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Home Articles posted by Marko Milanovic (Page 4)

Academic Spam [UPDATED]

Published on October 11, 2013        Author: 

Handling the daily flood of emails is painful enough. But within this flood there is a particular subset that I have over the years found increasingly more annoying – for lack of a better term, I’ll call it academic spam. I now get several such messages weekly, sometimes even daily. It comes in a number of varieties, with different degrees of sophistication in how the emails are drafted and presented. First you have the invitations to conferences/events of absurdly general scope, or at least lack of relevance to my own field, i.e. there is actually no good reason to invite me (e.g. conference on Issues in Higher Education, Language, Literature and Linguistics, Social Science and Managment, etc.). Most of these conferences involve the open access publication of the submitted papers, but from what I gather little or nothing by way of peer review or editorial standards. Then there are the invitations to submit papers to say a Journal of X, where the X again normally has little bearing on my field, and where I’ve rarely if ever heard of the journal or of the people (supposedly) sitting on their boards etc.

Having done some pain-induced research on this, I gather that the business model of these spammers, most of whom seem to operate from India, China, and Eastern Europe, is relatively simple. They collect emails, names, affiliations etc by trawling existing scholarly papers, e.g. those posted on SSRN, then sending out copy/pasted invitations (the better ones are sometimes more personalized). They charge fees for their conferences (essentially you pay to be a panelist and that’s that, no questions asked) and for the open access publications (note the perils of the recent mainstreaming of the open access ‘gold option’ in the UK). They do not operate a scam strictly speaking – there probably is a conference, and there is a publication. It’s just that they have zero scientific merit. One can after all hardly complain of being cheated after paying their fees, as the nature of the enterprise is obvious.

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Filed under: EJIL Analysis
 

A Few Thoughts on Resolution 2118 (2013)

Published on October 1, 2013        Author: 

The official final text of Security Council resolution 2118 (2013) on Syria is now available, as is the full proces-verbal of the Council’s discussion after the adoption of the resolution (text available here; ODS search strangely still showing it as under embargo; S/PV.7038). The main points of the resolution have of course received much attention from the press, and there is also commentary by John Bellinger on Lawfare and Ryan Goodman on Just Security, here and here). There are a couple of features of the resolution that I find particularly interesting.

First, there’s the fact that in its last preambular paragraph the Council unanimously endorsed the view that all Council decisions, and not just Chapter VII resolutions, are legally binding. This was of course due to careful diplomacy between the US and Russia, with the former wanting a legally binding instrument and the latter refusing to agree to a Chapter VII resolution. The compromise between the two is reflected in the preambular paragraph when the Council is ‘underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions’ and then in a number of operative paragraphs which use the verb ‘decides’ to impose legally binding obligations.

In other words, while decisions under Chapter VII are legally binding (even though resolutions under this chapter will frequently include non-binding recommendations as well), they are not the only decisions with binding force. This is I think the first time that the Council so openly adopted this view, which was endorsed before it by the ICJ in the 1971 Namibia advisory opinion. Doctrinally of course the issue was not settled and continued to be debated; for an overview see John Bellinger’s post as well as this excellent report linked to by Ryan. But now the matter does seem to be finally settled, with the ICJ’s interpretation of the Charter garnering unanimous support of the Council.

The PV of the meeting, at which many delegations stressed the legally binding nature of the resolution, only supports the resolution’s text. I think Ryan is wrong when he argues that Russian Foreign Minister Lavrov ‘took a swing at the legal strength of the Resolution’ when he stated that it was not passed under Chapter VII. As I see it, Russia is in full agreement with the US and the UK that the resolution did create binding obligations – this is at least implicit in his following statement on p. 4 of the PV:

Particular responsibility lies with those who back and sponsor the opposition; they have to ensure that chemical weapons do not fall into the hands of extremists. We draw attention to the fact that the resolution contains requirements set by the Security Council that apply to all countries, especially Syria’s neighbours. They must report to the Council any attempts by non-State actors to obtain chemical weapons. It would be even more unacceptable for them to support such attempts. All similar cases will be immediately considered by the Security Council with the objective of taking the necessary measures. (emphasis mine)
What Chapter VII brings to the table is not necessarily the binding nature of the measures enacted, but telling us what the measures can substantively be under the Charter, e.g. the authorization to use force. And this is what the Russians are (rightly) concerned about; they don’t want there to be any plausible argument that the Council has implicitly authorized force, and this is what they achieved. But that does not mean that they do not consider the decisions made within the resolution, e.g. for Syria not to use chemical weapons, to cooperate with the OPCW, etc., to be non-legally binding.

The second striking thing about the resolution is its determination in the first operative paragraph ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security.’ In other words, any use of chemical weapons by anyone anywhere is ipso facto a threat of international peace and security, and justifies the Council’s intervention. The Council has previously made such determinations only rarely, as e.g. in resolution 1368 (2001) in which it found that any act of international terrorism was a threat to international peace and security.

Also of note is op. para. 19, in which the Council ‘demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately.’ Note how the demand is addressed to non-state actors directly and is very precise in scope; this of course raises the issue whether the Council can create legally binding obligations for non-state actors, and whether it has done so in this particular instance (cf. the ICJ’s Kosovo advisory opinion). The Council buttressed this ‘demand’ (but not a ‘decision’?) by deciding in op. para. 20 that ‘all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic.’

Finally, the Council’s decision in op. para. 21 to impose Chapter VII measures in case of non-compliance is also I think a novelty – although it clearly wouldn’t prevent a veto regarding the adoption of a further resolution, it would render that veto even more politically suspect.

 

SCSL Appeals Chamber Affirms Charles Taylor’s Conviction

Published on September 26, 2013        Author: 

Today the Appeals Chamber of the Special Court for Sierra Leone unanimously upheld the conviction of Charles Taylor, the former President of Liberia, and affirmed the Trial Chamber’s sentence of 50 years imprisonment. The judgment is available here; a short press release here. The judgment is very long and will take some time to digest. Symbolically and politically it is of course of immense importance.

Legally, however, the most interesting aspect of the judgment is the SCSL’s refusal to follow the ICTY Appeals Chamber’s holding in Perisic that the actus reus of aiding and abetting liability requires the assistance to be ‘specifically directed’ towards the commission of crimes. Readers will recall that Perisic was acquitted despite knowing that the aid he was providing to the Bosnian Serbs will help them in the commission of crimes against international law, since the ICTY Appeals Chamber found that the aid was given to the war effort as a whole, rather than to the commission of the crimes as such. For more background, see my previous post on Perisic and James Stewart’s very important post on specific direction.

In my view, this is a very welcome development, and the specific direction standard was rightly discarded. Note, however, how this creates a direct conflict of jurisprudence between two ad hoc international criminal tribunals. The fragmentation of international criminal law is well and truly upon us. Whether this will induce the ICTY Appeals Chamber to change its mind on the matter, and which side will be taken by other international tribunals dealing with similar factual patterns, remains to be seen.

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Aerial Herbicide Spraying Case Dead in the Air

Published on September 17, 2013        Author: 

The ICJ has just announced the removal from its list of the Aerial Herbicide Spraying (Ecuador v. Colombia) case (press release; order), which was consensually discontinued as the parties reached an agreement resolving their differences. The main issue in the case was that Colombia’s aerial hearbicide spraying of coca leaf plantations in Colombia (with the ample help of the US in the ‘war on drugs’) harmed the people and environment of Ecuador as in some cases the herbicide drifted accross the border. The 9 September 2013 Agreement:

establishes, inter alia, an exclusion zone, in which Colombia will not conduct aerial spraying operations, creates a Joint Commission to ensure that spraying operations outside that zone have not caused herbicides to drift into Ecuador and, so long as they have not, provides a mechanism for the gradual reduction in the width of the said zone; … sets out operational parameters for Colombia’s spraying programme, records the agreement of the two Governments to ongoing exchanges of information in that regard, and establishes a dispute settlement mechanism.

The case before the ICJ was well advanced, with the written pleadings already completed. While it is of course always a good thing that states are able to resolve their disputes peacefully, it’s to an extent a pity that the Court was not given the opportunity to decide this case, which could have been very important with regard to questions of transboundary harm. It even had one particular issue near and dear to my heart, as Ecuador alleged that Colombia was violating the human rights of Ecuadorians living accross the border, thus raising the issue of the extraterritorial application of the relevant human rights treaties (yet the Court was probably not going to rule on it anyway). Of note is also how the Court’s docket has recently shrunk rather signficantly, partly due to more (and welcome) efficiency and mostly due to a lower number of incoming cases.

UPDATE: But it seems the Court is getting a follow-up to the Nicaragua v. Colombia delimitation case. Lose some, win some.

 

Convicted CIA Agent Seeks Pardon from Italian President

Published on September 13, 2013        Author: 

Mr Robert Seldon Lady, one of the CIA agents convicted in absentia in Italy for their involvement in the abduction/rendition of Abu Omar, has petitioned the President of Italy for pardon. The letter is available here, and is a fascinating read (not least because the guy’s (real?) last name is Lady, his middle name reminds me of one of my favourite sci-fi characters, and we can actually see a copy of a CIA agent’s passport). He supports his request with a number of arguments: that he could not properly defend himself as that would require the unauthorized disclosure of classified information; that he was acting under orders and with legal advice that his actions were lawful; and perhaps most interestingly that Italy itself is invoking before Indian courts the functional immunity of its agents who killed a couple of Indian fishermen, essentially asking Italy to apply the same theory on immunity at home that it wishes to apply abroad.

Indeed, earlier this year the Italian president had pardoned US Air Force Colonel Joseph Romano, the only non-CIA employee who was convicted in the Abu Omar affair (BBC News article). From what I can tell the President’s official decision to pardon Romano is not available online, but the presidency press release is available here in Italian. The President invoked inter alia the change in US policy by the Obama administration, the purpose for which Romano was acting in the context of the 9/11 attacks, and the changed normative situation in Italy in respect of immunity regarding crimes committed on Italian soil by NATO troops. We’ll see whether the President will treat Mr Lady in the same way, but if he does it would be hard to see why any of the other 21 CIA agents should not receive pardons as well.

For more background and our earlier coverage, see in particular this post by Francesco Messineo and his JICJ article cited therein, as well as these posts by Dapo on the immunity of the CIA agents, and the posts on the Indian affair by Douglas Guilfoyle and Hari Sankar.

 

Breaking: UK Government Discloses Legal Rationale for Syria Intervention

Published on August 29, 2013        Author: 

In more breaking news today, the UK government officially endorsed humanitarian intervention as a legal basis for using force against Syria. The full (and quite brief) statement can be found here, and is also reproduced below the fold. While it is not supported by a detailed legal analysis, it sets out three legal conditions for the use of force in a humanitarian intervention without UN Security Council authorization, and finds that Syria fulfils these criteria on the facts. This is as formal an expression of opinio juris by the UK as is possible, and probably the most official endorsement to date of humanitarian intervention (note also the absence of any reference to R2P).

I fully ascribe to Dapo’s analysis from his post yesterday, and have little to add in that regard: humanitarian intervention is not permissible in international law as it stands today, on 29 August 2013. The key issue for me here is how the UK is essentially trying to change international law by asserting a position and waiting to see how other players will react and possibly validate its view; the conceptual problems that Dapo points to aside, this is essentially how customary law works. I’d also refer readers to an excellent 1994 piece by James Crawford and Thomas Viles called ‘International Law on a Given Day’, on custom as ex-post facto rationalization, which is excerpted in part here.

UPDATE 1: The language of the UK guidance with regard to the three criteria reproduces almost verbatim an October 1998 FCO memo in respect of the impending intervention against the FRY, which is itself quoted in this article by Adam Roberts at p. 106.  One key difference between the two memos is that the 1998 uses UNSC resolution 1199 and UN reports as convincing evidence of an impending humanitarian catastrophe, and this is missing with respect to Syria.

UPDATE 2: Dapo and Philippe Sands discuss the problems with the UK government’s rationale in the Guardian here.

The UK statement in full:

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Breaking: Judge Harhoff Disqualified from the Seselj Case

Published on August 28, 2013        Author: 

I’ve just been informed by a reliable source that the special ICTY chamber appointed to hear Seselj’s motion to recuse Judge Harhoff from his case for appearance of bias has accepted the motion. (This is of course one more chapter in the continuing Meron/Harhoff saga). That means that the Seselj case is probably going bust, as no stand-by judge was sitting in who could replace Harhoff. More to follow, once the decision is made public.

UPDATE: The decision is now officially available here. The Chamber split 2 to 1, Judges Moloto and Hall in favour, Judge Liu vigorously dissenting, finding that there was an appearance of bias. Money quote:

13. By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favour of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal. In the circumstances, the Majority considers that the Letter, when read as a whole, rebuts the presumption of impartiality. … 14. The Majority, Judge Liu dissenting, finds that in the Letter Judge Harhoff has demonstrated a bias in favour of conviction such that a reasonable observer properly informed would reasonably apprehend bias.

We’ll see what this means for the Seselj case and possibly other cases before the ICTY in which Judge Harhoff was involved. Dov Jacobs has more commentary here and here. For my part, the decision does seem to be based on a rather cursory and acontextual assessement of the Harhoff letter, as Judge Liu points out in his dissent, and is moreover not clear as to whether Harhoff is being disqualified for apparent or actual bias. And to the extent that Judge Harhoff had any difficulties in applying the current jurisprudence of the Tribunal (assuming that the jurisprudence he takes issue with would actually be central to the Seselj case), one assumes that any errors of law he made could be corrected on appeal.

As for Seselj, the trial itself has been badly mismanaged almost from the very start. Seselj himself surrendered to the ICTY some 10 years ago, on the eve of the assassination of the first democratically elected prime minister of Serbia, Zoran Djindjic, by a cabal of secret police, mafia and war criminal types, of which Seselj probably had some advance knowledge. From the very get go he set out to ‘destroy’ the Tribunal, inter alia by representing himself and being disruptive to the absolute maximum. When the Trial Chamber originally assigned to his case decided to appoint counsel and deny him self-representation, Seselj went on a hunger strike. Fearing the potential fallout from Seselj dying in custody after the death of Milosevic, the Appeals Chamber made an essentially political decision to reverse the appointment of counsel and change the Trial Chamber that would hear the case, adopting an absolutist position on self-representation that is certainly not warranted by human rights considerations (note that had Seselj been tried in Serbia itself, he would have to have been represented by counsel, as is the case in many other European jurisdictions in serious cases).

The presiding judge of the newly assigned Trial Chamber went on to demonstrate little evidence of competence, with Seselj more or less doing as he pleased in the courtroom, despite several prosecutions and convictions for contempt of Tribunal. The trial closed in March 2012, and the issuance of the judgment was scheduled for 30 October 2013. In other words, it took a year and a half to draft the trial judgment in what is on any objective account a mid-range, not particularly demanding case. And now that trial judgment might never be issued because of the whole Harhoff affair – I at least see no way of salvaging the trial that would not be unfair towards Seselj. Even if Seselj had been convicted, it is likely that the sentence he would get would be absorbed by the 10 years he spent in detention on remand. In any event Seselj will soon be returning to Belgrade in triumph. He may not have ‘destroyed’ the Tribunal, but he was certainly happy to watch it destroy itself.

 

Announcement: Workshop at Michigan

Published on July 13, 2013        Author: 

On November 14–15, 2013, the University of Michigan Law School will host the Second Annual ASIL–ESIL–Rechtskulturen Workshop on International Legal Theory. It is a collaboration between Michigan Law School, the Interest Groups on International Legal Theory of the American and European Societies of International Law, and the Rechtskulturen Program, an initiative of the Wissenschaftskolleg zu Berlin at Humboldt University Law School. The principal aim of this collaboration is to facilitate frank discussion among legal scholars from diverse backgrounds and perspectives on the fundamental theoretical questions that confront the discipline today. Details here.

Filed under: Announcements and Events
 
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ICTY Appeals Chamber Reinstates Genocide Charges in the Karadzic Case

Published on July 11, 2013        Author: 

Just a couple of minutes ago the ICTY Appeals Chamber sitting in the Karadzic case reversed the Rule 98 bis judgment of acquittal rendered by the Trial Chamber last year (see my post on that decision for more background; the Appeals Chamber’s decision is not yet available at the time of writing, but a summary can be found here). The Trial Chamber had earlier decided that on the evidence presented by the prosecution, taken at its highest, no reasonable trier of fact could have found Karadzic guilty beyond a reasonable doubt of genocide committed by Bosnian Serb forces against Bosnian Muslims and/or Croats in a number of Bosnian municipalities in 1992, the bloodiest year of the war. In essence, the Trial Chamber had decided that ‘only’ the 1995 Srebrenica massacre could be legally qualified as genocide, and Karadzic’s trial proceeded on that basis.

The Appeals Chamber now ruled that the Trial Chamber erred in fact when it made its findings with regard to the actus reus and mens rea of genocide in the municipalities other than Srebrenica. In particular, the Trial Chamber failed to take at its highest the evidence presented by the prosecution with regard to the existence of genocide intent, which it had to do when deciding on a Rule 98 bis, ‘no case to answer’ motion for acquittal. Accordingly, the Appeals Chamber reinstated the genocide charge for the municipalities and remanded further proceedings to the Trial Chamber, which will now have to try Karadzic for genocide beyond Srebrenica. (Appropriately enough, the judgment was rendered on the 18th anniversary of the start of the Srebrenica genocide; for the avoidance of doubt, I myself see no moral distinction between genocide and ‘mere’ crimes against humanity, and Karadzic would have been no less the villain even if his acquittal was affirmed, but of course politically the G-word is a whole different story.)

The Appeals Chamber’s decision has a number of implications. First, most obviously, there will now need to be some reconfiguring of the Karadzic trial proceedings. Second, one can now foreshadow the fate of a possible Rule 98 bis motion in the ongoing Mladic case, which contains similar charges. Third, more importantly, it remains very unlikely, in my view, that in its final judgment the Trial Chamber will actually convict Karadzic for genocide in the municipalities – the standard for conviction is of course much higher than for rejecting a Rule 98 bis motion, the prosecution’s evidence need not be taken at its highest, and the same trial judges who previously said that no reasonable trier of fact could convict Karadzic are now hardly going to say that he is guilty beyond a reasonable doubt.

Fourth, consequently, despite today’s ruling it is also unlikely that an eventual acquittal will be reversed on the facts by the Appeals Chamber, because of the deference that the Trial Chamber will be due on its own findings of fact. Fifth, today’s judgment will receive a lot of political play in the region, especially in Bosnia. Finally, the whole thing may have repercussions on a possible Bosnian request for revision of the ICJ’s 2007 Bosnian Genocide judgment, which found genocide ‘only’ in Srebrenica. As explained in my previous post, I don’t think such a request would either be wise or likely to succeed, but today’s judgment leaves the doors open, at least for the time being.

 

 
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UK Supreme Court Decides Smith (No. 2) v. The Ministry of Defence

Published on June 24, 2013        Author: 

Last week the UK Supreme Court delivered its judgment in Smith (No. 2) v. The Ministy of Defence (judgment; BBC News report). This is a follow-up to the Smith (No. 1) case decided three years ago, with a different set of plaintiffs, but on the same issue – whether and how the European Convention on Human Rights applies extraterritorially to protect British troops abroad, specifically when British troops operate in areas not under UK control. In Smith No. 1, the Supreme Court, basing itself on Bankovic and the House of Lords Al-Skeini judgment, found that UK soldiers were not within UK jurisdiction for Article 1 ECHR purposes when they operated in areas outside UK control. A similar case, Pritchard, is currently pending before the European Court; for more background, see my case law update from last month. These cases are essentially Al-Skeini in reverse, since they concern the human rights of soldiers vis-a-vis their own government, rather than the rights of other persons that these soldiers affect through their own conduct.

The Smith No. 2 case concerned two sets of claims: one dealing with the alleged failure of UK authorities to properly equip their Challenger tanks with targeting equipment that would have allowed them to avoid a friendly fire incident, and the other dealing with various decisions of the UK authorities that allowed British soldiers in Iraq to use Snatch Land Rovers on patrol, these vehicles providing little or no protection from improvised explosive devices. The first set of claims was brought entirely under the common law, and I will not deal with it here; the second was partly based on the Article 2 ECHR substantive positive obligations of the UK to secure the right to life of its soldiers in the field.

In light of the European Court’s Al-Skeini judgment, the Supreme Court unanimously reversed its ruling in Smith No. 1, finding that the applicants were within the UK’s jurisdiction and that accordingly the ECHR applied, and by 4 votes to 3 allowed the claims to proceed to trial. The judgment is remarkable for a number of reasons.

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