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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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International and Domestic Implications of South Africa’s Withdrawal from the ICC

Published on October 24, 2016        Author: 

In the early hours of Friday 21 October 2016, it was revealed that the South African Minister of International Relations and Cooperation had issued official notification of South Africa’s withdrawal from the International Criminal Court (a copy of the instrument of withdrawal can be seen here). This was received by the UN Secretary-General, starting the prescribed 12-month notice period for withdrawal from the Court (Article 127 of the Rome Statute). This announcement came as a shock to many in the legal community in South Africa and abroad. While the South African government had expressed unhappiness with the Court, and had previously threatened withdrawal, there was no public indication that an official decision to withdraw had been taken, nor had any public consultation taken place on the matter in Parliament or elsewhere.

This decision will have significant implications for the legal landscape in South Africa, and likely also for the position of other African States in the ICC. It is also possible that it will lead to the fundamental weakening of the ICC itself. Here I consider various implications of this sudden announcement, both from the domestic South African and international perspectives. First, I address the status of the instrument of withdrawal in international and domestic law. I then look at the impact of withdrawal for the enforcement of international criminal law in South Africa. Finally, I address some possible consequences for the ICC itself.

Is it Legal?

The first question is whether the notice of withdrawal signed by the Minister is lawful, from the lenses of international and domestic law, given that this was a purely Executive act that was not preceded by any form of public or parliamentary consultation, let alone approval. Similar questions arise in the context of the Brexit ‘Article 50’ debate. While it seems that the instrument of withdrawal is likely sufficient to take effect in international law, it is doubtful that the domestic legal requirements have been adhered to. Read the rest of this entry…

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Announcements: United Nations University Vacancy; CfS Journal of International Criminal Justice; CfS Cambridge International Law Journal; CfP International Network on Transnational Legal and Political Theory

Published on October 23, 2016        Author: 

1. Organizational Unit: UNU Institute on Comparative Regional Integration Studies. The United Nations University (UNU) is searching for an entrepreneurial director for its Institute on Comparative Regional Integration Studies (UNU-CRIS) in Bruges, Belgium. The Institute undertakes solution-oriented, policy-relevant research on the impact of regional integration in policymaking across all levels of political organisation. The Institute will, from October 2017, be working in close partnership with the University of Ghent and the Free University of Brussels. For more information, see here.

2. Journal of International Criminal Justice Call for Submissions. To mark 15 years since the coming into force of the Statute of the ICC on 1 July 2002, the Journal of International Criminal Justice is pleased to announce a forthcoming symposium on The International Criminal Court’s Policies and Strategies’ to be published in July 2017. The Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future. The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at these documents, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies. The Journal calls for submission of abstracts not exceeding 500 words by no later than 15 November 2016. The Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2016. For more information about the call, see here or contact the Executive Editor at jicj {at} geneva-academy(.)ch. Read the rest of this entry…

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Filed under: Announcements and Events
 

South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 

The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…

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A Role for the Security Council on Defensive Force?

Published on October 21, 2016        Author: 

Last wMonica Hakimieek, Elena Chachko and Ashley Deeks posted a helpful resource at Lawfare: a compilation of states’ pronouncements on the use of defensive force against nonstate actors. Readers no doubt know that there is an ongoing debate about whether and, if so, under what circumstances a state may use force in self-defense against nonstate actors that operate from another state. The Lawfare post asserts that ten states have expressly endorsed the unable-or-unwilling standard, under which defensive force would be permissible if the “host” state is unable or unwilling to contain the violence. The post then characterizes three states as having implicitly endorsed the unable-or-unwilling standard; eighteen as ambiguous about that standard; and four as expressly objecting to it.

We disagree with some of those characterizations. A few of the “express” endorsements seem to us to be less definitive than Chachko and Deeks claim. Moreover, we don’t think the “implicit” or “ambiguous” endorsements are endorsements at all. In these cases, the acting states seem not to support the unable-or-unwilling standard but rather to articulate a narrower standard -one that is limited either to the host state’s affirmative support for the nonstate group or to that state’s loss of control over portions of its territory. (For a discussion of the various standards that might be in play, see this article.)

cogan-faculty-pageWe want to focus here on a more interesting phenomenon: in the current fight against the Islamic State, six states have invoked in their reports to the Security Council a combination of Resolution 2249 and Article 51 to justify their use of force in Syria. (The six states are Belgium, Denmark, Germany, the Netherlands, Norway, and the United Kingdom.) Resolution 2249 was adopted in November 2015. It “determin[ed]” that the Islamic State “constitutes a global and unprecedented threat to international peace and security” and “not[ed] the letters . . . from the Iraqi authorities which state that Da’esh has established a safe haven outside Iraq’s borders that is a direct threat to the security of the Iraqi people and territory.” The Council also:

“call[ed] upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, . . . to prevent and suppress terrorist acts. . . .”

This Resolution nowhere authorized the use of force. And even if it did, it would be unnecessary if Article 51 itself provided a basis for using force in Syria. The point of Article 51 is to permit unilateral force – that is, force without any Council action – in “true” cases of self-defense. As such, the Article 51 reports that reference 2249 are, at the very least, odd. Read the rest of this entry…

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International Law in the Early Days of Brexit’s Past

Published on October 20, 2016        Author: 

Editor’s Note: This post is an adapted version of a short-piece prepared by the author for a policy-report by the think-thank Britain in Europe based at Brunel University London. The report will be presented on the 25th October at a high-level meeting at the British Academy and commented upon by Dominic Grieve, former attorney general of the United Kingdom (2010-2014).

Echoing a widespread sense of almost existential malaise across the ‘invisible college’ of public international lawyers regarding ‘Brexit’, Judge James Crawford of the bench of the International Court of Justice (ICJ), and until very recently the Whewell Professor of International Law at the University of Cambridge, offered a de minimis definition of international law in times of crisis at the opening ceremony of the 12th Annual Conference of the European Society of International Law (ESIL). International law, Judge Crawford said with a fine sense of irony, is ‘all that remains’ when ‘Brexit’ happens, or when Donald Trump wins the U.S.’ Presidential elections.

Internationalists by training and vocation, public international lawyers have not, for their greatest part, been too fond (to put it lightly) of the outcome of the Brexit referendum. But, is this gremial intellectual ‘malaise’ really justified from the perspective of the strictly professional academic interests of the UK academically-based ‘invisible college’ of international lawyers? After all, most international law scholars based in academic institutions across the UK received the news of the outcome of the EU referendum with, at least, a pinch of ironical relief at not having made European Union Law their life’s profession. The awareness that the UK was to be in an even greater need of international legal expertise in the years to come may have added further reassurance to those concerned by their job security and perhaps, overall their life-project in a country which, worn out by years of austerity, had just turned its back on what for all its flaws remains on paper the most advanced value-based and peaceful historical experiment of legal and political integration that a History littered with projects of conquests and subjugation of peoples in the name of religion, imperialist designs and totalitarian ideologies had ever witnessed. International law is, at the end of the day, ‘all that remains’ to replace the law of the European Union as legal vernacular for this country to lay new foundations of its ‘global’ legal relationship with the rest of the world. But, can the UK truly count on some sense of academic loyalty on the part of non-British UK-based international lawyers, many of whom, moreover, feel particularly estranged amidst an extended public rhetoric of ultra-nationalist overtones as EU nationals in a country that will soon not be part of the ‘EU family of nations’? What might appear prima facie to be a question primarily addressed to interrogate the theoretical possibility that many non-British nationals (both EU and non-EU citizens alike) would be rethinking pursuing their academic careers in British universities in a post-Brexit scenario, has, however, gained an unexpected, and slightly disquieting added dimension in recent weeks. According to the British media, indeed:

‘foreign academics from the LSE acting as expert advisers to the UK government were told they would not be asked to contribute to government work and analysis on Brexit because they are not British nationals’

Read the rest of this entry…

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