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On the Entirely Predictable Outcome of Croatia v. Serbia

Published on February 6, 2015        Author: 

This week the International Court of Justice delivered its judgment in the genocide case brought by Croatia against Serbia. The result was entirely predictable: the Court quite correctly dismissed both the Croatian claim and the Serbian counterclaim. I wrote about this on the blog before (here and here), and have also written a reaction piece intended for a lay audience for the Serbian online magazine Pescanik, which is available in English here. The nationalist reactions to and misinterpretations of the judgment in Croatia and Serbia have been equally predictable, if no less tiresome.

For its part, the Court displayed a laudable degree of both restraint (which is after all de rigueur for the ICJ) and consensus (not so much). The Court’s general approach was entirely consistent with its 2007 Bosnian Genocide judgment: repeatedly finding that acts that qualified as the actus reus of genocide were committed, but without the necessary mens rea (genocidal intent), so that there was no genocide, while the Court had no jurisdiction to determine state responsibility for any other internationally wrongful act. While there are some interesting paragraphs regarding the assessment of evidence etc, the Court basically completely followed the factual findings of the ICTY (including the controversial Gotovina appeals judgment), and rightly so. By following this general approach the Court entirely avoided some of the most interesting legal issues raised in the case, for example the question of state succession to responsibility (i.e. whether Serbia could have succeeded to the responsibility for a wrongful act of its predecessor state, the SFRY), or the question of the attribution to Serbia of the conduct of the Croatian Serb separatists by virtue of the relevant control tests.

The one question that did divide the Court was the issue of its temporal jurisdiction under the compromissory clause in Article IX of the Genocide Convention. By 11 votes to 6 the Court found that it did have the jurisdiction to examine Serbia’s responsibility for genocide allegedly committed by the SFRY (i.e. before Serbia’s independence) by virtue of succession to responsibility, while finding that it ultimately did not need to decide on the succession question because no genocide was committed (most notably during the destruction of the town of Vukovar by the Yugoslav National Army). A number of judges wrote separately on this point of the temporal extent of the Court’s jurisdiction.

On all other matters the judges were either unanimous or virtually unanimous. Even the Serbian judge ad hoc voted for the dismissal of the Serbian counterclaim, while the Croatian claim was rejected by 15 votes to 2, the two being the Croatian judge ad hoc (who wrote a rather half-hearted three-page dissenting opinion, which doesn’t really say much except that he dissents) and Judge Cancado Trindade. Judge Cancado Trindade indeed did not disappoint; in an awesome display of his Cancadotrindadeness he wrote an opinion of some 142 pages (the Court having written a total of 153), dissenting about, well, everything. The summary of his conclusions runs from ‘first’ to ‘fourty-fifth,’ and in Latin, as is only proper (that’s quadragesimus quintus for you h8ers out there).

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Too Soon for the Right to Hope? Whole Life Sentences and the Strasbourg Court’s Decision in Hutchinson v UK

Published on February 5, 2015        Author: 

Monday’s judgment by the European Court of Human Rights in Hutchinson v UK may have slowed progress towards the goal of ending whole-life sentences in the Council of Europe. That goal appeared to be edging closer after the Grand Chamber’s 2013 ruling in Vinter & Ors v UK, but Monday’s judgment suggests that it is still too soon to speak of a ‘right to hope’ (to use the language favoured by Judge Power-Forde in his separate opinion in Vinter). The court’s Fourth Section held in Hutchinson that the prospect of executive review of the applicant’s sentence (in the form of a discretion exercisable by the Secretary of State to release prisoners in exceptional circumstances) satisfied the requirements of Article 3.

The applicant in Hutchinson was sentenced to life imprisonment upon conviction of burglary, rape and triple murder. He argued that, following Vinter, whole life sentences with no possibility of parole are inhuman and degrading. However, the Grand Chamber’s judgment in Vinter left a loophole, and the court in Hutchinson marched through it. The loophole was the discretion of the Secretary of State for Justice under s30(1) of the Crime (Sentences) Act 1997 to release life prisoners on licence in certain circumstances. In the language of the statute, the circumstances must be ‘exceptional’ and they must warrant release ‘on compassionate grounds’. The Ministry of Justice ‘Lifer Manual’ elaborates further. It provides a list (purporting to be exhaustive) of the grounds on which the discretion will be exercised. They are: where the prisoner is terminally ill; death is likely to occur shortly (a period of three months is mentioned as a guide); appropriate care can be provided outside prison; there is a ‘minimal’ risk of reoffending; and ‘further imprisonment would reduce the prisoner’s life expectancy’. The Grand Chamber in Vinter concluded that ‘compassionate release of this kind’ did not provide a realistic ‘prospect of release’ as required by Article 3 (p45, §127).

That seems straightforward enough, but here comes the twist. The UK had submitted in Vinter that it was possible to read s30 as imposing a duty on the Secretary of State to release a prisoner if detention had ‘become incompatible with Article 3, for example, when it can no longer be justified on legitimate penological grounds’ (p44, §125). The Grand Chamber accepted that this reading of s30 ‘would, in principle’ comply with Article 3 (p44, §125), and that executive review of a whole life sentence can suffice (p43, §120). However, ‘the present lack of clarity’ for life prisoners as to whether their sentences were reducible (p45, §129) contravened Article 3.  Read the rest of this entry…

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Two Cheers for the ICTY Popovic et al. Appeals Judgement: Some Words on the Interplay Between IHL and ICL

Published on February 4, 2015        Author: 

Two years ago, I criticised the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) seized of the Prosecutor v. Popovic et al. for incorrectly applying international humanitarian law (IHL). In a publication dealing with the challenging interplay between IHL and international criminal law (ICL), I referred to the Popovic et al. Trial Judgement as an example of “problematic rulings” that “qualify acts as crimes against humanity although they would be legitimate under IHL, thereby penalising the behaviour of warring parties in times of armed conflict, if such behaviour formed part of a larger, criminal plan”. Now, I am happy to note that the Appeals Chamber has set the IHL-record straight.

Friday, some 4.5 years after the rendering of the Trial Judgement, the Appeals Chamber rendered its long-awaited judgement in Prosecutor v. Popovic et al. The case concerned the take-over by the Bosnian-Serb army (VRS) of the Bosnian-Muslim enclaves Srebrenica and Zepa and the crimes committed by the VRS in the aftermath, including the (genocidal) murder of several thousand (the actual number was disputed) able-bodied Muslim men. Of the various ICTY cases dealing with these events, this multi-accused case was known as theSrebrenica case”. Since the trial, one of the accused has passed away and another did not appeal his conviction. The remaining five men saw their convictions mostly upheld, bringing to a close this interesting case with accused from different components and various hierarchical levels of the Bosnian-Serb forces. Two life sentences, one 35-year sentence, and one 13-year sentence were affirmed. One sentence was reduced by one year to 18 years.

All in all, this is a good result for the Tribunal, which noted in its press release that this completes the ICTY’s largest case to date. But it is an especially good outcome for the Prosecution, as the convictions at trial were mostly upheld, with a couple of exceptions: Read the rest of this entry…

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The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars

Published on February 2, 2015        Author: 

Since the initiation of the US-led airstrikes against Islamic State (or ISIL) forces in Iraq and Syria in August and September of last year, the legality of the strikes in Syria has been the subject of much discussion. Much of the focus has been on whether collective self‑defence – of Iraq – allows the use of force against non-State actors in foreign territory (Syria), where the territorial State (Syria) is ‘unable or unwilling’ to stop the attacks itself. However, the legality of airstrikes occurring on Iraqi territory does not appear to have occasioned any discussion at all (although see this previous  post on the debate in the British House of Commons on authorising the use of force in Iraq). The presence of consent by the internationally recognised government of Iraq  to the airstrikes (see here) seems to make legality of foreign military action against Islamic State  under the jus ad bellum so obvious as not to require much commentary. However, a closer look at the scholarship on consent to the use of force reveals that the legality of what has variously been called ‘intervention by invitation’ or ‘military assistance on request’ has traditionally been more contentious than this simple statement would suggest. As discussed below, many scholars, and indeed some States, have suggested that there is a general prohibition on military assistance to governments in a situation of civil war or internal rebellion. This suggestion was particularly prominent in the Cold War era and seemed to represent an attempt to limit indirect uses of force by the superpowers. The rule is said to be derived from the prohibition of intervention in the internal affairs of other states, as well as from the principle of self-determination. The argument made by those in support of the rule is that intervention even with the consent of the government denies the people the right to govern their own affairs and to determine their political future. In short, on this view international law guarantees the right to rebel against the government. Others have doubted that a rule prohibiting assistance to governments in civil wars ever did emerge. This post seeks to demonstrate that recent state practice relating to the use of force in Iraq against Islamic State suggests that the evidence of opinio juris in relation to that rule is at present quite weak.

Support for a Rule Prohibiting Military Assistance to Governments in Civil Wars

According to a 1975 resolution of the Institut de Droit International on “The Principle of Non-Intervention in Civil Wars”, “[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State.” The resolution defines a “civil war” as a non-international armed conflict: a) between the established government of a State and one or more insurgent movements whose aim is to overthrow the government or the political, economic or social order of the State, or to achieve secession or self-government for any part of the State, or b) between two or more groups contending for control of the State in the absence of an established government. Read the rest of this entry…

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Announcements: Conference in London on Refugee Law and IHL; Colloquium in Pisa on Agriculture Law; Assistant Professorship in Geneva; Opening for UK Judge on European General Court; Political Science Prof’ship in Oslo; Call for Papers on Law of Atmosphere; Event in London on UK Exit from EU

Published on January 31, 2015        Author: 

1.  The International Law Programme at Chatham House would like to invite you to an event on 25 February 2015 ‘Refuge from Inhumanity? War Refugees at the Intersection of IHL and Refugee Law’ with Dr David Cantor (Refugee Law Initiative, University of London),  Jean-François Durieux (International Institute of Humanitarian Law) and Professor Françoise Hampson (University of Essex). The meeting will explore pressing legal and practical controversies surrounding the use of International Humanitarian Law to protect refugees fleeing from war.  The event, being held in partnership with the Refugee Law Initiative,  will take place from 17:30 to 19:00 on 25 February at Chatham House in St James’s Square, London, and will be followed by a drinks reception.  Attendance is free, but prior registration is required. For further details and to register see here.

2.  International Colloquium “Current Issues of Agricultural Law in a Global Perspective”, Scuola Superiore Sant’Anna Pisa, September 17-18, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. Those interested should submit a short CV and 400 word abstract to colloquium {at} sssup(.)it no later than April 3, 2015. For full details, including information about application processes, please see the official Call for Papers or visit here.

3.  Job Opening: Graduate Institute, Geneva, Assistant Professor in International Law. The Graduate Institute for International and Development Studies in Geneva invites applications for an assistant professorship in international law, with potential specializations in international economic law, the protection of human dignity, international environmental law, or transnational law. The advertisement is here. The deadline for applications is 15 February 2015. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II

Published on January 30, 2015        Author: 

Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.

Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?

The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.

Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…

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The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I

Published on January 29, 2015        Author: 

On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…

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25 Years of EJIL: A Retrospective

Published on January 26, 2015        Author: 

EJILOxford University Press has assembled an online exhibition to commemorate EJIL’s 25th anniversary. The collection includes the following exhibits:

  • The Main Exhibition: A Retrospective anniversary collection of articles published in EJIL over the past 25 years, featuring two articles per volume.
  • Special exhibit 1: An aggregation into one chronological file all the Tables of Contents of EJIL.
  • Special exhibit 2: An aggregation into one file of all the Editorials reflecting different styles and different sensibilities of various editors.
  • Special exhibit 3: Book Review Editor, Isabel Feichtner, has selected 25 book reviews, one for each year, memorable for the book or for the Review.
  • Special exhibit 4: All the Roaming Charges photographs have been aggregated into one file.
  • Special exhibit 5: All the Last Page Poems have been aggregated into one file.
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Announcements: Human Rights Post-Docs at Hebrew Univ. Jerusalem & Freie Universität Berlin; Cultural Heritage Law Summer School in Geneva; Research/Team Lead Job at Red Cross; Whewell Professorship at Cambridge; New Additions to UN AV Library; New EJIL:Live! Extra!

Published on January 24, 2015        Author: 

1.  The Hebrew University of Jerusalem and the Freie Universität Berlin are now accepting applications for the second round  of Post-Doctoral Fellowships in their joint interdisciplinary program “Human Rights under Pressure – Ethics, Law and Politics” (HR-UP), funded by the German Research Foundation (DFG) and the Einstein Foundation Berlin. HR-UP offers researchers a unique opportunity to conduct cutting-edge research on the most pressing contemporary challenges for human rights, including issues arising from crises and emergencies, globalization and diversity. Post-doctoral fellows will participate in the full HR-UP program curriculum, including interdisciplinary colloquia and annual summer schools. The fellowship includes a monthly stipend of 1416 € + 103 € for material expenses awarded for a period of 12 months, with a possibility of extension up to 24 months. The deadline for applications is February 20th, 2015. For further information, and to apply, please visit here.

2.  The Geneva Summer Schools at the University of Geneva is excited to announce a 2015 summer school on “International Cultural Heritage Law” (22 June to 3 July 2015). The 2 week course taught in English is aimed at upper-year undergraduates, master’s degree students and PhD candidates in law and all other faculties, including art history, archaeology and anthropology. Practitioners, non-specialists and art enthusiasts may also apply. The summer school aims to develop the students’ awareness and general understanding of the main substantive themes of international cultural heritage law, namely: the trade in cultural objects; the restitution of stolen or looted artworks; the protection of cultural property in the event of armed conflict; the protection of the built heritage from natural and human-induced disasters; the safeguarding of the intangible cultural heritage and of the diversity of cultural expressions; the relationship between cultural heritage law and the World Intellectual Property Organization (WIPO); the settlement of cultural heritage disputes. The course will be taught by brilliant young scholars, renowned professors from various prestigious universities, as well as professionals from governmental agencies and international organizations. The University of Geneva staff comprises the team of the Art-Law Centre and of the UNESCO Chair in the International Law of the Protection of Cultural Heritage. Students must apply online. Course places are limited and enrollment is on a rolling basis so students are encouraged to apply early.

3.  In the framework of the co-operation between the ICRC and the British Red Cross to update the collection of practice of the ICRC’s study on customary international humanitarian law, the ICRC and the British Red Cross seek to recruit a senior research fellow/team leader to join the research team. To apply and for further information on the position, please visit here and search for the job title “Senior Research Fellow/Team Leader – International Humanitarian Law”.

4.  The University of Cambridge has announced a call for applications for the Whewell Professorship in International Law. See details here.

5.  New additions to the UN Audiovisual Library of International LawThe Codification Division of the UN Office of Legal Affairs is pleased to announce the launch of the European Union Lecture Series, which is now available on the UN Audiovisual Library of International Law website. It contains 13 lectures given by eminent European law practitioners on various subjects of the European Union. All interested parties are invited to visit the website.

6.  In case you missed it, a new episode of EJIL: Live Extra! is now online. In the new episode, EJIL Editor-in-Chief Joseph Weiler and Professor Andrew Clapham of the Graduate Institute of International and Development Studies, Geneva, discuss Prof. Clapham’s new edition of Brierly’s Law of Nations. They touch on the process of writing in Brierly’s “voice”, what has changed in the 50 years since Brierly wrote his last edition, and the great achievement of this important and concise book.

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The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects: Rejoinder to Enzo Cannizzaro

Published on January 23, 2015        Author: 

This post is a continuation of the EJIL:Debate! in EJIL vol. 25: 4 between Lorand Bartels and Enzo Cannizzaro on “The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects.”

I thank Professor Cannizzaro warmly for his thoughtful reply to my article, which extends it in several interesting directions. Professor Cannizzaro’s main point is that Article 3(5) and Article 21 TEU do not add anything to the EU’s existing human rights obligations insofar as they apply to conduct with mere extraterritorial effects. In some respects I agree with him. However, I would argue that there are some gaps that these provisions plug.

I agree, first of all, that there is some conduct with mere extraterritorial effects that is already covered by the EU’s fundamental rights obligations. Most obviously, there is a Soering-inspired obligation not to remove a person to a third country in which he or she would be at risk of harm (NS v. Secretary of State for the Home Department). But this is a special case, and I do not think that it follows, as does Professor Cannizzaro, that other conduct with mere effects in third countries is also covered. There is to my mind something particular about the EU’s (or a state’s) obligations in relation to a person that is at the relevant time on its territory, and this cannot so easily be translated into an obligation to prohibit exports of death penalty drugs or not to adopt an economic embargo on third states.

At a more general level, the problem is that in practice the high level of fundamental rights protection applicable domestically cannot automatically be extended to policies with mere extraterritorial effects. As my article details, with the exception of Soering scenarios, there have not been any CJEU decisions on whether fundamental rights obligations apply to measures with mere extraterritorial effects, and while the European Court of Human Rights has dealt with this, it has done so very inconsistently (Cf the contrasting decisions in Kovačič (ECtHR, admissibility, 9 Oct 2003) and Ben El Mahi (ECtHR, 11 Dec 2006)). My suspicion is that the CJEU will avoid the problem of extending domestic levels of protection to measures with extraterritorial effects not by applying a dual standard, but rather by not applying fundamental rights obligations to measures in the first place. Read the rest of this entry…

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