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Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and

This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

 

COP 24 and Climate Finance: A Stepping Stone or a Blurred Line?

Published on January 23, 2019        Author: 

In December 2018, the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC), took place in Katowice, Poland. The main objective of those negotiations was to finalize the so called ‘Paris Rulebook’ [the Paris Agreement Work Programme (PAWP)], which would constitute a set of rules to implement and operationalize the Paris Agreement. The issues at stakes varied from mitigation, adaptation and loss and damage, to more technical issues, such as transparency, climate finance and carbon market mechanisms under the Paris Agreement.

This post will focus on the progress made on the issue of climate finance based on an analysis of the COP 24 decision on the relevant issues. I begin by reiterating the importance of the findings presented by the latest reports of the Intergovernmental Panel on Climate Change (IPCC) and the Standing Committee on Climate Finance (SCF) under the UNFCCC. The SCF report on the biennial climate finance assessment highlighted the current methodological challenges concerning the reporting and verification of public and private climate finance, referring to the existence of uncertainties and gaps regarding the collection of climate finance data. Some of the SCF recommendations to the COP include i) enhancing the transparency, consistency and comparability of data on climate finance, ii) encouraging Parties providing climate finance to enhance their reporting of climate finance provided to developing country Parties and iii) encouraging developing country Parties that provide support to report information on climate finance provided to other developing country Parties.

One of the most ambiguous, but at the same time significant issues of the COP 24, was that of accounting and reporting on climate finance. The Paris Agreement contains two main provisions on financial flows, namely: article 2.1(c) providing for a general framework of making financial flows climate resilient; as article 9, which, apart from the general climate finance obligation, also provides for the ex-post and ex-ante finance transparency. The operationalization of the latter has been one of the main tasks of COP 24. The formal COP 24 agenda provided for the negotiation of the following matters relating to climate finance:

  1. long-term climate finance,
  2. matters relating to the SCF,
  3. the Green Climate Fund (GCF),
  4. the Global Environment Facility (GEF) and
  5. the identification of the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement.

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To Reform the World: International Organizations and the Making of Modern States – A Reply to the Discussants

Published on January 22, 2019        Author: 

Earlier this month we hosted a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Below is Guy’s reply to the discussants. We are grateful to all of the participants for their role in this discussion

I am extremely grateful for the sensitive and sympathetic comments on my book in the posts by Jan Klabbers, Megan Donaldson, Devika Hovell, and Edouard Fromageau. Together, they offer a rich set of reflections on the book’s themes, each informed by their distinctive scholarly interests and expertise. In reading them, I found myself nodding along, with very little disagreement on even the more critical points. What follows, then, is not an attempt to debate any particular issue, much less all of them, in the systematic manner they deserve – but rather an effort to engage with a few of the wide-ranging concerns raised by four scholars for whom I have the deepest respect, in the hope that doing so will help to advance the conversation and stimulate further reflection and research.

Several of the posts raise questions relating to perspective and methodology. The book’s particular focus emerged from an effort to answer a relatively narrow set of questions, albeit ones that have broader implications for how we understand international law and organizations. Seeking to understand how international organizations have been able to expand their powers informally beyond the terms of their constituent instruments, and the role of international law in making that expansion seem possible and legitimate, led me to look beyond the relatively restricted set of legal materials traditionally examined by international organizations lawyers. Examining a handful of overlapping episodes involving three organizations with very different purposes, structures, and histories, the book adopts a socio-legal methodology which makes it possible to explore the variable role of (international) law in the public discourse and practices of those organizations.

But what does this kind of analysis help us to see, what does it overlook, and what does it obscure? While not the central thrust of his post, Jan Klabbers rightly points out that, by concentrating on fairly well-known organizations – the International Labour Organizations (ILO), the United Nations (UN), and the World Bank – the book leaves open the question whether the same framework of analysis could be extended to other organizations which are less well-studied and may present more anomalous or harder cases, such as the United Nations High Commissioner for Refugees, the Organization for Security and Co-operation in Europe, the International Olive Council, or the International Organization for Migration (IOM). Moreover, as Megan Donaldson wonderfully shows through a vignette by Shirley Hazzard, the book’s focus on the speeches, writings, and actions of senior international civil servants leaves unexplored the perspectives of lower-level officials in the same organizations. Read the rest of this entry…

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Holding States to Account for Gender-Based Violence: The Inter-American Court of Human Rights’ decisions in López Soto vs Venezuela and Women Victims of Sexual Torture in Atenco vs Mexico

Published on January 21, 2019        Author: 

In two recent decisions, the Inter-American Court of Human Rights (IACtHR) has affirmed the existing binding obligations of States to address gender-based violence against women by State and non-State actors. The López Soto vs Venezuela decision (published in November 2018) is the IACtHR’s first ruling on State responsibility for acts of sexual torture and sexual slavery by a private actor and its first case for gender-based violence against Venezuela. The Women Victims of Sexual Torture in Atenco vs Mexico decision (published in December 2018) sets out the State obligations in cases of sexual torture by state security forces. Both rulings build on the IACtHR’s prior gender jurisprudence and set important new precedents by providing detailed content to the duties of due diligence and by explaining the circumstances in which States can be held liable for breaching them.

The López Soto vs Venezuela case examines the circumstances in which acts of gender-based violence by private actors can be attributed to the State. In 2001, a well-connected private individual kidnapped Linda Loaiza López Soto, then 18 years old, in Caracas, Venezuela, holding her hostage for over three months. During her captivity, she was brutally tortured, raped and humiliated. In her February 2018 testimony before the IACtHR, she provided a harrowing account of the sadistic abuse she endured, the multiple surgeries she underwent for her injuries following her rescue, and the lasting impact of these injuries. López Soto brought her case before the IACtHR after domestic authorities failed to duly investigate and prosecute the crimes, convicting her abductor of lesser charges.

The Court focused its analysis on two contentious issues: (1) whether the conduct of a private actor could be attributed to Venezuela; and (2) whether this conduct amounted to torture and sexual slavery under international law, as argued by the plaintiff. Read the rest of this entry…

 
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Announcements: Cambridge International Law Conference; UN Audiovisual Library of International Law; CfA Manchester International Law Centre; International Economic Law Focus Doctorate; JUFIL and GRILI Conference; CfP Northern European Conference on Emergency and Disaster Studies; New Blog on International Economic Law Matters in Africa; CfP Eighth PEPA/SIEL Conference; RECONNECT Workshop

Published on January 20, 2019        Author: 

1. 8th Annual Cambridge International Law Conference 2019. Registration for the 2019 Cambridge International Law Conference taking place at the Faculty of Law, University of Cambridge on the 20 and 21 of March 2019 is now open. To register, please see here. For further information, see here.  

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms. María Teresa Infante Caffi on “The Antarctic under international law“ (in Spanish) and Ms. Leila Nadya Sadat on “Interpreting the Statute of the International Criminal Court“. The Audiovisual Library is also available as an audio podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Applications: Manchester International Law Centre. The Manchester International Law Centre (MILC) is holding its first Emerging Scholars Workshop on 25 June 2019 in Manchester. The aim of the Workshop is to bring together a carefully selected group of eight doctoral students. During the workshop, the participants will receive tailored feedback on their research project through closed roundtable discussions with Jean d’Aspremont, Iain Scobbie and John Haskell. In addition to the roundtable discussions, the event will also include sessions on publishing in international law and how to prepare for a job interview and compose postdoc applications. Applicants are expected to be at an advanced stage of their PhD studies and must be focusing their doctoral research on a question related to international law, international legal practice, and/or international legal theory. Abstracts of no more than 500 words and a one-page CV should be submitted to isil.aral {at} manchester.ac(.)uk by 15 March 2019. The subject line of the email must read “MILC PhD Workshop” followed by the surname of the author. For more details see: MILC Emerging Scholars Workshop. Read the rest of this entry…

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Joint Blog Series on International Law and Armed Conflict: Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners

Published on January 19, 2019        Author: 

The third post in our joint series hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict, “Better Safe Than Sorry: Transferring Detainees Safely to Coalition Partners” by Tilman Rodenhäuser (ICRC) is available now over on Lawfare.

Here’s a taster of Tilman’s post:

Faithful application of the principle of non-refoulement can mean that it is not possible to lawfully transfer a person to another authority—for instance when the recipient authority is notorious for torturing or otherwise ill-treating detainees, or for executing them without fair trial. Practically, this means that the international forces are stuck with the detainee during extraterritorial operations. Short-term solutions in such situations include keeping a detainee in accordance with applicable procedural safeguards, finding an alternative authority to which transfers are lawful, or releasing the detainee. For longer-term solutions, states should work more systematically with partners to ensure humane treatment of detainees, including through assisting in developing necessary rules and procedures, training partner forces, or jointly managing certain detention facilities.

In light of the various legal and operational challenges that extraterritorial detention may entail, it could seem tempting to avoid taking prisoners at all, for instance by conducting “partnered operations” in which only local partners take detainees.

Read the rest of Tilman’s post over on Lawfare.

Other posts in the series:

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Acquittals by the International Criminal Court

Published on January 18, 2019        Author: 

Earlier this week, a Trial Chamber of the International Criminal Court acquitted Laurent Gbago, former President of Côte d’Ivoire, and his right-hand man, Charles Blé Goudé. (In what follows, I will refer only to Gbagbo). By a majority of two to one, the judges held that there was insufficient evidence to place Gbagbo on his defense. The Prosecutor has indicated that she will appeal this decision.

Critics of the ICC claim that this track record constitutes an indictment of the Court. They point, in comparison, to the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.  

I would suggest, however, that the comparison is not a fair one. In the case of the UN tribunals, each court was given a specific mandate that extended over a defined territory – the states that comprised the former Yugoslavia in the case of the first and Rwanda in the second. They were supported by resolutions of the Security Council that were legally binding on all members of the United Nations. They had the full and active support of the United States that brought its political and economic muscle to back that support. On the other side, the ICC has jurisdiction over war crimes perpetrated in 123 States or committed anywhere by a person who is a national of one of those 123 States. On this ground alone the differences become manifest.

That mistakes have been made by organs of the ICC cannot be doubted. However, it is always easy to criticise in hindsight. Some proceedings have taken too long. Some of the judges have been less than prompt in issuing their decisions. Criticism of, as well as praise for, the ICC has come both from civil society and from governments.

In June 2018, there was a massive outpouring of criticism at the decision of a majority of the ICC Appeals Chamber acquitting the former Vice-President of the Central African Republic, Jean-Pierre Bemba. 

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Joint Blog Series: Sieges, Evacuations and Urban Warfare: Thoughts from the Transatlantic Workshop on International Law and Armed Conflict

Published on January 17, 2019        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence in July.

Conflict in urban or populated areas poses an enormous danger to civilians and to the civilian infrastructure that sustains the civilian population. The law of armed conflict (LOAC) requires that parties to a conflict take constant care ‘to spare the civilian population, civilians and civilian objects.’ During the conduct of hostilities, the principles of distinction, proportionality and precautions mandate rules for the identification of targets, minimization of incidental harm to civilians, and precautionary measures to avoid or minimize harm to civilians.

How to implement these principles and obligations is, of course, a significant challenge—but the questions of how to mitigate civilian risk and harm while carrying out the military mission go beyond the conduct of hostilities and are equally challenging and important. Our discussions at the Transatlantic Workshop highlighted and probed one particular set of concerns—how to balance different legal norms and operational considerations regarding evacuation and the corresponding prohibition of forced displacement, and sieges and the corresponding prohibition of starvation as a method of warfare.

Is evacuation of civilians an option? In what circumstances?

Imagine a military wants to evacuate civilians from an area—either within its own territory or in another State’s territory where the hostilities are expected or ongoing. The motivation is both humanitarian and based on military considerations: removing civilians from the area of hostilities protects them from harm and also frustrates the enemy’s attempts to use them as human shields or otherwise endanger them for tactical or strategic purposes. Read the rest of this entry…

 
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Economic Espionage under International Law

Published on January 16, 2019        Author: 

In December 2018 the Council on Foreign Relations and the BBC published independent reports identifying China as a prolific perpetrator of economic espionage. Economic espionage describes the state-sponsored theft of confidential information belonging to foreign companies. Once obtained, the state passes the stolen information to domestic companies in order to enhance their competitive position within the market and, by making them more profitable, to strengthen the national economy.

Economic espionage costs victim companies millions of dollars a year. Given that nowadays states draw a direct line between the maintenance of their economic security and their national security, states have increasingly determined that economic espionage constitutes a threat to national security. Indeed, the intensity of this threat has been amplified since the advent of cyberspace because of the vast amounts of business information stored in this domain combined with the ease, speed and anonymity with which it can be accessed. Read the rest of this entry…

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Founding “Fathers” of International Law: Recognizing Christine de Pizan

Published on January 15, 2019        Author: 

Editor’s Note:  This post was first published by the author in French in the Galerie des internationalistes francophones (Gallery of French-Speaking Internationalists) on the website of the French Society for International Law (SFDI).  We are particularly grateful that Professor Latty’s translated version will reach the EJIL:Talk! readership around the world.

At the start of 2019 and the year long campaign designed around International Women’s Day on 8 March 2019, it may be particularly apt for the readers of EJIL: Talk! to consider Christine de Pizan (around 1365 – around 1430), a medieval woman of letters, as one of the founders of international law – even if somewhat surprising for several reasons.  One is the anachronism attached to this qualification, the invention of the word “international” attributed to Bentham in 1780 being much later than Pizan’s passage on earth. At that time, only a few States, in the contemporary sense of the term, had taken shape, while the idea of a legal system organizing their relations was still in limbo. Moreover, Pizan is not a woman of law but an intellectual “all-rounder”. Above all, she has been completely ignored by internationalist scholars – with the notable exception of the Belgian Ernest Nys who devoted several studies to her work, or rare authors such as Anzilotti who mentioned her contribution in his Corso di diritto internazionale (vol. I, transl. G. Gidel, Sirey, 1929). She has since disappeared again from the teachings of the most highly qualified publicists, whereas since the end of the 20thcentury, the rediscovery of her work has been the subject of extensive study in other fields of human and social sciences.

(Photo source here.)

However, her Livre des faits d’armes et de chevalerie (The Book of Deeds of Arms and of Chivalry) is one of the first known texts on the law of war. This is why a legal historian specializing in the status of women once presented Pizan not without emphasis as the “mother of international law” (M. T. Guerra Medici, « The Mother of International Law: Christine de Pisan », Parliaments, Estates and Representation, vol. 19, 1999, n° 1,pp. 15-22), thus supplanting a Grotius whose paternity was already highly doubtful (Ch. Leben, « Grotius : père du droit international », in Dictionnaire des idées reçues en droit international, Paris, Pedone, 2017, pp. 279-285). In any case, in the pantheon of the founding “fathers” of international law, haunted by men, Pizan should occupy a special place: she is not only the first woman to have written about “international” law; she is one of its very first known authors, even before Vitoria, Gentili or Suarez.

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