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Home Archive for category "International Criminal Law"

ESIL-International Human Rights Law Symposium: International Criminal Law and International Human Rights Law

Published on February 5, 2016        Author: 

International criminal law and human rights might, at one level, seem to be antipathetic. Not least, because, at the domestic level, most international human rights lawyers tend (and very frequently rightly) to decry the excesses of domestic criminal justice systems both at the procedural and substantive level.

It might be thought, therefore, that it is a little ironic that many human rights NGOs speak in stern terms of the necessity of the prosecution of international criminals, whilst excoriating the treatment of defendants in domestic law. The claims of irony are misplaced. The issue that most NGOs on point are raising is the abuse of authority by the powerful, and the appropriate responses to it. Hence, domestically, their focus tends to be on the treatment of often vulnerable, defendants, whereas when it comes to international crimes, the focus tends to fall on ensuring the accountability of usually powerful, perpetrators. I see no fundamental inconsistency in this. Nonetheless, the relationship between international criminal law and human rights is not simple.

For the purposes of this post, I will pass aside certain issues, such as the relationship between human rights law and the procedure of international and internationalised criminal tribunals, and the extent to which human rights are lived up to at the post-conviction (or acquittal) stage of international proceedings. There are others who are far better placed than I to discuss those issues. Here I will reflect briefly on three things: first, the substantive coverage of international criminal law; second, the relationship of international criminal law and international human rights law; and third, the extent to which they ought to overlap. These thoughts are preliminary, and intended to provoke debate rather than pre-empt it, still less foreclose it.

For the first part I will take as read that what we mean by international crimes as being the ‘big four’: aggression, crimes against humanity, genocide, and war crimes. Second, I will consider human rights law as being reflected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. There is more to be said about treaties at the liminal point between international human rights law and international criminal law, such as the Torture Convention, and the Convention on Enforced Disappearances, but here is not necessarily the place to engage in that debate. Third, I will look at the extent to which international criminal law and international human rights law jurisprudence (which is itself not a unified system of law) ought to influence one another. Read the rest of this entry…

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ESIL-International Human Rights Law Symposium: Interactions Between IHRL and Other Sub-branches of International Law – A Research Agenda

Published on February 4, 2016        Author: 

In our first post as co-chairs of the ESIL Interest Group on Human Rights, we suggested that human rights are central organising principles of public international law. We noted that:

International human rights law routinely interacts with other sub-branches of public international law by demanding new interpretations of existing law (cf. the principle of territorial application of treaties as regulated in the Vienna Convention on the Law of the Treaties); by qualifying existing obligations under other bodies of law (cf. international human rights law and the law of occupation); or imposing procedural and substantive obligations onto other bodies of law (cf. the ICC Statute).

In this symposium, we deepen our inquiry into the relationship of international human rights law (IHRL) with other sub-branches of public international law. We do so by examining in what ways and the extent to which IHRL has shaped and influenced the development of international criminal law, the law of armed conflict, international investment law, cultural heritage law and development. Looking at interactions between IHRL and a number of other sub-branches of public international law (PIL) demonstrates that there are both divergences and convergences in why and how far IHRL influences other bodies of PIL.

The contributions in this symposium indicate that all sub-branches under discussion interact with IHRL. There are, however, significant variations in how far they interact, the terms of interaction and the assessments of the consequences of such interaction. What explains such variation? Our contributors identify push and pull factors.

The purposive affinity between IHRL and other branches of PIL emerges as an important factor supporting IHRL’s influence on other branches. Lixinski on international cultural heritage law, Murray and Hampson on international humanitarian law, and Cryer on international criminal law, all point out that interactions with IHRL are strong because there are overlaps between what these bodies of law are seeking to achieve and IHRL. Van Ho’s post, on the other hand, points to the perceived lack of purposive affinity between IHRL and international investment law accounting for the limited interaction between the two sub-branches. Read the rest of this entry…

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Pre-Trial Chamber of the International Criminal Court Authorizes Initiation of Investigation in Georgia

Published on February 1, 2016        Author: 

On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.

This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.

Crimes within the Jurisdiction of the ICC

The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Read the rest of this entry…

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Immunity of Heads of State on the Retreat

Published on January 11, 2016        Author: 

On December 31st, the United Nations Dag Hammarskjöld Library tweeted that its most popular item of 2015 was my book entitled “Immunity of Heads of State and State Officials for International Crimes”.

The tweet immediately led to an intense controversy on Twitter and to a number of articles (here or here). Many commentators suggested that the book has been popular because diplomats were looking for ways to protect themselves or their bosses. Some also claimed that it was a poor sign for the United Nations. The news website Vox wrote: “The UN is full of delegates representing awful dictatorships, and the book that got checked out the most from the UN library was about … how to be immune from war crimes prosecution. That does not seem like a good thing!”

Numerous commentators jumped to the conclusion that the book was some sort of recipe to escape prosecution for international crimes. But in fact, rather than for criminal dictators, the book is for committed prosecutors and judges. In particular, it contains a detailed analysis of the relevant customary international law. Read the rest of this entry…

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The Establishment of a Special Court against Terrorism

Published on January 7, 2016        Author: 

The possibility of establishing an International Court against Terrorism is not entirely new, and has been addressed by scholars. However, the idea has recently regained momentum as a result of a joint Romanian-Spanish initiative (summarised here). In a recent event held at the T.M.C. Asser Instituut organised by the authors of this post, this possibility was thoroughly discussed. While indubitably commendable on the political level, such effort will face some very challenging legal issues. The aim of this post is to give a succinct account of these issues.

To begin with, a Special Court against Terrorism (SCT) will be confronted with a major question concerning its jurisdiction ratione materiae. What are the acts that would fall under its jurisdiction? What are the constitutive elements of a terrorist act subject to the SCT’s jurisdiction? Indeed, this issue is connected with a vexed question of international law, namely the definition of terrorism. As is well known, there is no generally accepted definition of terrorism under general international law. The perpetration of terrorist acts during wartime is (at least in part) covered by the law of armed conflict. Those acts may amount to war crimes in case of serious violations of international humanitarian law. The rules applicable to terrorist acts perpetrated in times of peace are more uncertain. The numerous UN conventions on terrorism only apply if the conduct in question falls under the relevant sector covered (e.g. nuclear terrorism).

The most famous attempt to define terrorism in times of peace in a general manner has been made by the Special Tribunal for Lebanon Read the rest of this entry…

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ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills Off Specific Direction (Again!)

Published on December 15, 2015        Author: 

Today the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia quashed the acquittal at trial of Jovica Stanisic and Franko Simatovic, the former head and deputy head of the Serbian secret police during the Milosevic regime, for crimes committed in Bosnia and Croatia. This is a big deal – S&S is the only remaining case tying the leadership of Serbia with crimes committed by Bosnian and Croatian Serbs. The trial judgment (itself delivered by a majority) was quashed on two grounds: that the Trial Chamber failed to properly reason its decision regarding the participation of the accused in a joint criminal enterprise, in particular because it could not analyse their mens rea without determining the actus reus of the JCE, and because it committed an error of law regarding the actus reus of aiding and abetting liability. (Appeals judgment here, press release and summary here.)

This latter point is one that will be familiar to our readers, as it is the (final?) nail in the coffin for the whole specific direction saga that we extensively covered on the blog (see here and here). As I explained in my earlier post, the ICTY Appeals Chamber went through an episode of self-fragmentation, with the Sainovic AC overruling the Perisic AC’s finding that specific direction was an element of the actus reus of aiding and abetting. As I also explained in that post, the outcome of S&S with respect to the specific direction point would essentially be determined by the composition of the Appeals Chamber in that case. That’s exactly what happened, with the S&S AC upholding the Sainovic rejection of specific direction by 3 votes to 2. The three votes in the majority were all judges who formed the Sainovic AC majority (Pocar, Liu, Ramaroson), while of the two judges in dissent one (Agius) was in the Perisic majority and the other (Afande) was not involved in the prior cases, and was hence the only unknown quantity.

Read the rest of this entry…

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European Court Tackles the Definition of Genocide

Published on October 27, 2015        Author: 

Last week the Grand Chamber of the European Court of Human Rights delivered a very interesting judgment in Vasiliauskas v. Lithuania, no. 35343/05, in which it examined in detail the definition of the crime of genocide. This is another one in a series of relatively sui generis cases, mostly coming from the Baltic states, dealing with historical crimes and pleaded under Article 7 ECHR, which incorporates the nullum crimen sine lege principle. The basic issue in the case was that the applicant, who worked for Soviet security services and was involved in the killings of Lithuanian partisans, was convicted of genocide by Lithuanian courts after the resumption of independence by the Baltic states, under the new Lithuanian Criminal Code which explicitly had retroactive application.

The question that the Court had to answer, therefore, was whether the applicant’s conviction for genocide was reasonably foreseeable, in light of international law as it stood in 1953, when the crime was committed. The Court comes out terribly split on the outcome, ruling by 9 votes to 8 that the conviction was not foreseeable and that there was a violation of Article 7.

The majority and the minority both agree that customary international law at the time prohibited genocide, in parallel to the 1948 Genocide Convention. They also agree that the list of protected groups under Article II of the Convention, which is reflective of custom, deliberately excluded political groups. Thus, a conviction for genocide would not have been sound if the Soviets were ‘merely’ destroying their political opponents in Lithuania. But where the case really gets interesting is in the analysis of the ‘in part’ element of genocidal intent. Here the minority believes that it is perfectly fine to first define the protected group as ethnic Lithuanians, and then further define a ‘part’ of that group as Lithuanian partisans or opponents of Soviet rule. The majority, on the other hand, believes that while the idea of the ‘part’ of a group could foreseeably be thought of in numerical terms in 1953, it was not foreseeable that the part could also be defined in qualitative terms, as emerged from the case law of modern international criminal tribunals (para. 177). This last point is I think highly problematic, since those individuals convicted for intending to destroy a part of a group in modern trials could then also say that their convictions violated nullum crimen, since their crimes also preceded in time the jurisprudence of the tribunals who convicted them – that this happened by 5 or 10 years rather than 50 seems entirely immaterial.

On the other hand, accepting the minority’s approach to the definition of a ‘part’ of a group would expand the scope of genocide far beyond the approach taken so far in international criminal law. For example, if the applicant had intended to kill all gay Lithuanians or all disabled Lithuanians this would, under the minority’s reasoning as far as I understand it, also constitute genocide, even though sexual orientation or disability are not covered by the Genocide Convention. Both groups would be ‘substantial’ in number, much like the partisans. But in any event the whole case is yet another demonstration of the highly problematic and morally arbitrary nature of the definition of genocide, which is unfortunately coupled with the peculiar political magic that the word has. An excessive focus on that crime by prosecutors, judges and in public discourse only serves to systematically devalue other crimes against international law, be it in Bosnia, Darfur, Cambodia, or indeed in Soviet-controlled Lithuania.

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Mass killings of Tamil civilians downplayed in new UN report on Sri Lanka, silent on genocide question

Published on October 19, 2015        Author: 

On 1 October 2015 the United Nations Human Rights Council adopted by consensus the resolution ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. The basis for the resolution was the release and consideration of the long awaited Office of the High Commissioner on Human Rights Investigation on Sri Lanka (OISL) (see here for links to the summary and full reports).

Strikingly, OISL moves away from the position on mass civilian killings taken in an earlier UN report of 2011 (see EJIL: Talk! post here) (2011 Report). According to the 2011 Report, tens of thousands of Tamil civilians were killed between January and May 2009, in particular the final weeks leading up to the government declaration of victory over the Liberation Tigers of Tamil Eelam (LTTE), who immediately prior to this period controlled most of the Tamil-dominated Vanni region of the island. The 2011 Report found reasonable grounds to believe that most of these deaths were the result of intentional government attacks directed at civilians, amounting to crimes against humanity. In contrast OISL neglects to estimate the scale of deaths and considers these same attacks only as a set of potential war crimes, denying their widespread and systematic nature against a civilian population. The new report which proposes a domestically-based war crimes mechanism shifts attention away from the most egregious international crimes of the government in the 2011 Report, leaving the demands of Tamil representatives for consideration of the crime of genocide unaddressed. 

The 2011 Report places these mass killings prominently, finding:

“… Between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the [LTTE-held] Vanni using large-scale and widespread shelling, causing large numbers of civilian deaths. This campaign constituted persecution of the population of the Vanni… The Government shelled on a large scale in three consecutive No Fire Zones, where it had encouraged the civilian population to concentrate, even after indicating that it would cease the use of heavy weapons. It shelled the United Nations hub, food distribution lines and near [ICRC] ships that were coming to pick up the wounded… It shelled in spite of its knowledge of the impact, provided by its own intelligence systems and through notification by the [UN], the ICRC and others. Most civilian casualties in the final phases of the war were caused by Government shelling…The Government also systematically deprived people in the conflict zone of humanitarian aid, in the form of food and medical supplies … To this end, it purposefully underestimated the number of civilians who remained in the conflict zone. Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days.” (p.ii. “Executive Summary, Allegations found credible by the Panel”)

Read the rest of this entry…

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An Assessment of the Colombian-FARC ‘Peace Jurisdiction’ Agreement

Published on September 29, 2015        Author: 

Last week Wednesday (23 September 2015), Colombian President Juan Manuel Santos met in Cuba with the leader of the Colombian guerrilla movement FARC (alias Timochenko”), to publicly announce the agreement to establish a ‘Special Peace Jurisdiction’ reached between the Government and FARC. This is certainly a milestone in the Colombian peace process. While many local and international voices (including heads of government and State of other countries) have been supportive of the agreement (see here and here), a few have rejected its content considering that it fosters impunity. Among those who have objected to the agreement is Alvaro Uribe, the former Colombian president who has been very vocal in his opposition to the conditions of the current peace process and has favored either a militaristic strategy or one in which the guerrilla members subject themselves to ordinary criminal sanctions.

Given the controversy, it is worth briefly considering whether, as critics pose, the agreement would be contrary to international law standards or whether, according to its supporters, it is not only consistent with them but proves to be a unique opportunity to end the conflict with the FARC, which is the oldest operating guerrilla movement in the world.

To do this, it is necessary to briefly look at the content of the agreement. In assessing the agreement, it is important to bear in mind that its full contents are yet to be revealed, and indeed some aspects have not been fleshed out fully. However, the main points of the agreement are set out in the oral statements of the Colombian President and, in greater detail, in written form in a joint communiqué, which can be found (in Spanish) in the official webpage of the Colombian presidency.

The “Special Peace Jurisdiction” – A new Mixed Tribunal?

The key aspect of the agreement is the creation of a judicial body –  ‘Special Peace Jurisdiction’ – which will make decisions on cases related to the Colombian armed conflict and has the capacity to issue extraordinary decisions that differ from those of ordinary criminal trials. The members of the body will mostly be Colombians but it will also include a few foreigners (point 3 of the joint communiqué). Read the rest of this entry…

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Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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