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Announcements: Conferences at Oxford and Cambridge; Position at Durham.

Published on March 31, 2013        Author: 

1) BB_LogoThe 2013 Annual Conference of the British Branch of International Law Association takes OxfordImageplace in Oxford on April 12 & 13. The theme is “The Changing Face of Global Governance: International Institutions and the International Legal Order“. Registration for the conference is through the conference website. The Keynote Lecture and the Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, UN Under-Secretary General for Legal Affairs. Accommodation  at Pembroke College Oxford can be booked here with code “ILA2013″.

2) Durham University seeks to make an appointment in Climate Change Law and Governance. Details of the post are available here. This appointment is part of a major investment in climate change at Durham, represented by the imminent founding of the Climate Impact Research Centre (CIRC), bringing together experts across multiple disciplines. The holder of this post will primarily be based in Durham Law School.

3) Abstract submissions are sought for a conference on Interpretation and International Law, to be held at the University of Cambridge on August 27 2013, with the support of the Faculty of Law and the Lauterpacht Centre for International Law. The relevance of interpretation to the academic study and professional practice of international law is inescapable. Yet interpretation in international law has not traditionally been examined as a distinct field. Given that international law is constituted, in practical terms, by acts of interpretation, there is a need for greater methodological awareness of interpretive theory and practice in international law.

Proposed panels include: interpretation and legal doctrine; interpretation and the sources of international law; interpretation and the interpreters; interpretation and the international legal order; interpretation and cultural contingency; and interpretation and indeterminacy.

Keynote presentations include: Judge Sir David Baragwanath (President, Special Tribunal for Lebanon); Professor Andrea Bianchi (The Graduate Institute, Geneva) and Ingo Venzke (University of Amsterdam).

Abstract submissions must be between 300-500 words in length and should be accompanied by a short resume. Please submit applications to cambridgeinterpretation {at} gmail(.)com by 1 May 2013. Please address all other enquiries to Daniel Peat (dcp31 {at} cam.ac(.)uk) or Matthew Windsor (mrw48 {at} cam.ac(.)uk). Successful applicants will be notified by late May 2013.

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Former ICC Defendant – Ngudjolo – Applies for Asylum in the Netherlands

Published on March 28, 2013        Author: 
Mathias Holvoet is PhD-Researcher in International Criminal Law at the Vrije Universiteit Brussel, Belgium. He is also a member of the Research Group on Fundamental Rights and Constitutionalism (FRC). Dersim Yabasun is a PhD-Researcher in the International and European Law Department, Maastricht University, The Netherlands.

Mathieu NgudjoloOn 18 December 2012, Mathieu Ngudjolo Chui (Ngudjolo) – a Congolese militia leader – became the first to be acquitted before the ICC, after Trial Chamber II judged that he could not be found guilty beyond a reasonable doubt of charges of war crimes and crimes against humanity committed in the village of Bogoro in 2003. Ngudjolo was released on 21 December 2012. Subsequently, according to Ngudjolo, the Dutch government decided to repatriate him back to the Democratic Republic of Congo (DRC). Since Ngudjolo feared persecution in the DRC because of his incriminating testimony against the Kabila government during his trial, he decided to apply for asylum in the Netherlands to prevent his expulsion. Furthermore, Ngudjolo requested the ICC to require the Netherlands to hand him over to the Court, with whom he would negotiate a place to live pending his asylum examination and during the appeal proceedings. In addition, Ngudjolo requested the Court to order the Victims and Witnesses Unit (VWU) to provide for his protection. The Appeals Chamber will decide on these requests later this year.

The Dutch authorities have approached this whole new development of ‘ICC-asylum seekers’ with serious concern.

There is a reasonable chance that Ngudjolo will be excluded from refugee protection by the Dutch Immigration and Naturalization Service (IND) on the basis of Article 1(f)(a) of the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention), as was the case with two defense witnesses in the Katanga & Ngudjolo cases who applied for asylum in the Netherlands in 2012. However, if there is a risk that Ngudjolo would be subjected to torture or degrading treatment if he were to be expelled to the DRC, Article 3 of the European Convention on Human Rights (ECHR), which protects any person and has an ‘absolute’ character, might prevent his expulsion to the DRC. In that case, Ngdudjolo may find himself in a ‘legal vacuum’. He would be ordered to leave Dutch territory, but at the same time the Dutch authorities are not allowed to expel him to the DRC because of its obligations under European human rights law. This piece will discuss the chances of returning Ngudjolo on the basis of diplomatic assurances and the option of relocation for future acquitted defendants to third countries.

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Isaiah’s Echo: Progress, Prophecy, and the UN Charter

Published on March 27, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

The phrase “swords into plowshares” has been adopted by countless organizations campaigning for peace and is also frequently associated with the UN’s mission and international law more broadly. The full quote comes from the book of the Prophet Isaiah:

“He shall judge between the nations, and shall arbitrate for many peoples; they shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”

By a wonderful co-incidence this is chapter 2 verse 4 (2:4) of Isaiah and corresponds very closely to the prohibition on the use of force in Article 2(4) of the UN Charter (UNC):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

With the similarity in the numbering (the original Dumbarton Oaks draft called this “Chapter” 2 giving an even closer resemblance) it is tempting to think that the connection between the UNC and Isaiah was there from the UN’s inception. Swords into Plowshares statueThere is also a statue in the UN garden named “Let Us Beat Our Swords into Plowshares”.  Wikipedia even finds it necessary to inform us that, contrary to popular belief, these words from Isaiah are not in fact inscribed on the UN building’s foundation stone. Those words are actually engraved on a wall across the road.

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Welcome to the Blogosphere – SIDI Blog

Published on March 26, 2013        Author: 

Earlier this week, the Italian Society of International Law just launced its blog - SIDIBlog. The inaugural post by Annalisa Ciampi provides an Italian perspective on the Italy-India controversy on the shooting of two Indian fishermen [Tip: post is in Italian but non-Italian speakers can cut and paste into Google Translate]. Yesterday, EJIL:Talk! provided a commentary on that incident by Hari Sankar, an Indian academicSIDIBlog intends to be a space for discussion and debate of current issues of International Law (Public and Private) and European Union Law. The editors (Giacomo Biagioni, Giorgio Buono, Francesco Costamagna, Pasquale De Sena, Daniele Gallo, Irini Papanicolopulu, Cesare Pitea, Andrea Spagnolo) invite contributions, which may be written in Italian, English and French (and which should not exceed 1500 words). Posts may be sent to the following e-mail address: sidiblog2013 {at} gmail(.)com

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Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

 

In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Read the rest of this entry…

 

Announcements: The London International Boundary Conference 2013

Published on March 15, 2013        Author: 

The inaugural London International Boundary Conference will take place on 18 and 19 April 2013 at the Royal Geographical Society, London.    Speakers at the Conference are among the world’s leading experts and practitioners in the effective resolution of territorial disputes. They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints. The Conference will be hosted by Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office. The Conference will also run a half-day technical workshop at King’s College London on the afternoon of 17 April 2013, offering a practical introduction to maritime limits and boundaries. For further details (including speakers, pricing and registration), please visit the conference website.

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Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

Published on March 13, 2013        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London.

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier report in January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context. Read the rest of this entry…

 

The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic

Published on March 11, 2013        Author: 

On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals.  With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison.  The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.

Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.

The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic  was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.

The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.

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IntLawGrrls Back Online

Published on March 11, 2013        Author: 

The IntLawGrrls blog is now back online, with a slightly different editorial structure and a new website (www.ilg2.org).  IntLawGrrls new editors (Cecilia Bailliet, Andrew Ewart, Sital Kalantry, Elizabeth Ludwin King, Jaya Ramji-Nogales, and Milena Sterio) invite everyone to check it out.

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