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R v TRA: Article 1 of the Convention Against Torture and the Public Official Requirement

Published on November 20, 2019        Author: 

 

Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level.   Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.

It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.

Ordinary Meaning of Article 1

In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…

 

International Law and Maritime Terrorism

Published on November 19, 2019        Author: 

 

The death of the Islamic State’s (IS) leader (27 October 2019), Abu Bakr al-Baghdadi, in a US operation in Syria has again put international terrorism at the centre stage. Precisely, this blog post discusses a manifestation of international terrorism: maritime terrorism. As evidenced below, analyses of maritime terrorism are relevant in international law and policy. Yet, maritime terrorism has received limited attention, arguably because most terrorist attacks take place on land or aircrafts. This post aims to draw attention to this key and topical issue and has two parts: a discussion on the need to create a category of maritime terrorism as an international crime, and an analysis of difficulties related to the definition of maritime terrorism as an international crime. Despite its focus on maritime terrorism, the post also applies to international terrorism at large.    

Urgency of creating a category of maritime terrorism as an international crime

Two reasons arguably demand the crafting of maritime terrorism as an international crime. A first reason is that international terrorist groups such as the IS and, sometimes, allegedly state-sponsored individuals have committed a number of maritime terrorist attacks during the last decades, leading to related state and international practice. For instance, on 23 September 2019, a group affiliated with the IS in the Philippines aboard two pump boats ambushed and seized three fishermen off the coast of East Sabah (Malaysia). Indeed, maritime terrorist activities in the Malacca and Singapore Straits have prompted The Philippines, Indonesia and Malaysia via a Trilateral Cooperative Agreement (2017) and ASEAN to act. There is also a bilateral agreement between the Philippines and India (October 2019) aimed to strengthen their ties to ensure maritime security, particularly as for maritime terrorism. Earlier this year (May 2019), four Saudi oil tankers, one bound for the US, were attacked following warnings that Iran or proxies could target shipping although the Security Council (SC) fell short of blaming Iran. These examples illustrate the current relevance of analyses of maritime terrorism under international law. It was indeed a maritime terrorist attack that prompted the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) (1988). The Achille Lauro, an Italian-flag cruise ship, was seized by Palestine Liberation Front members (October 1985). They held the ship’s crew and passengers as hostages, threatened to kill them, and demanded Israel to release 50 prisoners to spare the hostages. In the post 9-11 era, a number of maritime terrorist attacks have occurred, including Al-Qaida attacks against the US destroyer Cole in Yemen (2000), a French oil tanker in Limburg (2002), and an offshore oil terminal in Iraq (2004), as well as an IS-affiliated group’s attack on an Egyptian vessel in the Mediterranean Sea (2015). Read the rest of this entry…

Filed under: Terrorism
 

Part II: What can be done about the length of proceedings at the ICC?

Published on November 18, 2019        Author:  and

 

Editor’s note: This is Part II of a two-part post. See Part I here.

Recent improvements

In recent years, the Assembly of States Parties, Presidency, Chambers, Registry, and Office of Prosecutor have all made efforts to make the ICC proceedings more efficient.

Back in 2010, the Assembly of States Parties established the Study Group on Governance to expedite the proceedings, and enhance the ICC’s efficiency and effectiveness. In 2012, the ICC created the Working Group on Lessons Learnt to take stock of existing practices and consider measures for improvement. These two groups have, together, galvanised other efforts to tackle the issue. Such efforts include proposing amendments to the Rules of Procedure and Evidence, in particular rules 132 bis and 68, later adopted by the Assembly of States Parties.

By a resolution in December 2014, the Assembly of States Parties requested the development of qualitative and quantitative performance indicators for the Court. The first report on performance indicators was published in November 2015 with the stated goal that ICC proceedings should be “expeditious, fair and transparent at every stage”. It identified ten non-exhaustive factors as likely to affect the length of proceedings. It suggested that these factors could be used to provide benchmark estimates for the likely duration of cases and that the degree of variance from such benchmarks would be the eventual performance indicator. The 2015 report identified three other areas of concern: the interstitial periods between different stages of the proceedings, judicial reaction time in providing decisions on filings, and the fullest possible use of the courtrooms. Read the rest of this entry…

 
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Announcement: Sovereignty and Non-Intervention Event – State Cyberattacks; CfP Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law

Published on November 17, 2019        Author: 

 

1. Sovereignty and Non-Intervention: The Application of International Law to State Cyberattacks. This event will take place on Wednesday 4 December 2019 from 5:30pm to 7:00pm at Chatham House, 10 St James’s Square, London, SW1Y 4LE. International law applies to cyber operations – but views differ on exactly how. Does state-sponsored interference in another state’s affairs using cyber means – for example,  disinformation campaigns in elections, disabling government websites, or disrupting transport systems – breach international law? If so, on what basis and how are the principles of sovereignty and non-intervention relevant? This event will bring together a broad group of actors, including policymakers, the private sector, legal experts and civil society, and will be followed by a drinks reception. For more information, and to register interest, see here. The event will be chaired by Elizabeth Wilmshurst, Distinguished Fellow, International Law Programme, Chatham House.

2. Call for Papers: 9th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law 2020. The conference is organised by the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) in collaboration with the International Law Forum and other sponsors at the Hebrew University of Jerusalem, 17-19 May 2020. The scope of the conference is broad, and we invite submissions on any IEL topic. Submissions should include (1) a CV (no more than 2 pages); (2) an anonymized research abstract (no more than 400 words), to be sent no later than 31 January 2020. Should you have any questions regarding application or participation, please feel free to contact pepasiel2020 {at} gmail(.)com.  More information: 9th PEPA/SIEL Call for Papers.

Filed under: Announcements and Events
 

Part I: What can be done about the length of proceedings at the ICC?

Published on November 15, 2019        Author:  and

 

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings? Read the rest of this entry…

 
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The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Published on November 14, 2019        Author: 

 

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision). Read the rest of this entry…

 

Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 

 

The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.

This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.

The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.

However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary. Read the rest of this entry…

 
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Social Justice Quests in the Process of Development-induced Displacement

Published on November 12, 2019        Author: 

 

“For millions of people around the world—development has cost them their homes, their livelihoods, their health, and even their very lives.”

                             – W. Courtland Robinson

Introduction

The term development-induced displacement (DID) by itself mirrors two contradictory notions, which rightly represent the dilemma associated with this form of involuntary displacement. On the one hand, “development” has a positive connotation, as it represents the social and economic advancement of a given society, and on the other hand, displacement entails the involuntary removal of people from their homes or residences, which comes with various socio-economic risks. DID, whether or not it is followed by planned resettlement, refers to the involuntary displacement of persons from their homes or habitual residence in order to make a room for development projects. With the proliferation of large scale development projects, particularly in developing and highly populated countries, DID has emerged as one of the prominent causes of internal displacement affecting an estimated number of 15 million people every year (see Heather Randell, 2017).

DID has various risks and impacts, which extends from inherent socio-economic problems to grave human rights violations, on displaced persons. This is especially true when the resettlement programs fail short of equitable standards and adequate procedural guarantees are not accorded. The acquisition of land and eviction that DID entails subject those affected to homelessness, landlessness, loss or decrease of income, and social disintegration, among others. These further create unfavourable living conditions, food insecurity, and increase morbidity and mortality rates. These consequences of DID often extend to a long period resulting in chronic impoverishment of those affected. Overall, as Michael Cernea puts it, “being forcibly ousted from one’s land and habitat by a dam, reservoir or highway is not only immediately disruptive and painful, it is also fraught with serious long term risks of becoming poorer than before displacement, more vulnerable economically, and disintegrated socially” (see Michael Cernea, in Tim Allen (ed), 1996). Having this background in mind, this article seeks to elucidate the social justice concerns DID gives rise to. Read the rest of this entry…

Filed under: Human Rights
 

The Diversity of Rules on the Use of Force: Implications for the Evolution of the Law

Published on November 11, 2019        Author: 

Last month, I had the pleasure and honour to deliver one of the keynote lectures at the Canadian Council of International Law Annual Conference. The theme of the conference was “Diversity and International Law” and I chose to speak about the diversity of rules on the use of force and the implications of that diversity for the evolution of the law. I am pasting the text of my lecture here

In this lecture I wish to address the question whether the law relating to the use of force – as set out in the UN Charter – has been capable, and is capable, of adapting to meet new threats and challenges facing the international community. My focus is not on the substance of the rules but rather on how they change. In particular, I wish to show that we need to be attentive to the nature of diverse nature of the rules in this area as we think about the possibility of their evolution.

Yesterday was the 74th anniversary of the entry into force of the United Nations Charter. It was around the time of the 50th anniversary of the UN that literature began to emerge suggesting that we might think of the UN Charter as a constitution for international society. Whether one agrees with that characterisation or not the Charter shares at least a couple of features with constitutions – it aims to lay down an overarching framework for the community it applies to, and is intended to be an abiding document in terms of duration. This immediately raises questions about whether the document can continue to regulate new and unforeseen challenges. This is particularly true of the Charter rules relating to the use of force.

Areas Where Evolution of the Charter Rules on Use of Force Have Been Called For

One can think of at least four areas where it has been argued that rules of the UN Charter ought to be adapted (or have been adapted, depending on one’s point of view) to meet new challenges : Read the rest of this entry…

 

Announcements: Conference, What Room for Military Assistance on Request in the International Legal Order; Lecture, On Data – Givens of Global Law

Published on November 10, 2019        Author: 

 

Conference: ‘What Room for Military Assistance on Request in the International Legal Order?’ On Thursday 5 and Friday 6 December 2019, the Journal on the Use of Force and International Law (JUFIL, Routledge) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) will host an international conference focusing on ‘military assistance on request’. Having regard to recent third-State interventions in Yemen, Syria and elsewhere, the conference seeks to explore the legal framework governing such interventions, including relevant uncertainties and shortcomings as well as proposals de lege ferenda. Separate expert panels will be devoted e.g. to the ‘authority’ to invite outside intervention on the one hand, and the permissibility of third-State intervention in situations of civil war on the other hand. The conference programme and registration link are available here.

Lecture: On Data – Givens of Global LawOn 20 November The Centre for Law and Society in a Global Context (GLGSC) will host its Annual Lecture, to be delivered by Professor Fleur Johns. The title of the lecture is On Data: Givens of Global Law. This talk focuses on a medium in which people, places and things are being connected, divided, aggregated and distributed juridically on the global plane: digital data. It will explore how, to whom, under what conditions and in what formats digital data are being given in certain practices of contemporary international law: specifically, in aspects of international development and humanitarian work in which the adoption of digital data and data science techniques is being encouraged. More precisely, it will consider some ramifications of the growing digitization of two key knowledge formats for international law: facts and populations. It will ask what givens may be constituted or reconstituted – or what may be established, or re-established, about international law, legal actors, institutions and operations – in the process of this shift in knowledge practice. And it will touch, finally, on what might be at stake in these changing practices with regard to the CLGSC’s three, current thematic concerns: time and place; power and capital; aesthetics and materiality. More details can be found here

Filed under: Announcements and Events