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Announcements: UN Audiovisual Library of International Law; LEES Doctoral Programme in International and Public Law, Ethics and Economics for Sustainable Development; Transnational Legal Theory Workshop

Published on September 8, 2019        Author: 

1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms Kristina Daugirdas on “How and Why International Law Binds International Organizations”, Mr. Gattās Abugattās on “The Process of Concluding Treaties in the 1969 Vienna Convention on the Law of Treaties” (in Spanish) and Ms Elvira Méndez Chang on “International Dispute Resolution” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

2. LEES Doctoral Programme in International and Public Law, Ethics and Economics for Sustainable Development (x6). The Universities of Milan, Rijeka and Maastricht are seeking six outstanding and committed students to carry out a three-year multidisciplinary research project, based at more than one participating university. The three universities are launching LEES, a new doctoral programme in International and Public Law, Ethics and Economics for Sustainable Development. With courses, seminars and scientific research activities entirely in English, it addresses the complexities involved in sustainable development, and uses an innovative multidisciplinary approach that combines the contributions of law, ethics, and economics. Application deadline is 14 October 2019. For further information, contact lees {at} unimi(.)it or see here

3. Transnational Legal Theory Workshop. The Transnational Law Institute at King’s College London in partnership with the International Law Department of the Graduate Institute Geneva is hosting a workshop in preparation of a special issue publication in Transnational Legal Theory on bringing the “human problem” back into transnational law: The example of corporate (ir)responsibility. The workshop will take place on 19 – 20 March 2020 at King‘s College LondonUsing the example of corporate (ir)responsibility, the workshop and subsequent publication aim to refocus transnational law as an analytical framework on the concrete, border-transcending human problems that it had once set out to address. Our objective is to critically discuss some of the ‘theory-focused’ developments in transnational law scholarship and explore the analytical benefits of a ‘problem-focused’ transnational law based on several case studies of corporate (ir)responsibility in thematic areas such as environmental protection, climate change and food security, resource extraction and global supply chains, migration, economic competition and crimes, data protection, cyber security and artificial intelligence. The workshop is free to attend, and a limited number of travel and accommodation stipends are available upon request. In case of interest, please submit an abstract of your paper proposaland a short biography by 1 October 2019. Draft papers will need to be provided by 15 February 2020 for circulation (final papers circa 8000 words). For more information and proposal submissions, please contact bringingthehumanproblemback@gmail.com. For the complete call for papers, please see here or here.  

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Filed under: Announcements and Events
 

CERD Reaches Historic Decisions in Inter-State Communications

Published on September 6, 2019        Author: 

On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD) concluded its 99th session, in which it reached a historic decision on jurisdiction and admissibility in two of the three inter-State communications submitted under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination, Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates. The Committee decided that it has jurisdiction in the two communications and has also declared them admissible. The Committee’s Chairperson will now appoint an ad hoc Conciliation Commission in the two communications in compliance with Article 12 of the Convention, whose good offices will be made available to the States concerned with a view to an amicable solution of the matter. In the third inter-State communication, Palestine v Israel, the Committee decided to postpone its consideration of the issue of jurisdiction to its 100th session, to be held in November-December 2019.

The Chair of the Committee stressed that ‘the decisions on the inter-State communications were the first such decisions that any human rights treaty body had ever adopted’. The tone is markedly different from that adopted at the conclusion of its previous 98th session on 10 May 2019:

The Committee had examined three interstate communications submitted under Article 11 of the Convention: one by Qatar against Saudi Arabia; one by Qatar against the United Arab Emirates; and another by the State of Palestine against Israel.  While it had held hearings on these communications, the Committee had decided not to take any decisions, due to the legal complexity of the issues broached and a lack of resources.

This somewhat striking statement was quoted in proceedings before the International Court of Justice on 7 June 2019 by the representative for Ukraine: Read the rest of this entry…

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Hospital Targeting: A Remedy is Required, Not Counter-Effective Wishful Thinking

Published on September 5, 2019        Author: 

Though Gordon and Perugini deserve praise for casting light on the serious problem of targeting hospitals, their analysis and conclusion suffer from two ills. They misinterpret the law related to the targeting of hospitals, and they turn a blind eye to all the empirical data relating to the unacceptable hazards and damage caused to health care during armed conflicts. Their recommendation seems to be detached from the world we all live in.

The prevailing law is relatively clear, and it grants a strongyet contingent protection to hospitals. As I mentioned in my Reply,“Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’”,the protection granted to hospitals has both institutionally inherent and personal justifications. The former derives from their humanitarian mission and is contingent upon their actual use in light of this purpose. The second justification, namely the vulnerability of their patients and medical staff, is always present. These weaknesses require special scrutiny and legal adjustments, and the damage multiplier of the sick and wounded should be taken into consideration when assessing the collateral damage that might be caused to them. Gordon and Perugini seem to misunderstand this roadmap of the law, which is not subject to interpretation by states, as they argue.

They appear to ignore the fact that the law grants different layers of protection to hospitals: the special institutionalprotection granted to any hospital, the cumulative requirements for identifying an object as a legitimate military target, and the constraints of the proportionality request in IHL. I have the impression that Gordon and Perugini also ignore the precautionary requirements in IHL, relating to all civilians in general and the one afforded only to medical units in particular. Their misinterpretation turns all these different layers of protection into a single one that can very easily be removed by claiming that the attacked hospital is a shielding hospital. Indeed, another mistake they seem to make relates to the burden of proof. The law is not satisfied merely with an attacker’s arguments as regards a shielding hospital; a heavy burden lies on its shoulders to prove all the facts justifying the attack. Gordon and Perugini appear to assume, unfoundedly, that the burden lies on the attacked. Furthermore, by limiting their prism to constraining attackers, they don’t pay any attention to the binding obligation on all belligerents, which is not limited to the attacker, to insulate hospitals from the hazards of war to the extent possible. The belligerent who controls the hospital’s territory thus is required by law to take concrete measures aimed at achieving this goal.

Indeed, as presented in my Reply, the law as it stands allows the targeting of hospitals only as an exception and not as a norm, as argued by Gordon and Perugini. Unfortunately, in the absence of effective international law enforcement, the shielding argument can easily serve as a pretext for transgression, a hazard that most in bello and ad bellum rules are subject to. But the answer to this manipulation challenge doesn’t lie in changing a normatively desired rule – e.g., cancelling the right of self-defense – but rather in improvinglaw enforcement and compliance. This would require that the facts be established in each case of attack and the law then applied to it, distinguishing between the bona fide mistakes of law-abiding militaries and intentional criminal targeting. 

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Filed under: EJIL Analysis
 

Comments on Coastal and Flag State Jurisdiction in the M/T “San Padre Pio” Dispute

Published on September 3, 2019        Author: 

The M/T “San Padre Pio” dispute between Switzerland and Nigeria arose following the interception and arrest by the Nigerian navy of the M/T “San Padre Pio” – a Swiss flagged tanker – while this was engaged in one of several Ship-to-Ship (STS) transfers of gasoil in the vicinity of the Odudu Oil Field within Nigeria’s Exclusive Economic Zone (EEZ).  Although the facts are not entirely clear at this stage, it appears that the M/T “San Padre Pio” transferred gasoil not directly to the Odudu Terminal (for which the gasoil was ultimately intended) but to other transport vessels by way of STS transfers.  These other transport vessels then transported the fuel a short distance to the Odudu Oil Field where they made direct transfers to installations located therein.  Switzerland contends that the “San Padre Pio” was supplying gasoil to Anosyke, the Nigerian company with which it had a supply contract.  The Odudu Oil Field is operated by Total.

Following a request for provisional measures submitted by Switzerland to the International Tribunal for the Law of the Sea (ITLOS) under Article 290(5) of the Law of the Sea Convention (LOSC), on 6 July 2019 ITLOS ordered Nigeria to release the M/T “San Padre Pio”, its cargo, Master and three officers (Order, para 146).  This provisional measures order was insightfully examined by Yurika Ishii here.  The purpose of this post is to examine Swiss and Nigerian arguments about coastal and flag State jurisdiction in anticipation of the Annex VII arbitral tribunal’s decision on the substance of the dispute.  The forthcoming analysis will be undertaken in view of the facts as presently known and in light of the most relevant Law of the Sea Convention (LOSC) provisions. 

In his Separate Opinion, Judge ad hoc Murphy considers that it is “difficult to assess whether the situation [in the “San Padre Pio” dispute] is best approached as simply a STS transfer, which normally is understood as a transfer of cargo between two seagoing vessels, or is best approached as offshore bunkering, which normally is understood as the replenishment by one vessel of a second vessel’s fuel bunkers with fuel intended for the operation of the second vessel’s engines”.  Since the M/T “San Padre Pio” never provided gasoil directly to the oil field installations or to vessels for use as bunker fuel in their own propulsion, this post will consider the type of activities which the M/T “San Padre Pio” was engaged in as STS transfers, not as bunkering operations. Read the rest of this entry…

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Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?

Published on September 2, 2019        Author: 

On 20 June 2019, the United States conducted a major cyberattack against Iran in response to Iran’s (alleged) attacks on oil tankers in the Hormuz Strait and the downing of an American surveillance drone. The attack was widely reported at the time, but on 28 August the New York Times published important new details, which included information about the legal-strategic thinking of the Americans. Specifically, it was reported that the US cybercampaign against Iran was “calibrated to stay well below the threshold of war”. Translated into legalese, this seems to imply that the Americans aim to keep their activities at a level that undoubtedly fall short of legal thresholds like article 2(4) of the UN Charter, which defines use of force, and common article 2 of the Geneva Conventions, which de facto triggers the laws of war. In this post, I discuss whether the Americans succeeded in keeping their distance from such thresholds.

The attack

In the original reporting on the attack by Yahoo! News, it was noted that the operation targeted “an Iranian spy group” with “ties to the Iranian Revolutionary Guard Corps”, which supported attacks on commercial ships in the Hormuz Strait. The precise object of attack was not specified, but it was mentioned that the group had “over the past several years digitally tracked and targeted military and civilian ships passing through the economically important Strait of Hormuz”.

The New York Times’ report explains that the cyberattack successfully “wiped out a critical database used by Iran’s paramilitary arm to plot attacks against oil tankers and degraded Tehran’s ability to covertly target shipping traffic in the Persian Gulf, at least temporarily”. The Iranians, it is noted, are “still trying to recover information destroyed in the June 20 attack and restart some of the computer systems — including military communications networks — taken offline”. Accordingly, the attack seems to have crippled the targeted system in a way that has taken it offline and, presumably, rendered it useless for months. The effects of the attack were “designed to be temporary”, officials said, but had “lasted longer than expected”. In terms of the specific target of the attack, it was reported that the target was the Iranian Revolutionary Guards’ intelligence group. Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part III)

Published on August 30, 2019        Author: 

In earlier posts in this series (here and here) I have examined the ICC Office of the Prosecutor’s (OTP) great successes and failures of July 2019. A successful conviction in Ntaganda and a dismissal of its case in Gbagbo and Blé Goudé. I’ve noted a number of important differences between the two cases and in this post I’d like to reflect on the way forward. First, I will ask what lessons appear to have been taken to heart in the OTP’s new strategic plan. Second, I’ll offer a few brief concluding thoughts to this series of posts.

What has the OTP learned? The Strategic Plan 2019-2021

There are a number of encouraging signs in the new OTP Strategic Plan. Broadly, it acknowledges that preparing high-quality cases with the best chances of success in Court will require pursuing fewer cases, those cases may need to be narrower, and there will need to be a process for situations under preliminary investigation to be closed. Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court (Part II)

Published on August 29, 2019        Author: 

In this three part series of posts I’m reflecting on the lessons to be learned from the sharply contrasting results last month at the International Criminal Court with a conviction entered in Ntaganda and reasons finally being released for the dismissal of the Prosecution case in Gbagbo and Blé GoudéThe former involved a rebel commander accused of being a co-perpetrator of attacks against civilians, including sexual offences and sexual enslavement. Yesterday, I noted that in Ntaganda the ICC Office of the Prosecutor (OTP) benefitted from its long engagement with, and consequent deep knowledge of, the relevant conflict. It also ran a well-prepared case targeting a rebel leader (as both a direct and indirect perpetrator) and had framed charges based in common facts and a limited number of key incidents. Gbagbo and Blé Goudé involved allegations that the former president of Côte D’Ivoire organised attacks upon civilian supporters of his principal political rival in post-election violence. The key question, of course, is what accounts for the difference in outcomes?

Today I will examine Gbagbo and Blé Goudé in some detail, and tomorrow I will ask – looking at the OTP’s new strategy document – whether the right lessons have been learned. 

What went wrong in Gbagbo and Blé Goudé

The majority in the Gbagbo and Blé Goudé Trial Chamber for the no case to answer motion were Judges Henderson and Tarfusser, Judge Herrera-Carbuccia dissenting. For reasons of space, I will focus on the Henderson and Tarfusser separate opinions (although technically, Judge Tarfusser concurs in Judge Henderson’s reasons for dismissing the case which makes his opinion the Chamber’s “reasons”). In sum, though, their account of what went wrong for the Prosecutor was: a poorly conducted investigation was conducted which then had to underpin an inflexible and overly simplistic case theory, which was in turn poorly executed in the courtroom. “In a nutshell, the majority acquitted Mr Gbagbo and Mr Blé Goudé because the way in which the Prosecutor depicted their actions and omissions from a legal point of view could not be sustained by the evidence” (Judge Henderson, Preliminary remarks, para 2). These opinions do not make for comfortable reading. Read the rest of this entry…

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A Tale of Two Cases: Lessons for the Prosecutor of the International Criminal Court? (Part I)

Published on August 28, 2019        Author: 

Last month was a mixed one for the ICC Office of the Prosecutor. On 8 July 2019 it appeared that the ICC “had found its footing”, with a Trial Chamber delivering a staid, methodical judgment in Ntaganda. This was a double victory for the OTP: a conviction of a rebel leader in a truly horrific conflict; and a public affirmation that it could present a well-run and coherent case. However, on 16 July 2019, reasons for the ‘no case to answer’ decision were released in Gbagbo and Blé Goudé (‘Gbagbo’) in which the majority (Judges Henderson and Tarfusser) were scathing in their assessment of the OTP’s performance. Then on 26 July 2019 the OTP released the final version of its Strategic Plan 2019-2021 which noted, with some understatement, there has been “a period of mixed results in court” and “significant setbacks”. In fairness to the OTP no-one, not even the majority in Gbagbo, doubts that the OTP has hard-working and dedicated staff prosecuting cases of great complexity (see para 9 of the Reasons of Judge Henderson). The question is, how can the same Office produce such different results? A key problem in Gbagbo was that the majority of the Trial Chamber were completely unpersuaded by the Prosecutor’s ‘system of evidence’ and case theory. Yet, this was not a problem in Ntaganda. What accounts for the difference?

Over three blog posts I propose to look at: first, what went right in Ntaganda; second, what went wrong in Gbagbo; and, third, to ask whether the new OTP Strategic Plan has learned the right lessons and set the right priorities. I will also reflect in that final post on whether these results pose a significant challenge to my recent posts critical of ICC performance (spoiler alert: no, they do not). Read the rest of this entry…

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How International Law Restricts the Use of Military Force in Hormuz

Published on August 27, 2019        Author: 

We await whether an allied action will protect shipping in the Persian Gulf, and whether it will be led by the USA or by European states. The UK’s new government will support US action, while at least some other European states are reluctant to be seen as supporters of US aggressive policy towards Iran. Political arguments aside, there are important international law concerns with participation in such action, whether American or European-led (see also this recent post by Hartwig).

Absence of a Security Council mandate

The first concern is that such an action would not have a UN mandate. The Security Council can authorize military actions to ensure peace and security, even setting aside other rules of international law. Admittedly, protection of shipping might not fall under the Security Council’s competencies to maintain peace and security. Regardless, a mandate for a military action in the Persian Gulf is in any case politically unlikely.

The law of the sea

Without a mandate from the Security Council, there are strong arguments against the legality of such action. Read the rest of this entry…

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Filed under: Law of the Sea, Self Defence
 
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Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervention in Cyberspace

Published on August 26, 2019        Author: 

Introduction

In recent years we have witnessed persistent attempts to interfere in elections by using cyber means. Russia’s cyber interference in the 2016 US presidential election is a prime and perhaps the most discussed example but it is not the only one; other incidents include electoral interference in the Netherlands, the UK, France and Germany to name just a few (see here). Such interference mainly consists of attacks on electoral infrastructure and operations to manipulate voting behaviour. For example, Russia’s electoral interference in the 2016 US election consisted of ‘hack and leak’ operations to ‘expose, disgrace, or otherwise undermine a particular individual, campaign, or organisation in order to influence public opinion during an election cycle’ (see here) and disinformation operations defined as ‘false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm’ including harm to the ‘democratic political processes and value’. (see here at 10).

International law commentators struggled to qualify such operations. Although the majority placed them within the framework of the principle of non-intervention, they concluded that they do not satisfy its conditions and in particular that of coercion (indicatively see here and here).

Against this background, I argue that electoral cyber interference can violate the non-intervention principle. I will do this by reinstating the link between the principle of non-intervention and the principle of self-determination and by introducing control as the baseline of coercion. Before I do this, I will explain how international law traditionally construes intervention in order to expose the regulatory gaps that emerge in cases of electoral cyber interference. Read the rest of this entry…

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Filed under: Self-Determination