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Announcements

Published on April 7, 2013        Author: 

On 11/12 April, the Schools of Law of the University of Glasgow and Queen Mary, University of London, together with the Ministry of Foreign Affairs of Poland, are hosting a workshop entitled ‘Structural Challenges Facing International Organisations: Re-Assessing the League of Nations’ (Lincoln’s Inn Fields, London). The workshop will discuss key challenges facing international organisations, such as the tension between coherence and wide membership and the balance to be struck between stability and reform. It does so by looking at the example of the League of Nations as the first attempt at ‘world organisation’. The keynote address on ‘Lessons from the League of Nations’ will be by Mr Stephen Mathias, UN Assistant Secretary-General for Legal Affairs (New York). To attend, please register here or email Christian J. Tams at christian.tams {at} glasgow.ac(.)uk

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Filed under: EJIL Analysis
 

Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Published on April 3, 2013        Author: 

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation. Read the rest of this entry…

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Filed under: Editorials, EJIL Analysis, Israel, Palestine, States and Statehood
 

Are the two Koreas Now at War?

Published on April 1, 2013        Author: 

In recent days the tensions on the Korean peninsula have risen. On 11 March, North Korea claimed  that it had terminated the armistice agreement that ended the Korean War of the 1950s and on 30 March stated that:

“From this time on, the North-South relations will be entering the state of war and all issues raised between the North and the South will be handled accordingly. The long-standing situation of the Korean peninsula being neither at peace nor at war is finally over.” (see this BBC article for a useful timeline of recent events”

But does this statement mean that the two Koreas are back at war, despite the absence of hostilities at this point in time? And why might a state of war be important legally, if there are no hostilities? Also has North Korea validly terminated the armistice agreement and what would the legal implications of this be? We examined all of these issues here on EJIL:Talk! back in July 2009, in two posts written during a previous Korean crisis. One post “The Korean War has Resumed !! (Or so we are told)” was written by me. The other – Has North Korea Terminated the Korean Armistice Agreemennt?  -  was by my former student, Seunghyun Sally Nam, who was, at the time of writing, an official in the Korean Peninsula Peace Regime Division at the South Korean Ministry of Foreign Affairs (but writing in her personal capacity). The issues we covered then are perhaps more relevant now and I invite readers to revisit those posts. They are also in the “From the Archives” box to the right.

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Filed under: Armed Conflict, EJIL Analysis, Use of Force
 

Isaiah’s Echo: Progress, Prophecy, and the UN Charter

Published on March 27, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

The phrase “swords into plowshares” has been adopted by countless organizations campaigning for peace and is also frequently associated with the UN’s mission and international law more broadly. The full quote comes from the book of the Prophet Isaiah:

“He shall judge between the nations, and shall arbitrate for many peoples; they shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”

By a wonderful co-incidence this is chapter 2 verse 4 (2:4) of Isaiah and corresponds very closely to the prohibition on the use of force in Article 2(4) of the UN Charter (UNC):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

With the similarity in the numbering (the original Dumbarton Oaks draft called this “Chapter” 2 giving an even closer resemblance) it is tempting to think that the connection between the UNC and Isaiah was there from the UN’s inception. Swords into Plowshares statueThere is also a statue in the UN garden named “Let Us Beat Our Swords into Plowshares”.  Wikipedia even finds it necessary to inform us that, contrary to popular belief, these words from Isaiah are not in fact inscribed on the UN building’s foundation stone. Those words are actually engraved on a wall across the road.

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Filed under: EJIL Analysis, United Nations, Use of Force
 

Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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Filed under: Diplomatic Immunity, EJIL Analysis, Jurisdiction, Law of the Sea, State Immunity
 

Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

Published on March 13, 2013        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London.

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier report in January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context. Read the rest of this entry…

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Filed under: Armed Conflict, EJIL Analysis, International Humanitarian Law, Israel
 

The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic

Published on March 11, 2013        Author: 

On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals.  With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison.  The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.

Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.

The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic  was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.

The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.

Read the rest of this entry…

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Filed under: EJIL Analysis, International Criminal Law, International Criminal Tribunal for the Former Yugoslavia
 
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Registration Open for ILA (British Branch) Annual Meeting in Oxford

Published on March 7, 2013        Author: 

Registration is now open for the Spring Conference of the International Law Association (British Branch) which will take place in Oxford on April 12 and 13. The theme of the conference is “The Changing Face of Global Governance:  International Institutions in the International Legal Order”. The conference will explore the changing nature of international  institutions and their impact on international governance, international  law-making and law-enforcement. Papers address the role of international institutions in a wide range of areas, including the maintenance of peace and security, international economic law, environmental law, law of the sea, international criminal law, as well as the regulation of technology and health.

The Keynote Lecture and Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, United Nations Under Secretary General for Legal Affairs and Legal Counsel. Papers will be presented by speakers drawn from academia as well as from the offices of legal counsel of international organizations and States. Plenary speakers include Dan Sarooshi, Nico Krisch, Alan Boyle, Guy Goodwin-Gill, Kristen Boon, Payam Akhavan and Charles Jalloh. The programme and registration details are available on the new website of the Public International Law Group in the Oxford Law Faculty.  The cost for both days is £60 for academics (£40 for ILA members) and £35 for students (£25 for ILA members).

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Filed under: EJIL Analysis, EJIL Reports
 
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ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: 

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

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Filed under: Diplomatic Immunity, EJIL Analysis, International Criminal Court
 

Drones, Battlefields, and Asking the Right Questions

Published on February 28, 2013        Author: 

Noam Lubell is Reader in Law, University of Essex. He can be followed on Twitter @nlubell.

Not only is the debate over the use of unmanned aerial vehicles (drones) not going away, it appears to be consistently growing, with ever new examinations and reports. It tends to encompass – and sometimes unnecessarily conflate – a number of issues, including:

  • The advantages, disadvantages and legality of the drone technology itself, e.g. should there be restrictions on remote controlled (or moving on to autonomous) methods of warfare.
  • The manner in which the use of drones appears to further the concept of a ‘global battlefield’, and a ‘global war against Al-Qaida’ (or ‘war on terror’, take your pick).
  • The ius ad bellum aspects in relation to drone strikes on the territory of another state.
  • The adherence to the law of armed conflict – if and when it applies – in specific drone strikes, especially concerning the status of individuals killed by drone strikes, and rules on indiscriminate attacks and proportionality.
  • Accountability for drone strikes and transparency over their use.
  • The applicability of international human rights law to drone strikes. In the US this point has taken on an extra US-centric twist, with regard to constitutional law and powers, and the implications with regard to US citizens.

There are obvious links between these issues and they all affect each other in a myriad of ways, but any examination of the international law applicable to drone strikes must also understand that the above all need to be taken into account and given separate attention, before any attempt is made to assess the overall picture of legality. Clearly there’s no room to cover all the above in adequate detail in this one post, but I would like to briefly address the second point above, and the way it links to some of the other issues.

Read the rest of this entry…

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Filed under: EJIL Analysis, Targeted Killings