EJIL, European Convention on Human Rights, European Union, Human Rights
 

P.S. Catalonia

Published on June 6, 2013        Author: 

My Editorial on Catalan independence certainly put the cat among the pigeons – or perhaps more accurately, the pigeon (or dove) among the cats.  Reactions were ferocious and some unpleasantly ad hominem, even by some authors who should know better. I read with care all reactions, including those removed by our Blogmasters for violating the decorum and sobriety which are a hallmark of EJIL: Talk! Most underscored, with different levels of vehemence, the longevity and authenticity of Catalan nationalism – something that was not called into doubt – and a variety of historical grievances.  None, in my view, came even close to meeting my basic point, which was that to insist on independence as a solution to resolving the grievances and vindicating Catalan national identity, was a defeat of the very spirit and ethos which gave birth to that noble experiment which is the European Union. I repeat: Independence? Bon Voyage. But not in the EU.

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Filed under: Editorials, EJIL, Self-Determination, States and Statehood
 
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