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Prolonged Occupation and Article 6(3) of the Fourth Geneva Convention: Why the International Court Got It Wrong Substantively and Procedurally

Published on June 16, 2015        Author: 

I recently gave a paper on prolonged occupation at a UN Roundtable on Legal Aspects of the Question of Palestine.  In the law of armed conflict, the notion of “prolonged occupation” is absent from the governing international instruments.  It has been little discussed in commentaries, and Adam Roberts cautions that attempting to define the notion of prolonged occupations “is likely to be a pointless quest” (see 84 AJIL 44 (1990) 47)), but Israel’s High Court has employed it in a number of decisions.

The UN meeting in the Hague was perhaps a timely meeting given the outcome of the recent Israeli elections which brought into office a government which includes some ministers who are opposed to the existence of any Palestinian State and others who are opening calling for the annexation of the West Bank.  Despite the urging of President Obama, the guidelines for the new coalition government contain no commitment towards a Palestinian State.  The conclusion of the Oslo Accords and subsequently the Roadmap for Peace masked the reality of Israel’s occupation of Palestine with the figleaf of a negotiated process between ostensible equals which, under the Roadmap, was meant to have led to a comprehensive settlement of the Israel-Palestine conflict ten years ago.  As the outlook of the current Israeli government appears adverse to negotiation, this should put the fact of occupation back on the table.

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Announcements: Revista Latinoamericana de Derecho Internacional; Conference on European & Int’l Business Law & Practice (Trier); Conference on Int’l Custom (Hull); Registration for the ESIL Annual Conference (Oslo)

Published on June 13, 2015        Author: 

1.  New Issue: Revista Latinoamericana de Derecho Internacional. New Issue: Latin American Journal of International Law. Di Tella University, from Argentina, is delighted to announce that the second issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal, published in Spanish, is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. In its first two numbers, the Journal has published works by authors such as Martti Koskenniemi, Christine Gray, David Luban and Susan Marks, as well as interviews to prominent international lawyers such as former ICC Prosecutor Luis Moreno Ocampo. The latest issue can be found here.

2.  ERA Conference, International Law and European Law: Harmony and Dissonance in International and European Business Law Practice. Trier, 24-25 September 2015. The aim of this conference is to provide legal practitioners with a comprehensive overview and high-level discussions on key topics and recent developments affecting their daily practice at the crossroads of international law and EU law. More details here.

3.  Conference: Making International Custom More Tangible. 2 -3 July 2015, Law School, University of Hull. The McCoubrey Centre for International Law is hosting its second conference for research scholars and early career scholars, addressing questions surrounding customary international law. More details available here.

4.  Registration is now open for the 11th Annual Conference of the European Society of International Law to be held at the University of Oslo on 10 – 12 September 2015. The conference theme is The Judicialization of International Law – A Mixed Blessing? Conference highlights include a Keynote Panel on A Turn to the Rule of Law in International Politics: The Role of the International Judiciary with James Crawford and Martti Koskenniemi; agorae focusing on current events: International Law and the Fight against ISIS, The Accession of the European Union to the European Convention on Human Rights, The Situation in Ukraine; A closing lecture on Developments in Geopolitics – The End(s) of Judicialization? by Philippe Sands; A reception at Astrup Fearnley, museum of contemporary art, and a conference dinner at the Hotel Continental in the city center of Oslo. The draft programme of the conference and details of how to register for the event are available on the conference website. There are still various possibilities for sponsoring the event. For information about sponsorship possibilities please contact the organizing committee at esil-2015 {at} jus.uio(.)no.

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The Emerging Reparations Case-Law of the ICC Appeals Chamber in Comparative Perspective

Published on June 12, 2015        Author: 

Reparations for victims of international crimes or serious human rights violations have received increasing attention from international courts. The most recent example is the Judgment on the Appeals against the “Decision establishing the principles and procedures to be applied to reparations” rendered by the Appeals Chamber (AC) of the International Criminal Court (ICC) in Lubanga on 3 March 2015. (See this previous post.) The present contribution compares how three key reparations issues are addressed by the ICC Appeals Chamber and by two other courts: the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Inter-American Court of Human Rights (IACtHR). Besides the ICC, the ECCC is the only international or hybrid criminal court where victims can claim reparations. The IACtHR’s reparations case-law has been seminal for decades, and references to its case-law by the ICC and ECCC reflect an ongoing dialogue. The three issues on which the courts are compared are: who can claim reparations, who is obliged to pay reparations, and what reparations can victims obtain

Who can claim and benefit from reparations?

Under rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), victims are “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Only victims who suffered harm as a result of the crimes for which the accused was convicted are eligible to claim reparations against him/her (AC Judgment, para. 8). At the ECCC, rule 23bis(1) is the equivalent rule 85(a) defining victims. However, unlike the ICC, the ECCC rules and case-law require a direct causal link between the victim’s harm and the crimes for which the accused was convicted (rule 23bis(1); Case 002/01, Trial Chamber Judgment, para. 1114).

Given the absence of a direct causal link requirement before the ICC, the AC should have considered sexual and gender-based violence as harm resulting from the crimes for which Lubanga was convicted (AC Judgment, paras. 196-198). During his trial, there was robust evidence of sexual exploitation of minors by armed forces or groups. The UN Special Representative for Children and Armed Conflict considered such sexual exploitation as providing essential support to the armed groups and, thus, as active participation in hostilities (Lubanga, Trial Judgment, para. 630). Accordingly, this sexual exploitation was arguably linked to the child soldiers-related crimes for which Lubanga was convicted. The AC should therefore have upheld the Trial Chamber’s finding of reparable harm from sexual and gender violence (paras. 207-209). Read the rest of this entry…

 

Lethal Automated Robotic Systems and Automation Bias

Published on June 11, 2015        Author: 

Lethal Autonomous Robotic Systems (LARS) are machines that are capable of initiating a lethal attack on individuals or other targets. Based on its programming, a LARS can determine whether an individual is a valid target and whether engaging that target is a proportional action, and act upon its own assessment. Such sophisticated systems have long been in the realm of science fiction, but today they are not only a possibility, but a reality. For example, Samsung has developed the SGR-A1, which is currently deployed in the Korean demilitarised zone. Although, for now, that device leaves the final decision to engage to a human.

The debate on the use of such systems is heating up (see for instance the various reports by Human Rights Watch, the Oxford Martin Policy Paper, or discussions on the topic in relation to the CCW). These systems have been criticised from moral, political and legal perspectives. Leaving aside the moral and political objections, the development of a LARS is extremely problematic from the perspective of international humanitarian law. In particular, questions have been raised about the ability of such systems to make distinctions between civilians and combatants, as well as computing the proportionality of an attack. Furthermore, there are complex responsibility questions that are as yet not fully answered.

In response to these problems, the US has issued a directive that all robotic systems of this type will in fact not be operated in a fully autonomous mode, but will always function with a ‘human in the loop’. This statement is apparently intended to undermine at least the legal, and possibly the other criticisms relating to the deployment of LARS.

Human in the loop

It could be argued, however, that the deployment of a LARS with a human in the loop is just as problematic as a fully automated version. While the decision to engage a target will always be overseen by a human being, I will argue that it is not a given that this will in fact influence the functioning of the system sufficiently to adequately safeguard against the problems associated with the fully automated settings.

Firstly, the term ‘human in the loop’ is not very specific. There are a variety of ways in which a system can operate with a human in the loop. Read the rest of this entry…

 

The Legal and Political Feasibility of the EU’s Planned ‘War on Smuggling’ in Libya

Published on June 10, 2015        Author: 

Introduction

On 19 April 2015, after a series of deadly shipwrecks, over 800 migrants perished when their smuggling boats, boarded in the Libyan port Zuwara, capsized in the Mediterranean Sea. The response from the EU was immediate. On 20 April, at a joint meeting of EU Foreign and Interior Ministers, the EU Migration Commissioner presented a 10-point action plan, the second point of which foresaw “[a] systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean”. At the special meeting of the European Council on 23 April 2015, this was streamlined into the commitment to undertake “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. These events precipitated the adoption on 18 May of a decision of the EU Foreign Affairs Council, establishing an EU military operation called EUNAVFOR MED with the mission “[to disrupt] the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers” (Art. 1).

According to Article 2 of the decision, EUNAVFOR MED shall be implemented in three sequential phases. The first phase will be the “lightest”, aiming at the detection and monitoring of migration networks through information gathering and patrolling on the high seas. It is only in the second and third phases that the operation should achieve the aforementioned aspirations. Thus, in the second phase, it is foreseen to board, search, seize and divert suspected vessels, both on the high seas and in the territorial or internal waters of the state concerned whereas for the third phase, the decision speaks of taking all necessary measures against a suspected smuggling or trafficking vessel and related assets, “including through disposing of them or rendering them inoperable in the territory of that State” (Art. 2(b).

The decision makes the implementation of those second- and third-phase measures which need to be conducted in the territorial sea, the internal waters or the land territory of Libya conditional upon “any applicable UN Security Council Resolution or consent by the coastal State concerned” (Art. 2). This is quite logical. As the planned enforcement measures involve a threat or actual use of coercive power, the fundamental international law principles of sovereign equality, territorial sovereignty and non-interference prohibit the EU Member States from exercising enforcement jurisdiction in the territory of Libya (including territorial and internal waters) without: 1) Libya’s permission and/or 2) the authorization of the UNSC under Chapter VII of the UN Charter (on international law implications cf. Gallagher and David, The International Law of Migrant Smuggling, CUP, 2014. p. 222).

Because there are competing authorities claiming to be the government of Libya, and inspired by the previous experience with the UNSC-accepted EU anti-piracy military operation ATALANTA (launched in 2008 in the framework of European Common Security and Defence Policy to combat the piracy off the coast of Somalia), the EU opted from the very beginning for seemingly the easiest and fastest solution, which is to obtain the green light from the UNSC. In the following, I will elaborate on the feasibility of this option. Read the rest of this entry…

 
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For or Against International Arbitration: A Perspective of International Law of Dispute Settlement

Published on June 9, 2015        Author: 

Lady Bracknell is not often relied on as an authority on matters relating to international dispute settlement. Perhaps unjustifiably so; some of the recent debates do bring to mind her remark about end-of-season conversations, ‘when everyone has practically said whatever they had to say, which, in most cases, was probably not much’ (I). ESIL Reflections of Mathias Kumm and Stephan Schill, I hasten to add, do not fall into that category. Even if the readers are not persuaded by their arguments, the precise reason for disagreement is useful for reflecting upon and clarifying one’s own position. I am grateful for the opportunity to offer a few observations of my own, presented from the perspective of international law of dispute settlement.

Kumm and the argument against arbitration

Kumm, it is fair to say, is not a fan of investor-State arbitration. He makes the argument against its inclusion in mega-regional agreements in a forceful, clear, and eloquent manner, which is in many ways appealing. Of course, the cost of making a clear argument about a complicated issue of international law is that pedantic blackletter positivists will (attempt to) side-track the discussion by raising spurious ‘well, yes, but’ objections. Read the rest of this entry…

 

The Most Important Cities in International Law

Published on June 8, 2015        Author: 

Professor Martens’ Departure, a biographical novel about the international lawyer Friedrich Martens by Estonian writer Jaan Kross, describes Martens’ first academic visit to “the West”. The visit takes place in 1869, and goes to Berlin, Amsterdam, and Brussels. This raises the question of where Martens should have gone today. Put differently, what cities are currently the most important in international law?

This question can be answered in different ways. Which cities house the best universities for international law? Which have the most influential State governments? Where are the most important international organisations and courts located? And where are the best private practitioners? I have tried to combine these four parameters into a single rating, to give a highly informal ranking of the top international law cities as of 2015. I welcome readers’ reactions to my attempt to identify international law’s most important cities.

Each parameter has a rating of 0 to 5. The assessments are my own, but are to some extent based on other sources.

  • “Academia” is based on the Quacquarelli Symonds, Academic Ranking of World Univiersities, and Times Higher Education university rankings, with adjustments that reflect my view of the universities’ strength in international law. Only five cities get a top rating for their universities: Cambridge UK, Cambridge MA (Harvard), New Haven (Yale), New York (mainly NYU), and Oxford.
  • The numbers for “IOs and courts” are based on my impression of the practical importance of each city’s institutions in international law. Six cities get a top rating: New York (the UN), The Hague (the most international courts including the ICJ, ICC as well as international organizations), Brussels (mainly the EU and NATO), Geneva (the WTO, the UN, and more), Washington (mainly ICSID, the IMF, and the World Bank), and Strasbourg (mainly the ECtHR and Council of Europe).
  • My views of “State power” are mostly based on GDP numbers, the size and sophistication of armed forces, and membership of important groups and organisations (especially permanent membership of the UNSC). Only Washington and Beijing get a top rating for state power. The US and China have the world’s largest active military forces, military budgets, and GDPs, as well as nuclear weapons and permanent membership of the UNSC.
  • “Private practice” is based on the Legal 500 and Chambers and Partners rankings. Having a separate section for “public international law” and/or “international arbitration” gives a high rating, while having “international arbitration” mentioned in the section on “dispute resolution” gives a somewhat lower rating. Only four cities, Washington, New York, Paris, and London, get a top rating.

The combined result is that Washington is the number one international law city, followed by New York and Paris, ahead of London, Geneva, and Brussels. The full results (for a selection of cities) are as follows: Read the rest of this entry…

 

Announcements: CfP and Symposium on Investment Treaty Arbitration and Environment (Oslo); Reminder: Workshop on Public Int’l Law and EU Law (London); Conference on NSAs and Responsibility in Cyberspace (Sheffield); Seminar on Aftermath of the Financial Crisis (Oslo)

Published on June 6, 2015        Author: 

1.  The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes (Oslo, 5-6 November 2015) – Call for Papers, Deadline: 15 July 2015. PluriCourts, Centre of Excellence at the University of Oslo, is organizing an international symposium entitled ‘The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes’. The symposium will be hosted at the faculty of law of the University of Oslo on November 5 and 6, 2015. Symposium Theme: The symposium will focus on investment treaty arbitration from a forward-looking perspective on how future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments. Call for Papers: We invite scholars, practitioners and doctoral students to submit paper proposals for presentations on topics related to the symposium’s theme. The deadline for submission is July 15, 2015. For more information, please visit the website of the symposium.

2.  The final workshop of the Annual Seminar Series of the Centre for Law and Society in a Global Context (CLSGC)Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law will take place at Queen Mary Innovation Centre, Clark-Kennedy Lecture Theatre, on 25-26 June 2015. The workshop concludes the ‘Beyond Pluralism project, building on the introductory round-table discussion held in October 2014 on general aspects of the EU-PIL interface and the ‘thematic dialogues’ on specific issue-areas that followed until March 2015. The event will gather top-rank contributors, coming from all over Europe, to consider findings and put them into perspective. The objective is to assess how best to articulate the link between the two regimes and possibly re-define their relationship offering a comprehensive account of their interaction, overcoming current limitations of monist, dualist and pluralist approaches. To register and for full programme details, please, visit here.

3.  Non-State Actors and Responsibility in Cyberspace: State Responsibility, Individual Criminal Responsibility and Questions of Evidence. Friday 18 September 2015 – Halifax Hall, University of Sheffield, Endcliffe Vale Road, Sheffield, S10 3ER. This conference brings together leading international experts to assess the effectiveness of international law in ensuring responsibility for the injurious cyber activities of non-state actors. In particular, this conference addresses three critical international legal questions: For further information and registration please visit the conference website here.

4.  A seminar on Finance, Ethics, and Society: Reflections in the Aftermath of the Global Financial Crisis will be held 15 June 2015 in Oslo. The seminar will analyze the relationships between market participants, regulators, and the wider public. The respective roles of self-regulation, international and domestic laws, and litigation and criminal prosecution will be debated. It will identify best practices as well as crucial areas that deserve more debate in the public arena and political reforms. Please contact mads.andenas {at} jus.uio(.)no or giuseppe.bianco {at} jus.uio(.)no for more information. The conference program is here.

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A Response to the Discussants

Published on June 5, 2015        Author: 

The responses to The Thin Justice of International law from four international lawyers and two philosophers represent a welcome continuation of the dialogue I have tried to catalyze with my book. Most of the comments were directed to the theoretical framework, rather than my individual conclusions about the justice of particular norms. So I will focus on those broad concerns. At the same time, I hope readers will also judge the framework not merely in abstracto, but by how well it handles the individual norms that it appraises. If its discussions and conclusions about the justice of the rules on force, self-determination, sovereign equality, IO membership, and other topics prove convincing or at least set some terms for future debates, then the framework will have done what I wanted it to do.

The comments raise so many points that I can only address them briefly here. I will try to tackle them thematically, in a way accessible to readers of both blogs.

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Response to Ratner: “An international lawyer has got to dream…it comes with the territory”

Published on June 4, 2015        Author: 

The premise of Steven Ratner’s book is that political philosophers have paid scant attention, in their reflections on justice, to international law. Ratner seeks to correct this, by offering an account of international law in terms of philosophical conceptions of justice. The premise would only be true if one understood political philosophy as beginning with John Rawls. In fact, as the great jurist Hersch Lauterpacht wrote in his seminal 1927 essay “Spinoza and International Law”, “the relation between political theory & international law is of a more pervading character than is commonly assumed.” From Thucydides (see his intricate account of claims of treaty violation in relation to the start of the Peloponnesian Wars), through de Vittoria, Gentili, Grotius, Pufendorf, Montesquieu, Rousseau (a great innovator in humanitarian law), Kant, through the 20th century debates about global order between Carl Schmitt, Leo Strauss and Alexandre Kojeve, political thinkers – sometimes also jurists –have engaged with conceptions of legal order beyond the state.

What Ratner understands as “political philosophy” is what is conventionally accepted as such by the mainstream in philosophy departments in American universities. While political philosophers in the past have questioned the “state”, its meaning, its place in human order, Ratner simply accepts the “state,” and that international law is and will remain the law of a state system. Even the contemporary philosophers of global justice to whom he refers have imagined federative or democratic conceptions of world order, or have attempted to theorise forms of transnational political organization, above all the European Union. Mainstream international legal professionals may well be comforted by Ratner’s book in being confirmed that the status quo that they represent and reproduced can be defended as “thin” justice, or perhaps more properly, rough justice. Others will question whether there is any real philosophical grounding to Ratner’s efforts to control or cabin their dreams of a better world or their critiques of the actual one.

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