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Home Archive for category "EJIL Analysis"

The ICC and Extrajudicial Executions in the Philippines

Published on August 30, 2016        Author: 

Below are two possible exam questions for the students and cognoscenti of international criminal law with regard to the possible involvement of the International Criminal Court in the ongoing campaign of state-sanctioned extrajudicial killings in the Philippines, a manifest violation of the right to life under customary international law and Article 6 ICCPR that has so far claimed almost 2,000 lives with no sign of abating (see, e.g, here and here). I would just note, by way of preface, that we have devoted a lot of attention on the blog to the recent arbitral award on the South China Sea dispute, but are yet to comment on the sheer irony of a state claiming the protection of international law while simultaneously proceeding to violate that law so thoroughly and so tragically – I imagine because the irony is so obvious, so depressing, and so familiar. We shall see whether a significant cost will be exacted internationally from the Duterte regime for its violation of the most fundamental of human rights, but I’m not holding my breath.

In the meantime, note that the Philippines have been a party of the Rome Statute since 2011 and consider – if you were the ICC Prosecutor, what would you do now? Should you intervene, how, to what benefit and at what cost? Then ponder these two little exam questions:

  1. “Despite plausible evidence that 2,000 individuals have been killed in the Philippines with the support of the government, these killings do not satisfy the ‘widespread or systematic attack directed against any civilian population’ chapeau requirement for crimes against humanity under Article 7 of the Rome Statute. In the absence of an armed conflict they equally cannot constitute war crimes, even if the government rhetorically claims to be fighting a ‘war against drugs.’ Accordingly, the ICC is without jurisdiction with respect to this situation, no matter how tragic.” Discuss.
  2. “Even if the substantive elements of crimes against humanity or war crimes were met, President Duterte could not be qualified as their ‘indirect co-perpetrator.’ Shame – because we totally could have nabbed him under the ICTY/R doctrine of joint criminal enterprise!” Discuss.
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Unpacking the Complexities of Backlash and Identifying its Unintended Consequences

Published on August 25, 2016        Author: 

References to “backlash” are becoming increasingly ubiquitous in international law scholarship (see for example this recent EJIL article and accompanying EJIL:Talk! Discussion). Few have, however, sought to define or unpack the complexities of backlash. In this post, we draw upon our chapter in a forthcoming book titled The Judicialization of International Law – A Mixed Blessing? (Oxford University Press, 2017). We seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.

Defining Backlash

The notion of backlash has seldom been defined, instead being used as an umbrella term to capture a range of forms of critique and contestation. These include State decisions to review, not renew, terminate, or withdraw from existing treaties; refusals to negotiate or sign investment treaties; and changes in the approaches of States to the negotiation of new treaties. There are also forms of “backlash” arising from civil society, non-governmental organizations, and academia in the form of protests, comments in public consultation processes, increased reporting, and academic discussion. Such acts, along with others, are increasingly cited as evidence of “a rising backlash” against the regime of investor-State arbitration generally.

The term “backlash” indicates the presence of something more than scrutiny, critique or even crisis. Read the rest of this entry…

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Horrible Metrics

Published on August 24, 2016        Author: 

I was visiting the site of the American Journal of International Law this morning, and this particular advertising blurb caught my eye:

The Journal ranks as the most-cited international law journal on Google Scholar. It is also considered by the nonprofit, scholarly periodical resource JSTOR to be “the premier English-language scholarly journal in its field.”

Wow, I thought – it’s no longer sufficient to say that the international law academic profession as a whole regards the AJIL and EJIL as the two most prestigious journals in the field, but even when we are self-promoting to our own readership we have to refer to some kind of metric or league table. Second wow, I had no idea that Google Scholar ranked international law journals, I should really check that out. Here’s the table:

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Filed under: EJIL, EJIL Analysis
 
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The European Convention on Human Rights in Non-International Armed Conflict – Revisiting Serdar Mohammed

Published on August 22, 2016        Author: 

The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. Read the rest of this entry…

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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

Read the rest of this entry…

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Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

Published on August 12, 2016        Author: 

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

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Jurisdictional Qualms about the Philippines v. China Arbitration Awards

Published on August 11, 2016        Author: 

As is well known, the 1982 United Nations Convention on the Law of the Sea (here; hereafter Convention) provides for compulsory dispute settlement, albeit subject to various limitations and exceptions. In principle, any dispute regarding the interpretation or application of the Convention may be submitted to binding settlement (Article 286), via a choice for the International Tribunal for the Law of the Sea, the International Court of Justice or arbitration under Annex VIII (Article 287). In case of varying choices by the parties, the default procedure is an Annex VII special arbitration, and this was the procedure used by the Philippines to initiate the case against China.

 The latest award in this case (here; hereafter Award on the Merits) has already been commented upon (here, here and here; and here, here, here, here, here and here). Nevertheless, a critical reading of that award and its predecessor on jurisdiction and admissibility (here; noting other views here and here; hereafter Award on Jurisdiction) may bare certain weaknesses that go to their core, and hence possibly their validity, namely whether the Tribunal possessed the requisite jurisdiction to decide certain disputes and render its award on the merits in the first place. Possible flaws lie with its claim that certain disputes do not require it to determine sovereignty, with its claim that China does not invoke historic title, and with its claim that no issues of delimitation are at stake.

Read the rest of this entry…

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The South China Sea case: Chess Arbitration?

Published on August 10, 2016        Author: 

This post looks into the wider questions The South China Sea recent award raises and its possible impact.   Looking back at the rare examples in international law in which States chose not to appear to participate in the proceedings, I address questions such as “what good is an award that cannot be enforced” and what role has arbitration in that context.  I argue that contrasting with conventional dispute resolution in which the award puts an end to a dispute, the award in the South China Sea case was neither an end in itself, nor necessarily an attempt to get leverage on the part of Philippines, to negotiate with China at bilateral level. After all, counsel for Philippines himself has argued that “bilateralized negotiations had failed”.  I argue that much like a chess-movement, the South China Sea case is rather the means for something else in a broader chess-like strategy: (a) as a brick on which other disputes can be built (b) to attempt the multilateralization of the dispute concerning the South China Sea, to involve all those countries with claims in respect of the disputed sovereignty and entitlements over the South China Sea.

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Is the EU really more precautionary than the US? Some thoughts in relation to TTIP negotiations

Published on August 9, 2016        Author: 

On January 26, 2016, during a public meeting organized by the Trans-Atlantic Consumer Dialogue, the European Commissioner for Trade, Cecilia Malmström, said that the precautionary principle (PP), the principle which enables rapid response in the face of a possible danger to human, animal or plant health, or to protect the environment, is a fundamental rule in the European policies and its compliance is ensured both in the legislative process and trade agreements. Therefore, the principle is central to the negotiations surrounding the Trans-Atlantic Trade and Investment Partnership (TTIP). Despite verbal assurances given by Commissioner Malmström, who has radically excluded a possible lowering of PP standards in Europe, the issue deserves to be addressed more carefully.

Europe is often considered more precautionary than the US. A comparative analysis demonstrates that the difference between the two approaches rests on the perception of risks that characterize social realities, and not by the will to apply the principle more or less intensely. As the most careful doctrine already showed, if a wide variety of situations where there is a need for precautionary measures are analyzed, it may be found that application of the the principle in US law is not all that dissimilar to what we see in the European context. Read the rest of this entry…

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Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

Published on August 2, 2016        Author: 

In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…

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