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Home Archive for category "EJIL Analysis" (Page 2)

The Emerging Reparations Case-Law of the ICC Appeals Chamber in Comparative Perspective

Published on June 12, 2015        Author: 

Reparations for victims of international crimes or serious human rights violations have received increasing attention from international courts. The most recent example is the Judgment on the Appeals against the “Decision establishing the principles and procedures to be applied to reparations” rendered by the Appeals Chamber (AC) of the International Criminal Court (ICC) in Lubanga on 3 March 2015. (See this previous post.) The present contribution compares how three key reparations issues are addressed by the ICC Appeals Chamber and by two other courts: the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Inter-American Court of Human Rights (IACtHR). Besides the ICC, the ECCC is the only international or hybrid criminal court where victims can claim reparations. The IACtHR’s reparations case-law has been seminal for decades, and references to its case-law by the ICC and ECCC reflect an ongoing dialogue. The three issues on which the courts are compared are: who can claim reparations, who is obliged to pay reparations, and what reparations can victims obtain

Who can claim and benefit from reparations?

Under rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), victims are “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Only victims who suffered harm as a result of the crimes for which the accused was convicted are eligible to claim reparations against him/her (AC Judgment, para. 8). At the ECCC, rule 23bis(1) is the equivalent rule 85(a) defining victims. However, unlike the ICC, the ECCC rules and case-law require a direct causal link between the victim’s harm and the crimes for which the accused was convicted (rule 23bis(1); Case 002/01, Trial Chamber Judgment, para. 1114).

Given the absence of a direct causal link requirement before the ICC, the AC should have considered sexual and gender-based violence as harm resulting from the crimes for which Lubanga was convicted (AC Judgment, paras. 196-198). During his trial, there was robust evidence of sexual exploitation of minors by armed forces or groups. The UN Special Representative for Children and Armed Conflict considered such sexual exploitation as providing essential support to the armed groups and, thus, as active participation in hostilities (Lubanga, Trial Judgment, para. 630). Accordingly, this sexual exploitation was arguably linked to the child soldiers-related crimes for which Lubanga was convicted. The AC should therefore have upheld the Trial Chamber’s finding of reparable harm from sexual and gender violence (paras. 207-209). Read the rest of this entry…

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Lethal Automated Robotic Systems and Automation Bias

Published on June 11, 2015        Author: 

Lethal Autonomous Robotic Systems (LARS) are machines that are capable of initiating a lethal attack on individuals or other targets. Based on its programming, a LARS can determine whether an individual is a valid target and whether engaging that target is a proportional action, and act upon its own assessment. Such sophisticated systems have long been in the realm of science fiction, but today they are not only a possibility, but a reality. For example, Samsung has developed the SGR-A1, which is currently deployed in the Korean demilitarised zone. Although, for now, that device leaves the final decision to engage to a human.

The debate on the use of such systems is heating up (see for instance the various reports by Human Rights Watch, the Oxford Martin Policy Paper, or discussions on the topic in relation to the CCW). These systems have been criticised from moral, political and legal perspectives. Leaving aside the moral and political objections, the development of a LARS is extremely problematic from the perspective of international humanitarian law. In particular, questions have been raised about the ability of such systems to make distinctions between civilians and combatants, as well as computing the proportionality of an attack. Furthermore, there are complex responsibility questions that are as yet not fully answered.

In response to these problems, the US has issued a directive that all robotic systems of this type will in fact not be operated in a fully autonomous mode, but will always function with a ‘human in the loop’. This statement is apparently intended to undermine at least the legal, and possibly the other criticisms relating to the deployment of LARS.

Human in the loop

It could be argued, however, that the deployment of a LARS with a human in the loop is just as problematic as a fully automated version. While the decision to engage a target will always be overseen by a human being, I will argue that it is not a given that this will in fact influence the functioning of the system sufficiently to adequately safeguard against the problems associated with the fully automated settings.

Firstly, the term ‘human in the loop’ is not very specific. There are a variety of ways in which a system can operate with a human in the loop. Read the rest of this entry…

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The Legal and Political Feasibility of the EU’s Planned ‘War on Smuggling’ in Libya

Published on June 10, 2015        Author: 

Introduction

On 19 April 2015, after a series of deadly shipwrecks, over 800 migrants perished when their smuggling boats, boarded in the Libyan port Zuwara, capsized in the Mediterranean Sea. The response from the EU was immediate. On 20 April, at a joint meeting of EU Foreign and Interior Ministers, the EU Migration Commissioner presented a 10-point action plan, the second point of which foresaw “[a] systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean”. At the special meeting of the European Council on 23 April 2015, this was streamlined into the commitment to undertake “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. These events precipitated the adoption on 18 May of a decision of the EU Foreign Affairs Council, establishing an EU military operation called EUNAVFOR MED with the mission “[to disrupt] the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers” (Art. 1).

According to Article 2 of the decision, EUNAVFOR MED shall be implemented in three sequential phases. The first phase will be the “lightest”, aiming at the detection and monitoring of migration networks through information gathering and patrolling on the high seas. It is only in the second and third phases that the operation should achieve the aforementioned aspirations. Thus, in the second phase, it is foreseen to board, search, seize and divert suspected vessels, both on the high seas and in the territorial or internal waters of the state concerned whereas for the third phase, the decision speaks of taking all necessary measures against a suspected smuggling or trafficking vessel and related assets, “including through disposing of them or rendering them inoperable in the territory of that State” (Art. 2(b).

The decision makes the implementation of those second- and third-phase measures which need to be conducted in the territorial sea, the internal waters or the land territory of Libya conditional upon “any applicable UN Security Council Resolution or consent by the coastal State concerned” (Art. 2). This is quite logical. As the planned enforcement measures involve a threat or actual use of coercive power, the fundamental international law principles of sovereign equality, territorial sovereignty and non-interference prohibit the EU Member States from exercising enforcement jurisdiction in the territory of Libya (including territorial and internal waters) without: 1) Libya’s permission and/or 2) the authorization of the UNSC under Chapter VII of the UN Charter (on international law implications cf. Gallagher and David, The International Law of Migrant Smuggling, CUP, 2014. p. 222).

Because there are competing authorities claiming to be the government of Libya, and inspired by the previous experience with the UNSC-accepted EU anti-piracy military operation ATALANTA (launched in 2008 in the framework of European Common Security and Defence Policy to combat the piracy off the coast of Somalia), the EU opted from the very beginning for seemingly the easiest and fastest solution, which is to obtain the green light from the UNSC. In the following, I will elaborate on the feasibility of this option. Read the rest of this entry…

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For or Against International Arbitration: A Perspective of International Law of Dispute Settlement

Published on June 9, 2015        Author: 

Lady Bracknell is not often relied on as an authority on matters relating to international dispute settlement. Perhaps unjustifiably so; some of the recent debates do bring to mind her remark about end-of-season conversations, ‘when everyone has practically said whatever they had to say, which, in most cases, was probably not much’ (I). ESIL Reflections of Mathias Kumm and Stephan Schill, I hasten to add, do not fall into that category. Even if the readers are not persuaded by their arguments, the precise reason for disagreement is useful for reflecting upon and clarifying one’s own position. I am grateful for the opportunity to offer a few observations of my own, presented from the perspective of international law of dispute settlement.

Kumm and the argument against arbitration

Kumm, it is fair to say, is not a fan of investor-State arbitration. He makes the argument against its inclusion in mega-regional agreements in a forceful, clear, and eloquent manner, which is in many ways appealing. Of course, the cost of making a clear argument about a complicated issue of international law is that pedantic blackletter positivists will (attempt to) side-track the discussion by raising spurious ‘well, yes, but’ objections. Read the rest of this entry…

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The Most Important Cities in International Law

Published on June 8, 2015        Author: 

Professor Martens’ Departure, a biographical novel about the international lawyer Friedrich Martens by Estonian writer Jaan Kross, describes Martens’ first academic visit to “the West”. The visit takes place in 1869, and goes to Berlin, Amsterdam, and Brussels. This raises the question of where Martens should have gone today. Put differently, what cities are currently the most important in international law?

This question can be answered in different ways. Which cities house the best universities for international law? Which have the most influential State governments? Where are the most important international organisations and courts located? And where are the best private practitioners? I have tried to combine these four parameters into a single rating, to give a highly informal ranking of the top international law cities as of 2015. I welcome readers’ reactions to my attempt to identify international law’s most important cities.

Each parameter has a rating of 0 to 5. The assessments are my own, but are to some extent based on other sources.

  • “Academia” is based on the Quacquarelli Symonds, Academic Ranking of World Univiersities, and Times Higher Education university rankings, with adjustments that reflect my view of the universities’ strength in international law. Only five cities get a top rating for their universities: Cambridge UK, Cambridge MA (Harvard), New Haven (Yale), New York (mainly NYU), and Oxford.
  • The numbers for “IOs and courts” are based on my impression of the practical importance of each city’s institutions in international law. Six cities get a top rating: New York (the UN), The Hague (the most international courts including the ICJ, ICC as well as international organizations), Brussels (mainly the EU and NATO), Geneva (the WTO, the UN, and more), Washington (mainly ICSID, the IMF, and the World Bank), and Strasbourg (mainly the ECtHR and Council of Europe).
  • My views of “State power” are mostly based on GDP numbers, the size and sophistication of armed forces, and membership of important groups and organisations (especially permanent membership of the UNSC). Only Washington and Beijing get a top rating for state power. The US and China have the world’s largest active military forces, military budgets, and GDPs, as well as nuclear weapons and permanent membership of the UNSC.
  • “Private practice” is based on the Legal 500 and Chambers and Partners rankings. Having a separate section for “public international law” and/or “international arbitration” gives a high rating, while having “international arbitration” mentioned in the section on “dispute resolution” gives a somewhat lower rating. Only four cities, Washington, New York, Paris, and London, get a top rating.

The combined result is that Washington is the number one international law city, followed by New York and Paris, ahead of London, Geneva, and Brussels. The full results (for a selection of cities) are as follows: Read the rest of this entry…

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Mobile Technology in the Interest of Law and the Protection of Civilians

Published on May 29, 2015        Author: 

Genevmobile app1a Call, a Geneva-based NGO, launches Fighter not Killer, a mobile quiz to raise awareness of the law of armed conflict among armed groups.

Making international humanitarian law more accessible

Today’s conflicts are mostly qualified under international humanitarian law (IHL) as being of a non-international character, i.e. a State against one or several armed non-State actors (ANSAs) or even a conflict among different ANSAs. It is thus critical to secure these actors’ compliance with international norms. The reasons for lack of compliance are diverse: strategic arguments (asymmetric warfare), the complexity of the different treaties and the lack of knowledge of applicable norms, and sometimes defiance toward international norms. These issues make the respect and implementation of IHL by ANSAs challenging, often leading to dramatic consequences for civilian populations.

While the level of knowledge of IHL varies among the different ANSAs, they all share common features. Their members are not necessarily professional combatants and have not been systematically trained on IHL. An uneven level of education and difficulties in accessing areas where ANSAs are operating impede dissemination of and training on IHL norms.

Since 2000, Geneva Call has been engaging in dialogue with more than 100 ANSAs to encourage them to respect IHL and enhance the protection of the civilian populations during armed conflict. In its daily work, the organization enters into dialogue with armed groups and invites them to sign Deeds of Commitment, through which ANSAs publicly commit to respect specific international humanitarian norms. It also supports the dissemination of IHL to commanders, combatants, political leaders of armed groups, and local communities.

Fighter Not Killer: A mobile quiz on IHL

To support this engagement with ANSAs, Geneva Call has developed a set of innovative tools to make IHL accessible to ANSA members. This set includes a mobile phone application, called ‘Fighter not Killer’. Read the rest of this entry…

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What Lies Beneath the ‘G’ Word? Genocide-Labelling and Fact-Finding at the UN

Published on May 28, 2015        Author: 

In late 2013, the Special Adviser on the Prevention of Genocide warned that “there is a risk of genocide” in the Central African Republic (CAR). A year later, with thousands dead and hundreds of thousands displaced, a UN-mandated Commission of Inquiry (CoI) determined that genocide had not occurred because “the threshold requirement to prove the existence of the necessary element of genocidal intent ha[d] not been established…” (Executive Summary). Their answer seems clear, and yet this post will argue the Commission may have reached the wrong conclusion. In doing so, it will also draw attention to discrepancies between the UN’s classifications of genocide and raise questions about the powers of fact-finding bodies more generally.

It should be noted at the outset that the CoI left little doubt that serious crimes had been committed in CAR. Established at the request of the Security Council, the Commission had a mandate to investigate violations dating back to January 2013 when Séléka fighters began their march on CAR’s capital, Bangui. Though some of the worst violence took place on its watch, the Commission could not “establish with any degree of accuracy the number of people who were killed in the conflict.” Conceding that the available estimates “fail to capture the full magnitude of the killings that occurred”, it nevertheless concluded that “all the parties were involved in serious violations of international humanitarian law and gross abuses of human rights including rape and other gender based sexual offences and violations.”

What about genocide?

The CoI’s analysis of this key question begins with the applicable law, where it notes that genocide requires the actus reus (‘specific acts committed against specific groups’), the mens rea of specific (genocidal) intent, and – in line with the Rome Statute’s Elements of Crimes – ‘a manifest pattern of similar conduct directed against the targeted group’ (para. 450). Against this backdrop, the report establishes that the genocide label would prima facie apply only to acts committed by the Christian anti-balaka against CAR’s Muslims. Crucially, genocide would not be applicable to attacks committed by Muslims against Christians. The Commission then assesses the case law of several tribunals in order to distinguish ethnic cleansing from genocide.

This is where the legal analysis takes a perplexing turn. Before it has a chance to examine the legal elements of genocide, the CoI says (para. 452):

…the information available to it reveals repeated instances of crimes against humanity amounting to the fact pattern of ethnic cleansing committed by the anti-balaka in the areas in which Muslims had been living. In terms of criminal responsibility, however, the Commission is of the view that these acts of ethnic cleansing would best be prosecuted with (sic) under the rubric of crimes against humanity, which is the crime category that is explicitly recognized in the Rome Statute and in the relevant legislation of the CAR… [T]he facts of the situation indicated that… crimes against humanity… capture the full essence of the policy of ethnic cleansing that was pursued.

There are two problems with this conclusion. Read the rest of this entry…

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The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?

Published on May 27, 2015        Author: 

The quick answers to the above two questions are Yes and Maybe.  Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”).  Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA.  Before delving into these, it is worth asking why repeal is even on the agenda.

This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged.  Having won a majority on the May 7th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:

  • Break the formal link between British courts and the European Court of Human Rights and make our own Supreme Court the ultimate arbiter of human rights matters in the UK” and,
  • “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

It also intends to go ahead with a “British Bill of Rights” to:

  • “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
  • “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
  • “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).

Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, Read the rest of this entry…

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The Situation Concerning the Islamic State: Carte Blanche for the ICC if the Security Council Refers?

Published on May 27, 2015        Author: 

At a meeting of the UN Security Council held on 27 March 2015, the possibility of a referral to the International Criminal Court (ICC) of the situation relating to the so-called Islamic State (IS aka ISIS, ISIL, or Daesh) was vigorously discussed. At that meeting, which was convened by France and chaired by French Foreign Minister Laurent Fabius (who had travelled to New York specifically to preside over the meeting), more than a dozen of States lined up to call for a Council referral. However, confusion seemed to rein over what should be referred to the ICC. While most States appealed for a referral of the situation in Syria, some urged a referral of the situation in Iraq, others called for a referral of the situation in both States, and, finally, a few remained purposefully vague by calling for a referral of ‘the situation’, ‘the matter’, and even ‘the cases’ to the ICC. One issue was, however, clear: the reason to refer a situation to the ICC would be to make members of IS accountable for the crimes they committed.

This discussion about the possibility of prosecuting IS members at the ICC raises the question whether “situations” referred to the ICC must be defined by reference to a given territory. Is it possible to refer a worldwide situation relating to a group to the Court? Or must the situation referred be one occurring in a particular geographical location or in a particular state?

On 8th April 2015, ICC Prosecutor Fatou Bensouda stated that she will not open a preliminary examination concerning alleged crimes committed by IS, unless Iraq or Syria or the Security Council (SC) provide jurisdiction to the ICC. As Barrie Sander has noted this statement was an attempt by the Prosecutor to pressure States and, especially, the Security Council, to assume their responsibility and confer jurisdiction on the ICC over this situation.

Despite the Prosecutor’s ‘clarification’, neither Iraq nor Syria or the Security Council has yet taken action. Subsequent to her statement, Lithuania, Chile and the UK’ representatives at the UN have continued to push for a Council referral of the situation in Syria to the ICC – but to no avail. The position of Russia and China concerning a referral of Syria is known. They vetoed a similar attempt last year. One may think that the recent attempts to refer IS are trying to push through the window what some members of the Council were unable to push through the door in 2014. However, there is a difference. A Security Council referral of the crimes committed by IS tout court would enable the Prosecutor to charge members of IS not only for crimes committed in Syria or in Iraq but also for crimes committed in Libya, Yemen, Tunisia, France, and why not in the United States. Read the rest of this entry…

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Mexico: The War on Drugs and the Boundaries of Crimes Against Humanity

Published on May 26, 2015        Author: 

Mexico ratified the International Criminal Court (ICC) Statute in 2006. Since that time, in the context of the ongoing conflict with drug cartels, there are credible reports (from governmental and non-governmental sources) of tens of thousands of killings, tens of thousands of disappearances, and thousands of cases of torture. While the precise figures are disputed, the numbers are large. The 2014 kidnapping and disappearance of 43 Ayotzinapa students by police drew international outrage, but it is part of a bigger pattern.   In terms of the scale and nature of the crimes, these figures would appear to place the situation among the gravest within the ICC’s jurisdiction. Yet international criminal lawyers generally tend to give limited attention to the violence in Mexico, and hesitate to apply the label of crimes against humanity.

Against compartmentalization: drug-related violence as crimes against humanity?

In international criminal law practice, we are most accustomed to two configurations of crimes against humanity: state repression of political opponents, and atrocities by parties to armed conflict. By contrast, we tend to label the violence in Mexico as “drug-related violence” and therefore not as crimes against humanity.

But should we separate crimes into watertight compartments? After all, we recognize that an act of terrorism can also be a crime against humanity or war crime. We should not assume that organized crime, or responses to organized crime, must fall into a completely separate compartment. Instead, we should look at the elements of crimes against humanity. The motives behind the crimes (eg. economic motives or the laudable goal of restraining cartels) do not per se prevent widespread and systematic violence against civilians from constituting crimes against humanity.

Addressing factual controversy

Another obstacle is the difficulty of ascertaining the scope and patterns of the crimes, given the scale of crimes (thousands of killings and disappearances) and limited records. The Mexican government has launched several important initiatives to collect and systematize information on crimes and victimization, and NGOs have also embarked on valuable projects. Read the rest of this entry…

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