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Home Articles posted by Marko Milanovic

Snippets on the UK and the ECHR

Published on May 18, 2016        Author: 

Some brief notices on the UK, the ECHR, the planned repeal of the UK’s Human Rights Act and its replacement with a British Bill of Rights that our non-UK readers in particular might find of interest: almost all is quiet on the Western front, but not quite. From today’s Queen’s Speech in Parliament we could only learn that the Government still plans to scrap the HRA and replace with the British Bill of Rights, but we still have no inkling about what exactly that would entail and when. Basically the whole matter is on hold at least while Britain ponders Brexit, and even then it is likely that the new Bill (after extensive consultations) will not make radical changes to the existing HRA framework, other than for appearances’ sake.

Cambridge’s Mark Elliott has more, as does Rightsinfo. Also at Rightsinfo, Adam Wagner and Rebecca Hacker have an excellent post with a bit of colourful statistics showing just how gentle Strasbourg has been to the UK in recent years – which demonstrates not only how much damage the UK has inflicted on the ECHR system over very little real-world intrusion in its affairs, i.e. mostly for petty domestic politics, but perhaps also how (regrettably? consciously?) responsive Strasbourg can be to some state-administered spanking.

Finally, readers might be interested in a new website/blog launched by the estimable Conor Gearty of the LSE, who has a forthcoming book with OUP on the relationship between Britain and Strasbourg, On Fantasy Island. Conor will blog with excerpts from the book, working his way through its main themes: the fantasies, the facts, and the future.

 

UK Investigatory Powers Tribunal Rules that Non-UK Residents Have No Right to Privacy under the ECHR

Published on May 18, 2016        Author: 

In another major development on the surveillance/privacy front, on Tuesday the UK specialized surveillance court, the Investigatory Powers Tribunal, ruled that persons not present within the United Kingdom are not within the jurisdiction of the UK in the sense of Article 1 of the European Convention on Human Rights, and accordingly do not have any of the rights under that Convention (para. 49 et seq). In other words, a person in say France or the United States subjected to surveillance by GCHQ does not have an ECHR right to privacy vis-a-vis the UK, which accordingly has no Convention claim to answer. This is I think the first time that a British court has expressly dealt with extraterritoriality in the surveillance context. The IPT’s reasoning essentially rests on a Bankovic analogy – if you are in say Serbia and the UK drops a bomb on you, the Strasbourg Court has said that you don’t have the right to life. How could you then have the right to privacy if all the UK did was to simply read your email while you were in Serbia?

I have extensively argued elsewhere why that analogy is wrong (as is Bankovic itself), so I won’t belabour that point further (see here and here). It was entirely predictable that the IPT would adopt this restrictive position, which is perfectly plausible under Strasbourg case law (even if fundamentally mistaken). The IPT was correct in ruling, however, that distinctions as to the Convention’s applicability can’t really be made on the basis of whether the person is present is some other Council of Europe state, or is outside the ECHR’s espace juridique altogether. Anyway, the issue of the Convention’s extraterritorial applicability to mass electronic surveillance abroad is one for Strasbourg to decide and (hopefully) fix, and it will have the opportunity to do so in these cases and others. What the Court will do is of course anyone’s guess, because its decision will inevitable have ripple effects on other scenarios, such as extraterritorial uses of lethal force, e.g. drone strikes.

I have also argued, however, that there is particular scenario in which the applicability of the Convention becomes more attractive (or less dangerous as a matter of policy) – when the surveillance actually takes place within the surveilling state’s territory, even if the affected individual is outside it. Imagine, for example, if the UK police searched my flat in Nottingham while I was visiting family in Serbia – surely I would have Article 8 rights, even though I would not be on UK territory when the search took place. Why then should I not have these rights if an email I send while I am in Serbia is routed through my university server in Nottingham and intercepted by GCHQ there? In both cases the intrusion into privacy happens on the UK’s territory, even if I am outside it. In fact, in its judgment the IPT briefly addresses this scenario, if all too briefly and less than convincingly, although I’m not sure that the point was extensively argued.

In any case, the main paragraphs on the jurisdiction issue are below the fold. The judgment also deals with the very important question of standing/victim status, finding that all but six of the 600+ claimants lacked locus standi even under a very low threshold of showing that they are ‘potentially at risk’ from surveillance measures (applying the European Court’s recent Zakharov judgment, para. 171).

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New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 

Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

 
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Eye in the Sky

Published on May 9, 2016        Author: 

Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones.  *MINOR SPOILERS FOLLOW*

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Understanding the ICTY’s Impact in the Former Yugoslavia

Published on April 11, 2016        Author: 

As a follow-up to the ICTY extravaganza we’ve had on the blog in the past few weeks, I wanted to post about two companion articles I recently put on SSRN that readers might find of interest. The first is ‘The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Post-Mortem’, and it is forthcoming in the American Journal of International Law; the second is ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences,’ and it will be published in the Georgetown Journal of International Law.

The AJIL piece looks at whether the ICTY managed to persuade target populations that the findings in its judgments are true. To answer that question, foundational for transitional justice processes, the article discusses the findings of a series of public opinion surveys in Serbia, Croatia, Bosnia (designed by the Belgrade Centre for Human Rights, sponsored by the OSCE and conducted by Ipsos – detailed charts, mostly in Serbo-Croatian but some in English, are available here) and Kosovo (sponsored by the UNDP and conducted by a local polling agency, here and here).

The detail and amount of data obtained through these surveys provide an unprecedented level of insight into the reception of factual determinations by international criminal tribunals by target audiences. The surveys show that denialism and revisionism are rampant in the former Yugoslavia. For example, twenty years on, barely one-fifth of the Bosnian Serb population believe that any crime (let alone genocide) happened in Srebrenica, while two-fifths say that they never even heard of any such crime. The acceptance levels for many other serious crimes are in the single digits. They also demonstrate a strong relationship between the respondents’ ethnicity, their perception of the ICTY’s bias against members of their own group, and their distrust in the ICTY and in its findings, which increases the more the ICTY challenges the group’s dominant internal narratives.

Survey findings

This is, for example, how divided realities look like in today’s Bosnia (BiH Muslim/Croat Federation results on top; Republika Srpska at the bottom) – note that these are some of the most serious crimes committed in the Bosnian conflict, all of them addressed in major ICTY cases:

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The Sorry Acquittal of Vojislav Seselj

Published on April 4, 2016        Author: 

Last week a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia acquitted Vojislav Seselj, an ultra-nationalist Serb politician, for crimes committed in Croatia, Bosnia and even Serbia itself. It did so by 2 votes to 1. Readers will already be familiar with the disaster that was the Seselj trial, which is now further compounded by the judicial fiasco that is the trial judgment. Fiasco is in fact the word used by the presiding French judge, Jean-Claude Antonetti, to describe the case in the conclusion of his profoundly dilettantish 500-page concurring opinion. This concurrence is a perfect sequel to his equally unreadable 600-page doozy in the Prlic case, and he uses it to blame everybody but himself for everything that went wrong in the case which is, well, everything. The judgment (in French) is here, as is the dissenting opinion of Judge Lattanzi (‘dissenting’ is not a strong enough word, as she herself says); the summaries of the judgment and the dissent in English are here and here.

Corax, Danas 4.4.2016.

There are so many problems with this judgment that it’s hard to know where to start, so let me paint you the big picture. The main issue is not with the acquittal, which may or may not be the appropriate result, but with how that result was reached. The entire judgment is a reductionist dismissal of the case presented by the prosecution, which is always taken as ungenerously as is humanly possible, while at the same time castigating the prosecution (without any hint of self-irony) for presenting a reductionist version of the complex reality of the wars of the dissolution of the former Yugoslavia.

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ICTY Convicts Radovan Karadzic

Published on March 25, 2016        Author: 

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

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New ICRC Commentary to the First Geneva Convention

Published on March 22, 2016        Author: 

The International Committee of the Red Cross has launched the first batch of its  new commentary to the Geneva Conventions, following up on the authoritative, but dated, commentaries edited by Jean Pictet. The commentary to GC I is available here; the commentaries are published electronically, side by side with the prior Pictet version, and are comprehensive, accessible and easy to use. An ICRC press release is available here. The commentaries to the other three Conventions will follow in due course, but a lot of the foundational work on the common articles will of course be the same across all of the treaties. All in all this is a major endeavour by the ICRC (which more academic commentary complements nicely), and I hope it will be prove to be as successful as the Pictet commentary and the customary law study.

 
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ICTY Karadzic and Seselj Trial Judgments Due

Published on March 21, 2016        Author: 

This International Criminal Tribunal for the Former Yugoslavia is due to pronounce its trial judgments in two important cases, against Radovan Karadzic, the former political leader of the Bosnian Serbs, on Thursday 24 March, and against Vojislav Seselj, the ultra-nationalist leader of the Serbian Radical Party, on 31 March. The Karadzic case is of course more important by far than the Seselj one, with (since Milosevic’s passing) Karadzic being the highest-ranked defendant with respect to atrocities committed during the Bosnian war. For our earlier coverage of the two cases, see here and here.

As I’ve recently explained elsewhere, the outcome of the Karadzic case is hardly in doubt – he will be convicted. The only question is what exactly for. He will also get a very long sentence, which will because of his age be tantamount to life imprisonment even if he doesn’t get that formally. Karadzic’s legal advisor, the excellent Peter Robinson (whom we’ve had in Nottingham last week for a seminar), is quite open about getting ready for an appeal (see Guardian report here). There is, in other words, not all that much suspense about what’s going to happen come Thursday, and the political reactions to the conviction in the former Yugoslavia are also equally predictable.

That said, what are the points to watch for in the judgment which may be of some genuine novelty? First, unlike with the crime base, which was already clarified in numerous ICTY judgments, it will be interesting to see what the Trial Chamber finds with respect to Karadzic’s individual guilt – what did he exactly know and when, what did he intend, and what specific joint criminal enterprise (JCE) was he a part of? This will be of particular relevance to the 1995 Srebrenica genocide – Karadzic certainly didn’t do anything to punish the perpetrators after the fact, but it’s important to see (or what the prosecution was able to prove about) what he knew  before the genocide started and while it was underway.

Second, Karadzic is charged with genocide not only in Srebrenica, but also in several other Bosnian municipalities, as is the Bosnian Serb general, Ratko Mladic, whose trial is still underway. In other cases the ICTY could find genocide ‘only’ in Srebrenica, with atrocities elsewhere being qualified as war crimes or crimes against humanity. This Trial Chamber has actually already found that the prosecution wasn’t able to meet the burden of proving genocide outside Srebrenica after a rule 98bis ‘no case to answer’ motion upon the conclusion of the prosecution’s case. This decision was later reversed on appeal, but it seems unlikely that the same Trial Chamber will find genocide to have now been proven to the higher beyond a reasonable doubt standard, except in Srebrenica. The Chamber’s finding will however be of great political relevance in the region, because of the particular corrosive potency of the word genocide and its impact on the competitive victimhood of the various groups, and will also be of relevance for the Mladic case. While I therefore expect acquittal for genocide in non-Srebrenica municipalities, it remains to be seen whether that will survive an appeal before the Mechanism, where the whole thing will be revisited.

Finally, as for Seselj the outcome there is far less certain, but expecting a conviction that would cover the time he already spent in detention would not be unreasonable. That case is more notable for its disastrous mismanagement and the consequent public relations nightmare than for anything else. Seselj is now in Serbia and has refused to go back to the Hague for the pronouncement of the judgment. The Serbian authorities (led by his erstwhile party comrades) similarly refused (if with a bit more diplomatic obfuscation) to arrest him and send him to the ICTY, because of the damage this could cause them in an election year. Three of Seselj’s advisers have been charged with contempt by the ICTY and they too have not been sent to the Hague, for the same basic reason. The Serbian authorities are essentially exploiting the ICTY’s impending closure and betting (probably correctly) that this lack of cooperation will not cause them significant political problems internationally.

An interesting couple of weeks ahead for the Tribunal – we will have more coverage as the events unfold.

 
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ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)

Published on December 15, 2015        Author: 

Today the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia quashed the acquittal at trial of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police during the Milosevic regime, for crimes committed in Bosnia and Croatia. This is a big deal – S&S is the only remaining case tying the leadership of Serbia with crimes committed by Bosnian and Croatian Serbs. The trial judgment (itself delivered by a majority) was quashed on two grounds: that the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, in particular because it could not analyse their mens rea without determining the actus reus of the JCE, and because it committed an error of law regarding the actus reus of aiding and abetting liability. (Appeals judgment here, press release and summary here.)

This latter point is one that will be familiar to our readers, as it is the (final?) nail in the coffin for the whole specific direction saga that we extensively covered on the blog (see here and here). As I explained in my earlier post, the ICTY Appeals Chamber went through an episode of self-fragmentation, with the Sainovic AC overruling the Perisic AC’s finding that specific direction was an element of the actus reus of aiding and abetting. As I also explained in that post, the outcome of S&S with respect to the specific direction point would essentially be determined by the composition of the Appeals Chamber in that case. That’s exactly what happened, with the S&S AC upholding the Sainovic rejection of specific direction by 3 votes to 2. The three votes in the majority were all judges who formed the Sainovic AC majority (Pocar, Liu, Ramaroson), while of the two judges in dissent one (Agius) was in the Perisic majority and the other (Afande) was not involved in the prior cases, and was hence the only unknown quantity.

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