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

Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle

Published on August 7, 2014        Author: 

2014.08.05.Jean Baptiste photoJean-Baptiste Maillart is a PhD Candidate at the University of Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

Article 12(2)(a) of the Rome Statute provides that the ICC may exercise its jurisdiction over a crime if the “State on the territory of which the conduct in question occurred” is a party to the Statute or has accepted the Court’s jurisdiction by a declaration. It has become commonplace to paraphrase that provision as stating that the Court may exercise its territorial jurisdiction over a crime that has been committed within the territory of a State Party. For instance, the late Judge Hans-Peter Kaul wrote [p. 607] “if a core crime is committed by an individual in the territory of a State Party to the Statute, the ICC will have jurisdiction” (see also the commentaries of Schabas [p. 285], Bourgon [p. 564] and Haupais [p. 582]). The Court itself uses the exact same wording: “[…] under article 12(2) of the Statute one of the two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or […] (b) the relevant crime was committed by a national of a State Party […]” (ICC-01/04-01/07-262 [§. 14]); see also for instance ICC-02/11-14 [§. 187] or ICC-01/09-19-Corr [§. 175]).

However, a careful and literal reading of Article 12(2)(a) leads to a different conclusion. The Court has jurisdiction over a crime when “the conduct”of this crime occurred on the territory of a State party, not when the crime was committed there. Some scholars addressing Article 12 (e.g., Wagner [p. 485] and Vagias [p. 53]) have pointed out the exact terminology used, but none have considered whether it could have any practical effect. This post considers, on the basis of the traditional interpretation of the term “conduct”, a possible challenge to the ICC’s jurisdiction over certain cross-border crimes where, if Article 12(2)(a) said “commission”, it would undoubtedly have jurisdiction. In other words, it could be argued that it is incorrect to read “conduct occur[ing]” on certain territory as equivalent to “commission of a crime” on that territory.  The post also proposes a counter-argument in favor of jurisdiction. Read the rest of this entry…

Print Friendly
 

Towards a New Global Treaty on Crimes Against Humanity

Published on August 5, 2014        Author: 

Sadatl4Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.

Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of DPivnichny photoLaw in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

The Crimes Against Humanity Initiative and Recent Developments at the ILC

On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades:  the absence of a comprehensive global treaty on crimes against humanity.

The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008.  The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st  ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…

Print Friendly
 

Consent and Customary International Law

Published on August 4, 2014        Author: 

I am pleased to see Professor Guzman and Jerome Hsiang being among those authors who admit that one cannot construct a plausible and coherent CIL theory without a thorough conceptual clarification. In their short article in EJIL Vol. 25:2 (2014), they are focusing on consent and CIL, particularly on the tension between the principle of consent prevailing in international law and non-consensual law-making in the field of CIL. They do not perform an analysis on the concept “consent”, but try to answer the question of why rationally self-interested states should accept the existence of non-consensual customary rules in international relations. I am willing to accept some of their claims or conclusions, as follows. (i) There exist some weak, limited forms of non-consensual rule-making in contemporary international law. (ii) Customary rules are the output of such rule-making. (iii) A non-consensual customary rule, by its content and nature, usually provides great benefits to most of the states or the whole international order and relatively small costs to one or some states.

Of course, all this is the rejection of the so-called consent theories of CIL. It is no surprise. In his excellent, seminal article of 2005 (Saving Customary International Law), Guzman has outlined the basis of a modern, non-objectivist, belief-based CIL theory within the framework of his rational choice doctrine. A belief-based CIL theory is not compatible with consent theories. I also have doubts about that a consent theory could adequately explain how CIL really works. However, three caveats are in order here.

First, consent theories of CIL put up a stout resistance. They are supported by the requirement of “acceptance” in the text of Article 38(1)(b) of the Statute of the International Court of Justice, although they encounter difficulties with adjusting acceptance to opinio juris. For example, Olufemi Elias and Chin Lim, who worked out a modern, refined and flexible version of CIL consent theories (The Paradox of Consensualism in International Law), simply conflate the two concepts, which is problematic from the theoretical angle. Read the rest of this entry…

Print Friendly
 

Use of Grad Rockets in Populated Areas: What Lessons from Gotovina?

Published on July 30, 2014        Author: 

Maya Brehm PhotoMaya Brehm is a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights (ADH) and a consultant with Article 36 and PAX. Her recent work focuses on the humanitarian impact of explosive weapon use in populated areas and on framing the policy debate on autonomous weapons systems.

In a recently published report, Human Rights Watch (HRW) documents harm to civilians from the use of 122mm Grad rockets apparently fired by Ukrainian government forces and pro-government militias into Donetsk and its suburbs. In four attacks investigated by HRW at least 16 civilians were killed and many more wounded. According to HRW insurgent forces also recently used Grad rockets. The image below from HRW shows attacks in and around Donetsk (click to enlarge). The organization has also posted a video online presenting its findings.

 The problem with Grad rocketsGrad rockets

Grad rockets are unguided rockets fired from a multiple-barrel rocket launcher (MBRL) that can deliver up to 40 rockets within a very short time to a range of 20 kilometers. Like other unguided, indirect fire  weapons, Grad rockets are considered ‘area weapons’, suited for attacks against targets of significant dimensions, because due to ballistic and other factors, the area over which the rockets can spread out is relatively wide.

The dimension of the area affected by a rocket attack (the area of potential impact of the rockets combined with the blast/fragmentation zones of the individual rockets) is a function of many variables, including fuzing, ballistic and firing technique-related factors. As that area can be very wide, the use of Grad rockets in populated areas carries a high risk of harm to civilians. Read the rest of this entry…

Print Friendly
 
Tags:

The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

Read the rest of this entry…

Print Friendly
 

The ECtHR and the Regulation of Transnational Surrogacy Agreements

Published on July 25, 2014        Author: 

ivana6-1Ivana Isailović is a post-doctoral researcher at the Perelman Center for Legal Philosophy (Université libre de Bruxelles) and is affiliated with the IAP, Human Rights Integration Project.

In a number of recent cases, French courts refused to give effect to US court decisions that recognized French intending parents as legal parents of children born through surrogacy agreements and to inscribe the foreign filiation into the French civil status registry. In the decisions in Mennesson v. France and Labassee v. France, the European Court of Human Rights (ECtHR) ruled that those refusals violated children’s right to private and family life, protected by article 8 of the European Convention on Human Rights. It dismissed claims based on the breach of parent’s right to private and family life and on violations of article 14 (non-discrimination), article 6-1 (right to a fair trial) and article 12 (right to marry).

This is the first time the ECtHR has considered the question of transnational surrogacy. The decisions tackle some of the vexing issues related to the regulation of the booming global surrogacy market. These issues include ethical and political concerns related to the commodification of the body. Also in question are the definitions of citizenship and parenthood in a context in which the differences between domestic regimes illustrate a variety of cultural and political understandings of filiation and parenthood. This post focuses on the latter set of issues and the legal uncertainties they create.

Read the rest of this entry…

Print Friendly
 

The Downing of MH17 and the Potential Involvement of International Courts

Published on July 22, 2014        Author: 

I do not at all want to trivialize the human tragedy that is the downing of Malaysia Airlines flight MH17 over Ukraine last week, nor for that matter the parallel unfolding tragedies on the ground in Ukraine and in Israel and Gaza, by engaging in some premature lawyerly analysis. But, in reading on the unfolding story of the aircraft’s demise, I nonetheless couldn’t help but think how that story is very likely to find its epilogue in an international courtroom. The facts of MH17′s destruction are obviously far from clear, and are not going to become much clearer in the near future, but the number of possible scenarios is limited – the aircraft was (most likely) destroyed by Ukrainian rebels with Russian-supplied weapons, or (less likely) by either Ukranian or Russian state agents (who may have acted ultra vires). And not only did the downing of MH17 deepen a major existing international crisis, but it directly affected a number of states other than Ukraine and Russia, such as Malaysia and the Netherlands, not to mention the families of the victims themselves. This raises both the incentives and the opportunities for international litigation, in addition to whatever proceedings may ensue before domestic courts or international fact-finding missions.

Consider, first, the possibility that a case or cases regarding MH17 might end up before the European Court of Human Rights. Both Russia and Ukraine are of course parties to the ECHR, and readers will recall that one of the first acts of the new government in Kiev in response to the Crimea crisis was to lodge an inter-state application against Russia in Strasbourg, on which the Court ordered provisional measures. It is perfectly possible for the downing of MH17 to be an issue in the existing or a new inter-state case, or indeed one brought by a third state, such as the Netherlands, since the majority of the victims had Dutch nationality. And obviously the families of the victims may also bring individual applications against either Russia or Ukraine.

In addition to whatever direct involvement these states may have had in the destruction of the aircraft, they could also be held liable for other internationally wrongful acts. For example, Ukraine could be responsible for failing to secure the right to life of the victims and failing to comply with its substantive positive obligations under Article 2 ECHR by deciding not to close the relevant airspace for civilian traffic. Russia could be held responsible for providing the rebels with anti-aircraft weaponry without sufficient safeguards (e.g. appropriate training of the missile crews), thus creating the risk that this weaponry could be used against civilian targets. Both states could be held responsible for failing to secure an effective investigation into the incident. Obviously the facts could yet develop and some very complex preliminary issues could arise (e.g. the extent of Russia’s control over the Ukrainian rebels and the question of the ECHR’s extraterritorial application), but all these points seem arguable.

Read the rest of this entry…

Print Friendly
 
Tags:

From Targeted Sanctions to Targeted Settlements: International Law-Making Through Effective Means

Published on July 22, 2014        Author: 

2014.08.06.Marijanew pictureMarija Đorđeska, LL.M., is a Thomas Buergenthal Scholar and an S.J.D. Candidate at the George Washington University Law School, in Washington D.C.

The U.S. Office of Foreign Assets Control of the Department of Treasury (OFAC) has again shocked the international financial community with a recent settlement with BNP Paribas, France’s largest financial institution. BNP Paribas was accused of violating U.S. sanctions against Iran, Sudan, Burma and Cuba from 2005 to 2012. For $8.9 billion in compensation – the priciest settlement to date – OFAC pardoned BNP Paribas and its subsidiaries from their civil liability under U.S. law. (Settlement Agreement [30], see also Enforcement Information for June 30, 2014).

OFAC is aggressively and effectively applying U.S. sanctions law to foreign institutions incorporated and doing business abroad, without taking into consideration foreign domestic legal regimes or international standards. French President François Hollande expressed his disapproval of the penalty imposed on BNP Paribas. The settlement should also cause concern among European and international lawyers, as BNP Paribas is the ninth European financial institution to be sanctioned since 2006 for processing funds for entities subject to U.S. sanctions. By threatening to cut off foreign financial institutions from the U.S. market, OFAC precludes these financial institutions from publicly and transparently arguing their case in legal proceedings (Settlement Agreement [31]). OFAC is establishing a precedent of a new, efficient, and not yet legal method for asserting U.S. laws abroad, bypassing the traditional territoriality principle of jurisdiction.

In the documents that are publicly available, OFAC does not mention any legal grounds on which it claims jurisdiction, leaving it unclear on what basis the U.S. can sanction transactions initiated abroad by foreign entities or the clearing of US dollars outside the U.S. (Factual Statement [34]) or regulate foreign exchange transactions (Settlement Agreement [12, 13]). Because the settlement negotiations were not made public, and BNP Paribas also waived its right to “any possible legal objection,” (Settlement Agreement [31]) the substantive public debate on the issue is necessarily limited.

Read the rest of this entry…

Print Friendly
 

OHCHR Publishes Report on Surveillance and Privacy in the Digital Age

Published on July 18, 2014        Author: 

Readers will recall that in its resolution on the right to privacy in the digital age the UN General Assembly had requested the Office of the High Commissioner for Human Rights to prepare a report for the next GA session on the various issues raised by mass electronic surveillance and the human right to privacy (see here for our previous coverage). An advance edited version of that report (A/HRC/27/37) is now available here. The report is rich, thoughtful and very much pro-privacy in the surveillance context, albeit not in a blind, fundamentalist way. It reaffirms that the right to privacy, as set out in Article 17 ICCPR or Article 8 ECHR, provides a framework within which the legality of surveillance measures needs to be assessed. While it acknowledges the legitimate governmental interests that surveillance may serve, it finds the existing institutional and legal arrangements in many states wanting and in need of further study and reform. Here are some of the highlights:

- It is important to consider linkages with other possible human rights violations, e.g. the collection of intelligence through surveillance that is later used for an unlawful targeted killing (para. 14).

- Interferences with the privacy of electronic communication cannot be justified by reference to some supposedly voluntary surrender of privacy on the Internet by individual users (para. 18).

- Collection of communications metadata can be just as bad in terms of privacy interference as the collection of the content of the communication (para. 19).

- Because of the chilling effect of surveillance: ‘The very existence of a mass surveillance programme thus creates an interference with privacy.’ (para. 20).

Read the rest of this entry…

Print Friendly
 
Tags:

Two Articles on the Relationship between IHL and IHRL

Published on July 14, 2014        Author: 

Readers interested in my four scenarios on the relationship between international humanitarian law and international human rights law who want to know how I would decide them, as well as those who’ve read coverage of the Serdar Mohammed v. MoD judgment, might also be interested in two companion articles I recently posted on SSRN. The first is called Extraterritorial Derogations from Human Rights Treaties in Armed Conflict. In a nutshell it argues that states can and should resort to derogations from human rights treaties in extraterritorial situations, for example that the UK could have derogated (but chose not to) from the ECHR with respect to situations in Iraq and Afghanistan. The second piece is entitled The Lost Origins of Lex Specialis: Rethinking the Relationship between Human Rights and International Humanitarian Law and it mainly deals with the genesis of the lex specialis principle and analyses the three different conceptions thereof. The abstracts are below the fold, and comments are as always welcome.

Read the rest of this entry…

Print Friendly