magnify
Home 2018 December (Page 3)

A Complementarity Toolkit?

Published on December 10, 2018        Author: 

Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. It can also restore trust in national institutions, which have been severely damaged or have failed completely in a context of armed conflict or systematic repression.

A recent Human Rights Watch report provides a detailed examination of how the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) can trigger domestic investigations and prosecutions into serious crimes, looking at Colombia, Georgia, Guinea and the United Kingdom as case studies. The report discusses a range of practical actions that the OTP can take as part of its complementarity activities during the admissibility phase of its analysis, and how these actions have played out in various contexts.

In and of itself, the report is a fascinating and useful overview of the chronology of the OTPs engagement in Colombia, Georgia, Guinea and the United Kingdom, with insights and analysis from individuals who played a role in each situation – insider accounts from civil society activists, officials from national prosecuting and judicial authorities, diplomats, and OTP staff.

One of the most enlightening elements that comes out from Human Rights Watch’s research is the detailed examples of various actions that the OTP has taken in different situations. Drawing them out and compiling them, it is striking that they comprise a coherent and practicable toolkit of complementarity measures. They also fall squarely in line with the steps that national prosecutors have to take to retain control over proceedings in their countries. Broadly speaking, they fall into five steps — Read the rest of this entry…

 
Comments Off on A Complementarity Toolkit?

EJIL:Talk! Is 10 Years Old

Published on December 10, 2018        Author: 

Yesterday and today saw the marking of a couple of significant anniversaries in international law. 9 December was the 70th anniversary of the adoption, by the United Nations General Assembly of the Genocide Convention. Today is Human Rights Day and is the 70th anniversary of the adoption, also by the General Assembly, of the Universal Declaration of Human Rights (UDHR).  We are at EJIL are also marking are own anniversaries. The Journal was founded in 1989 and will  have been published for 30 years in the New Year (see this call for papers). EJIL:Talk! is a decade old this week!

The blog was launched on 9 December 2008. Our first posts on that day (here and here) followed on from a special issue of EJIL marking the 60th anniversary of the UDHR and contained a, shall we say ‘spicy’, exchange on relationship between human rights and international economic law.  We followed up that same day with an editorial by EJIL’s Editor-in-Chief, Joseph Weiler, in which he also marked the UDHR and reflected on the crisis of the day in the European Union – the demise of the European ‘Constitution’ and the troubles then caused to entry into force of the Treaty of Lisbon by the Irish vote of ‘No’ in a referendum. There were calls then for the Irish to be asked to vote again! My own first post on this blog was on 12 December and sticking with the human rights theme, I opened with a post on ‘The Application of Human Rights Treaties in Wartime’.

We will be celebrating the decade old existence of the blog properly in the New Year. For now, I would simply like to remind readers that when the blog started 10 years ago, it was a venture into the unknown. There were a number of blogs around but the combination of a leading journal (or even any journal) having its own blog and having the aim of making it a scholarly blog which would carry on the project of serious reflection on legal issues was rare, if not completely unknown. EJIL:Talk! was thus an experiment. 

Read the rest of this entry…

Filed under: EJIL
 

Announcements: University of Edinburgh Vacancy; CfP The Protection of Cultural Heritage and Municipal Law

Published on December 9, 2018        Author: 

1. University of Edinburgh Lecturer in International Economic Law Vacancy. Applications are invited for one Lectureship at the Edinburgh Law School from candidates with demonstrable expertise in international economic law, ideally with additional expertise in international human rights law or international environmental law. Interviews are expected to be held in late January, with a start date in August 2019. The closing date for applications is 3 January 2019. For further information, see here

2. Call for Papers: The Protection of Cultural Heritage and Municipal Law. The American Society of International Law’s Cultural Heritage and the Arts Interest Group (CHAIG) and Fordham University School of Law’s Urban Law Center, in collaboration with the Quebec Society of International Law (SQDI), invite academics and graduate students to submit paper proposals for a works-in-progress workshop on “The Protection of Cultural Heritage and Municipal Law.” The workshop will be held at Fordham University’s School of Law, in Midtown Manhattan, New York City, on 5 April 2019. Paper proposals of no more than 500 words should be sent to sabrina.tremblay- huet {at} usherbrooke(.)ca before 30 December 2018. The authors of the selected proposals will be notified by 18 January 2019. Proposals from emerging scholars and graduate students are highly encouraged. Draft papers must be submitted no later than 18 March 2019. Please note that no funding is available to cover transportation and accommodation for participants. Attendance at the workshop is, however, free of charge, subject to prior registration. The full call for papers is here.

Filed under: Announcements and Events
 
Comments Off on Announcements: University of Edinburgh Vacancy; CfP The Protection of Cultural Heritage and Municipal Law

Complementarity (in)action in the UK?

Published on December 7, 2018        Author: 

Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In response to the 2014 re-opening of an International Criminal Court (ICC) preliminary examination into the situation in Iraq, Britain put in place legal measures to address the alleged crimes committed by UK forces in Iraq currently being examined by the ICC. These measures include a specialized investigatory unit, known as the Iraq Historic Allegations Team (IHAT), replaced last year by a smaller service police investigation, known as SPLI. British authorities argue that their efforts represent “a clear demonstration of complementarity in action”, therefore precluding an ICC investigation.

In Pressure Point – a recent research report by Human Rights Watch (HRW) investigating the claims made about positive complementarity in four case studies, including the Iraq / UK situation – HRW rightly paints a more murky picture of the legal processes in Britain as well as the ICC’s ability to influence them. Indeed, HRW observes that legal responses in Britain have been “piecemeal, ad-hoc, and almost exclusively driven by the efforts of individual victims, their families, and legal representatives”. It also concludes that the ICC’s examination “neither catalyzed national investigative activities in the UK, nor impacted the existing domestic structure established to address allegations of abuses by British armed forces in Iraq” in any significant way. My own research similarly points to significant challenges in making positive complementarity work in the Iraq / UK situation.

In this post, I consider some of the key challenges for ensuring positive complementarity in Britain and reflect on what this tells us more broadly about the ICC’s complementarity regime. Read the rest of this entry…

 

The ICC’s Impact on National Justice: Can the ICC Prosecutor Catalyze Domestic Cases?

Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

The International Criminal Court (ICC) is a court of last resort. Under the court’s treaty, the Rome Statute, which marks its 20th anniversary this year, the world’s worst crimes are admissible before the ICC only if national authorities do not genuinely investigate and prosecute cases. Far from simply a jurisdictional limitation, this principle of “complementarity” transforms the ICC from a single institution into a broader system for prosecuting international crimes, rooted in national courts.

Bolstering national proceedings is crucial to giving full effect to the Rome Statute system. It’s also necessary to broaden victims’ access to justice. The number of situations in which the ICC should act is probably far greater than the court’s founders envisioned. The ICC’s limited resources—provided all too sparingly by its member countries—mean it is struggling to keep up.

More attention should be paid to the ICC’s potential as an active player on national justice. Under the concept of “positive complementarity” it can serve as part of a wide array of efforts to press and support national authorities to carry out genuine investigations and prosecutions. The ICC is not a development agency, but it can lend expertise, broker assistance between other actors, and maintain focus on the need for accountability.

This is the case when the ICC opens its own investigations, as there will be a need for additional domestic investigations and prosecutions to bring comprehensive accountability. But the ICC’s Office of the Prosecutor has a particularly important role to play when it is still considering whether to open an investigation, during “preliminary examinations.”

This is because the prosecutor’s office has unique leverage in some of these preliminary examinations. If national authorities have an interest in avoiding ICC intervention, they can do that by conducting genuine national proceedings. By making the most of this leverage, the prosecutor’s office can be an effective catalyst for justice. The office recognizes that opportunity and has made it a policy goal to encourage national proceedings when it is feasible.

Human Rights Watch supports these efforts, given that they could help extend the reach of justice. But building on a set of 2011 recommendations, we wanted to take a fresh look at whether and how this policy is working, with a view toward strengthening its effect.

Our findings are set out in a May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom. 

Read the rest of this entry…

 
Comments Off on The ICC’s Impact on National Justice: Can the ICC Prosecutor Catalyze Domestic Cases?

Joint Symposium with Justice in Conflict on Human Rights Watch’s Report on The ICC’s Impact on National Justice

Published on December 6, 2018        Author:  and

While investigations by the International Criminal Court (ICC) have received the lions’ share of attention and scrutiny from scholars and observers, there has been a growing interest in the impact of the ICC’s preliminary examinations. The preliminary examination stage requires the ICC Prosecutor to ascertain whether alleged crimes fall within the Court’s jurisdiction, whether the crimes are of sufficient gravity to warrant investigation, whether there are ongoing proceedings related to those alleged crimes, and whether an investigation into alleged atrocities would be in the “interests of justice”. If the answer to each is ‘yes’, then the Prosecutor can seek an official investigation.

There are currently ten open preliminary examinations across four continents: Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, the Philippines, Bangladesh/Myanmar, Ukraine, and Venezuela. But what have the political and legal impacts of these preliminary examinations been? Have they galvanized greater interest in achieving accountability? What lessons can be drawn from preliminary examinations to date in order to improve the prospects of justice?

To answer these and other questions, EJIL:Talk! and Justice in Conflict are delighted to host a discussion of the Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, and of ICC Preliminary Examinations more generally.

The symposium coincides with the Assembly of States Parties (ASP) to the ICC, which begins its annual session this week. One of the highlights of the ASP is the release of the Office of the Prosecutor’s (OTP) 2018 Report on Preliminary Examination Activities. The report summarises the activities of the Office with regard to situations which are under preliminary examination by the Prosecutor.  

Read the rest of this entry…

 
Comments Off on Joint Symposium with Justice in Conflict on Human Rights Watch’s Report on The ICC’s Impact on National Justice

Some Concerns with the Pre-Trial Chamber’s Second Decision in Relation to the Mavi Marmara Incident

Published on December 5, 2018        Author: 

On 15 November 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a decision in response to an application by The Comoros seeking judicial review of the Prosecutor’s ‘final decision’ not to proceed with the investigation of the Situation on the Registered Vessels of the Union of The Comoros, The Hellenic Republic of Greece and Cambodia (Mavi Marmara incident). This decision is the most recent in a string of proceedings since The Comoros first referred the situation to the Court in 2013. In brief: following the publication of the Prosecutor’s 2014 report declining to initiate an investigation on grounds of insufficient gravity, The Comoros sought review under Article 53(3)(a) of the Rome Statute. The Pre-Trial Chamber’s 2015 decision found several errors in the Prosecutor’s application of gravity and requested her to reconsider her decision not to investigate. In response, the Prosecutor sought to appeal the decision under Article 82(1)(a) by characterising it as one pertaining to admissibility. The appeal was dismissed in limine on the ground that the Pre-Trial Chamber had not ruled on the admissibility of the situation; ‘the final decision in this regard being reserved for the Prosecutor’ (para 64).

When in 2017 the Prosecutor published her ‘final decision’ detailing the reasons for her decision (upon reconsideration) not to investigate, The Comoros sought a second review under Article 53(3)(a) and the decision of the Pre-Trial Chamber this November was issued in response. The decision relies on the finding that the Pre-Trial Chamber’s 2015 decision constituted a ‘final judicial decision’ (para 96). From this, the Court draws the following consequences: (1) that the Prosecutor is obliged to comply with its 2015 decision, (2) that the 2015 decision must constitute the basis for the Prosecutor’s reconsideration, and (3) that the Prosecutor’s ‘final decision’ – by failing to do so – is not final at all. These proceedings have tested the limits of prosecutorial discretion in the initiation of investigations under Article 53(1) of the Rome Statute, and it is in this context that this post identifies three problematic aspects of the Pre-Trial Chamber’s decision. Read the rest of this entry…

 
Comments Off on Some Concerns with the Pre-Trial Chamber’s Second Decision in Relation to the Mavi Marmara Incident

The Kerch Strait Incident: Law of the Sea or Law of Naval Warfare?

Published on December 3, 2018        Author: 

On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.

The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.

Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.

Read the rest of this entry…

 

Announcements: CfP Ethiopian Yearbook of International Law; University of Michigan Junior Scholars Conference; Implications of Brexit for Trade Relations; ASIL IOIG Workshop

Published on December 2, 2018        Author: 
1. Call for Papers: The Ethiopian Yearbook of International Law. The Ethiopian Yearbook of International Law (EtYIL), which is motivated by the need to ‘rebalancing the narrative of international law’, was launched in 2015. The first volume, EtYIL 2016 was successfully published in 2017; building upon the successes of the first volume the second volume of EtYIL 2017 came out in 2018 covering topics ranging from African continental free trade area, foreign direct investment law, and contributions to UN peacekeeping from the global south. We are now finalising the third (2018) volume which will come out in early 2019, covering a range of cutting-edge international law issues of regional and global significance. We are pleased to invite interested scholars  to consider submitting long or short articles, current development pieces, case reports and book reviews for consideration for the fourth (2019) volume of the Yearbook (submission guidelines and other details available here). Submission deadline for this volume is 30 November 2019. We would like to hear your potential ideas and topics at ethiopianyearbook {at} gmail(.)com.
 
2. University of Michigan Law School 5th Annual Junior Scholars Conference. The University of Michigan Law School invites junior scholars to attend the 5th Annual Junior Scholars Conference, which will be held on 26 – 27 April 2019 in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed. Applications are due by 12 January 2019. Further information can be found at the Conference website.

Read the rest of this entry…

Filed under: Announcements and Events