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Guilty but Free: The ICC Renders its First Contempt Case Judgment

hOn 19 October 2016, the Trial Chamber VII of the International Criminal Court issued its verdict in the case The Prosecutor v Jean-Pierre Bemba Gobo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, Narcisse Arido (Bemba et al.) – the ICC’s first contempt case.

The five men had been accused of offences against the administration of justice under Article 70 of the Rome Statute (RS) in the Main Case against Jean-Pierre Bemba. They were (to different degrees) found guilty by the Chamber for corruptly influencing 14 defence witnesses in the Main Case, presenting false evidence, and giving false testimony when under an obligation to tell the truth. Mr Bemba (the accused in the Main Case), his lawyer Mr Kilolo, Bemba’s defence team’s case manager Mr Mangenda, Mr Babala, a political ally of Bemba’s, and Mr Arido, Bemba’s financier, had briefed the witnesses, provided them with false testimonies, payed them and promised them relocation to Europe if they testified in Bemba’s favour.

Attending the hearing on Wednesday 19 October, the authors of this post did not expect to see more than a normal delivery of judgment. Eventually, however, we listened to a vivid argument on whether to remand in custody of the ICC’s detention centre the accused Mr Kilolo, Mr Mangenda, Mr Babala and Mr Arido, while awaiting their sentencing judgment. Bemba, having been sentenced to 18 years of imprisonment in the Main Case, is in custody anyway. Both, the Prosecution and the Defence presented their arguments as to whether detention was appropriate and allowed by law, in which the latter deplored – through a noteworthy “we do not dine with the judges” – that, unlike the judges, they had not been informed of the Prosecution’s intention to file this application. Eventually, the Chamber rejected the application, relying on its assessment that there was no risk that the four accused wouldn’t show up to any subsequent Court meeting.

This post examines the issues mentioned during the discussion between the Prosecution and the Defence. It seeks to clarify in which circumstances an accused can be detained after a conviction, although a sentence has not yet been pronounced. Read the rest of this entry…

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Editorial Changes at EJIL:Talk!

Published on November 1, 2016        Author: 
Monica Hakimi

Monica Hakimi

It is a pleasure to announce additions to the team of editors at EJIL:Talk! We are delighted to announce three new Contributing Editors to the blog. They are:

Monica Hakimi who is Professor of Law at the University of Michigan School of Law where she was until recently, Associate Dean for Academic Programming. She previously served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State where, in addition to other tasks, she served as counsel before the Iran-U.S. Claims Tribunal and worked on cases before the International Court of Justice and U.S. federal courts and agencies.

Lorna McGregor

Lorna McGregor

Lorna McGregor, who is Professor at the University of Essex Law School where she is also Director of the Human Rights Centre at Essex University. Lorna is Co-Chair of the European Society of International Law’s Interest Group on Human Rights and a Commissioner of the UK Equality and Human Rights Commission. She is currently leading a number of funded research projects including acting as Co-Director of an ESRC Large Grant on Technology, Big Data and Human Rights; Principal Investigator of a Nuffield-funded project on the role of National Human Rights Institutions in Complaints-Handling; and a Co-Investigator on a British Academy Newton Fund grant on The Effects of International Human Rights Law on Public International Law and its Sub-Branches.

Andreas Zimmermann

Andreas Zimmermann

Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany, and Director of the Potsdam Centre of Human Rights. He has advised the German government in various capacities including being a member of the Advisory Board of the German Ministry of Foreign Affairs on United Nations issues as well as of the Advisory Board on International Law. He has been counsel in several cases before the International Court of Justice and inter-State arbitration. Has also been judge ad hoc at the European Court of Human Rights.

They have written in the European Journal of International Law and are previous contributors to the  blog. We look forward to their contributions over the coming months and years. Remaining on the team of contributing editors are Anne Peters and Christian Tams.

Rotating off the team of contributing editors are Matthew Happold and Antonios Tzanakopoulos. We owe a debt of gratitude to Matthew and Antonios for their contributions to the blog over the past few years. We hope they will continue to write for the blog as guest contributors.

We are also very grateful indeed to Iain Scobbie whose tenure as a co-editor of the blog ended earlier this year. Also leaving us earlier this year was Geraldo Vidigal who gave really valuable service as Associate Editor before moving on to take up a position in the Legal Service of the World Trade Organization.

Geraldo was replaced as Associate Editor by Dr Helen McDermott who is a research fellow at the Individualisation of War project at the European University Institute, an Associate of the Oxford Martin Programme on Human Rights for Future Generations and a Visiting Fellow at the Blavatnik School of Government at the University of Oxford.

We welcome the new members of the team!

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Filed under: EJIL
 

Launch of Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict

Published on October 31, 2016        Author: 

In many, if not most, armed conflicts, far more deaths occur as a result of the humanitarian crisis created by the conflict rather than from hostilities or the use of force (see this useful study, at p. 842). In addition to those who die as a result of a lack of food, water, access to medical care or adequate sanitation, untold suffering is caused in conflicts across the globe to millions of other civilians. However, in many recent conflicts humanitarian actors have faced serious challenges in delivering much-needed relief supplies and services to civilians in need. The United Nations Secretary-General, in his recent reports to the Security Council on the Protection of Civilians, has identified improving access for humanitarian operation as one of the five “core challenges” to enhancing the protection of civilians in armed conflict (see eg S/2012/376 (paras. 57-63); S/2015/453 (para. 7). In a November 2013 report to the Security Council [S/2013/689, para. 80], the Secretary General called for further analysis of the issue of arbitrary withholding of consent to humanitarian operations and the consequences thereof. He instructed the UN Office for the Coordination of Humanitarian Affairs (OCHA) to engage with a range of actors to examine the relevant rules and options for guidance in this area. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations (both of which I co-direct) to carry out this exercise. We engaged in a series of expert consultations which took place in Oxford, in addition to informal discussions in Geneva and New York with officials from a number of international agencies and NGOs, with the aim of providing a restatement of the international law rules.

This process has resulted in the production of the Oxford Guidance on the Law Relating to Humanitarian Relief Operation in Situations of Armed Conflict (which is available here). It was a pleasure to launch the Oxford Guidance at UN Headquarters in New York last week, and also in Washington DC. In his May 2016 report [S/2016/447, para. 34] report to the Security Council on the Protection of Civilians, the Secretary General stated that:

“The forthcoming Oxford guidance on the law relating to humanitarian relief operations in situations of armed conflict, which the Office for the Coordination of Humanitarian Affairs commissioned on my request, should enhance understanding of such a legal framework and inform policies to improve humanitarian access.”

This point was reiterated in the Foreword to the Guidance by the UN Under-Secretary General for Humanitarian Affairs who stated that:

“The present Guidance will assist a variety of actors concerned with humanitarian relief operations, including parties to armed conflict, other states, international and non-governmental organizations seeking to provide humanitarian assistance, the United Nations Security Council and General Assembly and other relevant bodies, legal practitioners, scholars and the media.”

Read the rest of this entry…

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A Note on Civility from the Editor in Chief

Published on October 30, 2016        Author: 

As Editor in Chief of EJIL I also hold overall responsibility for EJIL Talk and EJIL Live — all part of the EJIL Community. I want to post a reminder about our policies in all EJIL publishing vehicles: EJIL, EJIL Talk! and EJIL Live. We welcome robust and critical analysis and comment — including the slaughtering of Holy Cows. We welcome both the harsh and the whimsical. But it has always been the policy of EJIL that we endeavor to maintain a tone that does not offend good taste and that in interpersonal exchanges — in our debates in EJIL and in comments on EJIL Talk — disagreements are expressed in a non disagreeable manner.

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Announcements: CfS UCL Journal of Law and Jurisprudence; Chatham House Meeting on the relationship between IHRL and IHL

Published on October 30, 2016        Author: 

UCL Journal of Law and Jurisprudence Call for Submissions, Volume 6, Issue 1 (Spring 2017). The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the first issue of 2017. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 21 November 2016. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website. For any queries, please e-mail the academic editors.

Chatham House Meeting on the Relationship between IHRL and IHL. The International Law Programme at Chatham House is hosting a meeting which will provide practical guidance on the relationship between international human rights law and international humanitarian law. This meeting will coincide with the launch of the ‘Practitioners’ Guide to Human Rights in Armed Conflict’. For details about the event and to enquire about registering see here. For further information about the book see here.

 

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Russia’s Supreme Court Rewrites History of the Second World War

Published on October 28, 2016        Author: 

Introduction and Background

On September 1 2016, exactly 77 years since the outbreak of the Second World War, Russia’s Supreme Court upheld the conviction of Perm resident Vladimir Luzgin under Article 354.1 of the Russian Penal Code ­- Rehabilitation of Nazism. Luzgin had the unpleasant distinction of being the first individual prosecuted under the new provision of the code criminalizing:

[1] Denial of facts, established by the judgement of the International Military Tribunal…, [2] approval of the crimes adjudicated by said Tribunal, and [3] dissemination of knowingly false information about the activities of the USSR during the Second World War, made publicly.

Two months earlier, Luzgin, a 38-years old auto mechanic, was fined 200,000 rubles (roughly €2,800) for reposting on the popular Russian social networking site vkontakte a link to an online article containing numerous assertions in defense of Ukrainian nationalist paramilitaries that fought during the Second World War. The basis for Luzgin’s conviction lay in the statement that unlike the nationalists, “the Communists…actively collaborated with Germany in dividing Europe according to the Molotov-Ribbentrop Pact,” and “Communists and Germany jointly attacked Poland and started the Second World War on 1 September 1939!”

In this post, we address some of the problematic aspects of this “memory law” and the Supreme Court’s decision with respect to freedom of expression in Russia; the Russian Constitution protects this fundamental right expressly, and through incorporation of international customary norms and rules embodied in the European Convention on Human Rights (ECHR), all of which the Supreme Court eschewed in its ruling. Prior to addressing the decision and its implications however, some words are in order on the drafting history of the law and its putative aims. Read the rest of this entry…

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Russia’s Unilateral Suspension of the 2013 Agreement on Nuclear Cooperation with the United States

Published on October 27, 2016        Author: 

Amidst the breaking-down of cooperation between the USA and Russia in addressing the war in Syria, the continuation of the Ukrainian crisis and the US charges against Russia for its alleged interference in the American Presidential elections, the sanction tit-for-tat between the two Powers continues. The most recent episode occurred during the first week of October, when the Russian Federation decided to suspend – and in one case terminate – various nuclear-related agreements between itself and the United States of America. Russia’s unilateral decisions raise several questions, notably with regard to the law of treaties; however it is Russia’s justification for suspending the 2013 Agreement on Cooperation in Nuclear and Energy Related Scientific Research and Development (hereafter the ‘2013 Agreement’) that caught my attention and on which I wish to comment. It so happens that the Kremlin justified the suspension as a countermeasure in response to the American sanctions against it.

The 2013 Agreement‘s aim is to provide a stable and reliable framework within which the USA and Russia can cooperate in fields of research and development regarding the peaceful use of nuclear energy. Because of the vague wording of the 2013 Agreement, it is difficult to determine what the exact obligations of the parties are and whether their fulfilment allows more leeway. Under these circumstances, one could consider Russia’s suspension as simply symbolic and another indication of the cooling of relations with the USA. Nevertheless, in a document published by the Russian State, the suspension is claimed to be a countermeasure against the sanctions adopted by the US, implying that Russia views its own action as wrongful. By invoking the magic word ‘countermeasures’, the Russian government is summoning a circumstance precluding wrongfulness. As is well known, in order for Russia to justifiably adopt such measures, the (main) condition that needs to be respected is the commission of a wrongful act by the United States against the Russia Federation. It follows that the legality of Russia’s suspension (or the preclusion of the wrongfulness of that act) would depend – in part – on the legality of the American sanctions that Russia is objecting to.

Russia claims that, as a result of the sanctions against it, the US is responsible for a ‘substantial violation of the terms of the [2013] Agreement’ and specifically Articles IV(3) and X(1). This breach would result from a letter sent in April 2014 by:

‘the US Department of Energy Bureau at the US Embassy in Moscow (…) announcing the suspension of nuclear energy cooperation in connection with the events in Ukraine’ and the subsequent cancellation of ‘bilateral meetings and events related to nuclear energy’.

Hence, the sanctions would have directly ‘affected the areas of cooperation under the Agreement’. In Russia’s view, the continuation of the US sanctions – which includes the violation of the Agreement – ‘requires the adoption of countermeasures in relation to the US’ (all the above quotes are taken from the Russian government decision). In another comment, the Russian Ministry of Foreign Affairs indicated that ‘Russia will consider the possibility of reversing its decision to suspend the Agreement when the United States reaffirms its willingness to fully restore compliance with the Agreement’. Read the rest of this entry…

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12 Years an Asylum Seeker: Failure of States to Deal With Asylum Applications May Breach Applicants’ Right to Respect for Their Private Life

Published on October 26, 2016        Author: 

In its ground-breaking B.A.C. c. Grèce judgment of October 13 2016, the European Court of Human Rights found that Greece violated the right of an asylum seeker to respect for his private life under Article 8 ECHR due to the failure of the Greek authorities to effectively deal with his asylum application. Whilst the facts of the case are outright extraordinary, the overall significance of the case cannot be downplayed. For the first time, the Court accepted that Article 8 ECHR may be breached due to a State’s inactivity in respect of an asylum application.

The applicant, a Turkish national, had been arrested by the Turkish authorities, and after being charged with an offence against the constitutional order on account of his pro-communist and pro-Kurdish convictions, was placed in solitary confinement. Following a 171-days long hunger strike, he was set free. On 15 January 2002, having entered Greece, he applied for asylum, yet the application was dismissed. The applicant brought an appeal against this decision. According to the law in force at the time, decisions upon appeal were made by the Minister for Public Order within a period of 90 days, following an advisory opinion by a ‘Consultative Asylum Committee’. Indeed, the Committee issued an opinion favorable to the applicant on 29 January 2003.

From this date and for a period of 12 years (up until the application before the Court), the Greek state refrained from reaching any decision on the asylum application. The applicant spent these 12 years in Greece as an asylum seeker denied – in accordance with domestic law – the right to vocational education, to obtain a driver’s license, to open a bank account. The Greek authorities, including the Greek police, nonetheless, did not fail to attest on several occasions that the application was pending, thus renewing his asylum applicant’s identification card. In the meantime, the Turkish authorities sought to extradite the applicant to Turkey. Following a legal battle before the Greek courts the extradition request was defeated. One should also add that the applicant’s wife joined him in Greece in 2003 for a period of 9 years, during which a child was born unto the couple. Still, the applicant was deprived of the right to family reunification, and the situation of the couple was only regularised – somewhat – following the issuance of a temporary work permit to the applicant’s wife in 2008. Eventually, she decided to return to Istanbul and the couple divorced. Read the rest of this entry…

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A Critical Assessment of Colombia’s Advisory Request before the IACtHR – and Why It Should Be Rejected

Published on October 25, 2016        Author: 

On 14 March 2016 Colombia filed an Advisory Opinion request before the Inter-American Court of Human Rights (IACtHR). The request poses three questions, which can be summarised as follows: The first question asks whether the American Convention on Human Rights (ACHR) entails extra-territorial obligations for a State when interpreted in light of a “treaty-based environmental protection system to which that State is a party [also],” and if it does, what are its incidences vis-à-vis the elements of state responsibility (attribution and breach).

The second question is a restatement of the first one, but zeroes in on conduct of states that might do “serious damage to the marine environment” and the implications thereof for inhabitants of “the coast and/or islands of another State party” under articles 4(1) (right to life) and 5(1) (personal integrity) ACHR; in other words, the question enquires whether, and if so how, IHRL might serve as vehicle for the extra-territorial application of IEL.

Building upon the ICJ’s environmental law developments in Pulp Mills, a final question enquires whether environmental obligations under articles 4(1) and 5(1) ACHR entail the duty to conduct environmental impact assessments (EIA). Read the rest of this entry…

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Take the Long View of International Justice

Published on October 24, 2016        Author: 

Last week there was much coverage about South Africa’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC), as well as potential withdrawals by other states, including Burundi. The dominant theme in the media coverage was that this is a “major blow” or “devastating blow” to the ICC. I am hesitant about some of the gladiatorial metaphors. I suggest there are differences between a setback for the International Criminal Law (ICL) project, for human beings, and for the ICC. I also suggest a measured perspective, placing these events within a very long, turbulent, contested tale of human governance.

Historic perspective on a long-term project

Our lives are short and history is long. The tumults of our times loom correspondingly large to us, but the longer view can put crises in context. For example, many current criticisms of ICL reflect impatience and indignation that a fully-fledged, mature, international rule of law with global compliance has not been built in a few years. But it took centuries to produce current configurations of state governance and rule of law – the idea that human institutions might try to provide a better approximation of justice in human lives. And even after centuries of practice, errors, disasters, lessons and successes, the state law system is very, very far indeed from perfected. ICL itself is one effort to ameliorate to those flaws. We happen to be alive during a significant renovation in a centuries-old system.

My point is: past innovations in human governance took centuries, not months. They involved much contestation. If people see ICL in historical perspective, they will not expect quick fixes or linear progress. ICL entails politically, sociologically, legally and intellectually difficult and contestable changes to entrenched systems. There will be lessons to learn and criticisms to absorb. If it succeeds, it will do so after lurches, setbacks and pushbacks. Comfortingly, on the biggest scale, human governance has been moving in a positive direction for a long time. Read the rest of this entry…

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