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Home Archive for category "EJIL Analysis"

The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

Published on December 5, 2016        Author: 

On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).

A Legal Bombshell

The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).

Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…

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The Draft Articles on “The Protection of Persons in the Event of Disasters”: Towards a Flagship Treaty?

Published on December 2, 2016        Author: 

The debate held on 24 – 26 October within the United Nations General Assembly (UNGA) Sixth Committee concluded an intensive year for the International Law Commission (ILC) topic “The Protection of Persons in the Event of Disasters”. It followed the adoption of the related 18 Draft Articles (DAs) on their second reading, and of the Commentary (here), on the basis of the eighth report submitted by the Special Rapporteur Eduardo Valencia-Ospina and comments received on the 21 draft articles adopted in 2014.  These DAs, which have already attracted attention (e.g. herehere), will be addressed in this post, which will also take into account the proposal made by the ILC “to recommend to the General Assembly the elaboration of a convention on the basis of the draft articles” (2016 Report, para. 46) thus diverging from its trend of favoring ‘soft’ final forms for topics under exam (here). Such possibility might concretize in the near future, taking into account the draft UNGA resolution requesting Governments to submit “comments concerning the recommendation by the Commission” and to include this item in the 2018 UNGA’s agenda.

The structure of the Draft Articles

The possibility of developing a universal flagship treaty would represent a significant novelty in the area of disaster law, which is currently characterized by a fragmented legal framework. In the ‘80s UN attempts to develop a similar convention were unable to achieve consensus, and practice has continued to evolve through universal treaties only addressing specific types of disasters or forms of assistance, regional instruments with different characters in terms of efficacy and structure (here and here), an incoherent network of bilateral treaties (here), and a vast array of soft-law instruments scarcely able to influence stakeholders.

Against this multifaceted background, the Draft Articles attempt to provide a legal systematization of the main issues, their purpose being “to facilitate the adequate and effective response to disasters, and reduction of the risk of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights” (Draft Article 2). In a nutshell, this provision encompasses some of the main topics addressed, and challenges faced, in the law-making process due to diverging perspectives. Read the rest of this entry…

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Filed under: Disaster Law, EJIL Analysis
 

Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

Published on November 29, 2016        Author: 

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…

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Chatham House Paper on Aiding and Assisting by States

Published on November 28, 2016        Author: 

When states engage in armed conflict today, it is often the case that they do so with some support from other states. The same is true with respect to counter-terrorism efforts. That support may come in many forms: from being part of a coalition that engages in actual fighting; to logistical support that enables the fighting to take place; to supply of weapons; to intelligence sharing; or capacity building in one shape or another. One only has to look at the network of state assistance to other states on all sides of the conflict in Syria, and also in Yemen. A couple of weeks ago Chatham House published a paper –  “Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism” – that I would like to commend to readers. The paper, authored by Harriet Moynihan who is Associate Fellow in the International Law Programme at Chatham House, seeks to set out:

“a clear statement of the law on aiding and assisting as it stands, with particular regard to its application in situations of armed conflict and counterterrorism. The paper also aims to provide guidance to governments on best practice in their cooperation in armed conflict and counterrorism, taking into account the legal and policy issues raised by the various rules in this area.” (para. 6)

A central question addressed in the paper is: when will a state that provides assistance that is used by another state to carry out actions that are wrongful in international law, responsible for assisting that wrongful act? The paper addresses this issue by first considering (in Chapter 2) the general rule that is established with regarding to aiding and assisting in Article 16 of the International Law Commission’s Articles on the Responsibility of States 2001. Chapter 3 then pays some attention to more specific rules of international law that deal with aiding and abetting, eg Common Article 1 of the 1949 Geneva Conventions, some treaties dealing with weapons transfers and some applicable rules of international humanitarian law.

Much of the analysis in Chapter 2 deals with the tricky question of the mental element that must be fulfilled in order to establish a breach of Article 16 of the ILC Articles on State Responsibility. Read the rest of this entry…

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Africa and the ICC: Shattered Taboos, and the Status Quo

Published on November 23, 2016        Author: 

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…

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Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

Published on November 21, 2016        Author: 

On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Read the rest of this entry…

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The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 

Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts

Published on November 17, 2016        Author: 

Well it’s been a dramatic and, for many of us, soul searching week since last Tuesday’s presidential election in the U.S. resulting in Donald Trump being elected the next U.S. president. I’ll hold back on political editorializing in this space. We all have our views and there are other fora in which to express them.

Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail: “My number one priority is to dismantle the disastrous deal with Iran.”  I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the Joint Comprehensive Plan of Action (JCPOA) that President Obama and Secretary of State John Kerry have been.

Of course this all comes as a shock to most of us who work in the nuclear nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal.  And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.

But now we are faced with a new reality and a lot of uncertainty about specifically how President Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.

I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:

Read the rest of this entry…

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What is the Future of the SOGI Mandate and What Does it Mean for the UN Human Rights Council?

Last June, human rights defenders the world over celebrated the historic step taken by the Human Rights Council (HRC) to create a UN Special Procedures mandate on sexual orientation and gender identity. It had taken years of advocacy by the LGBTI and wider human rights community, and careful manoeuvering within the UN system to attain this belated but historic victory. For many years, LGBTI issues were addressed through reports and resolutions on extra-judicial and arbitrary killings and on violence against women, as well as through joint statements by UN member States.  However, since the ground-breaking Toonen vs Australia decision of the Human Rights Committee in 1994, the UN system has gradually improved with respect to the recognition and the level of attention it has paid to the particular threats faced by the LGTBI community. In relation to the HRC specifically, there has been a gradual build-up to the appointment, from a subject specific resolution in 2011 (17/19), which commissioned a special report  (HRC/19/41) by the Office of the High Commissioner for Human Rights (OHCHR), to a panel discussion in March 2012, to a follow-up resolution in 2014, and an updated report in 2015.

Human Rights Council resolution 32/2 which created the SOGI mandate was not universally endorsed by States; indeed, it was adopted by a vote of 23-18 with 6 abstentions, a noticeably high number of opposing votes in the light of general voting patterns, even among similarly contentious mandates, such as the ones on unilateral coercive measures (vote of 31 in favour, 14 against and 2 abstentions); international solidarity (33 in favour, 12 against, 1 abstention); and the promotion of a democratic and equitable international order (29 to 14, with 4 abstentions). Vitit Muntarbhorn, the expert charged with carrying out the mandate, was appointed in September in line with the rules of procedure of the HRC. Although reports of the Council are subject to endorsement by the General Assembly (GA), in practice this is generally a formality. As is typical following appointment by the Council, Mr. Muntarbhorn has already begun working on this long overdue mandate.

However, in an unprecedented move, the work of the mandate is now being threatened by the African Group of UN Member States, Read the rest of this entry…

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What’s the Point of ‘Naming Names’ in International Inquiry? Counseling Caution in the Turn Towards Individual Responsibility

Published on November 11, 2016        Author: 

Introduction

In recent years international commissions of inquiry (‘commissions’) have been drawn into the realm of individual responsibility under international law. This is vividly illustrated by the Human Rights Council’s recent request that the International Commission of Inquiry on Syria investigate events in Aleppo to:

“identify all those for whom there are reasonable grounds to believe that they are responsible for alleged violations and abuses of international human rights law, to support efforts to ensure that perpetrators… are held accountable”.

Similar mandates have been awarded to several other UN inquiries, including on Darfur, Guinea, Libya and the Central African Republic. In practice, most commissions identified suspected individuals confidentially. Exceptionally, the commissions on Guinea and Timor-Leste published names in their public reports.

Making findings of (alleged) individual responsibility is a relatively novel development in the fact-finding context. It reflects an idea that human rights are best protected when individuals are held to account for their acts. But it stands in a certain tension to the quasi/non-judicial nature of these bodies. Similar issues have been considered in relation to truth commissions. Yet the inquiry context poses different challenges. Commissions are not intended to replace criminal trials or function as truth commissions ‘lite’; rather, they may recommend such accountability mechanisms as follow-up. Commissions also face very practical challenges in terms of time pressures, resource limitations and, increasingly, a lack of access to the territories of concerned states, all of which can impede their investigations.

The move towards the identification of individuals is part of a certain trend towards the criminalisation of international inquiry. In this post, we would like to investigate to what extent this is helpful. We  discuss some normative and methodological questions arising from individualised accountability and proposes some possible ways forward. Read the rest of this entry…

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