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Welcome to the Blogosphere – SIDI Blog

Published on March 26, 2013        Author: 

Earlier this week, the Italian Society of International Law just launced its blog - SIDIBlog. The inaugural post by Annalisa Ciampi provides an Italian perspective on the Italy-India controversy on the shooting of two Indian fishermen [Tip: post is in Italian but non-Italian speakers can cut and paste into Google Translate]. Yesterday, EJIL:Talk! provided a commentary on that incident by Hari Sankar, an Indian academicSIDIBlog intends to be a space for discussion and debate of current issues of International Law (Public and Private) and European Union Law. The editors (Giacomo Biagioni, Giorgio Buono, Francesco Costamagna, Pasquale De Sena, Daniele Gallo, Irini Papanicolopulu, Cesare Pitea, Andrea Spagnolo) invite contributions, which may be written in Italian, English and French (and which should not exceed 1500 words). Posts may be sent to the following e-mail address: sidiblog2013 {at} gmail(.)com

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Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Read the rest of this entry…

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Announcements: The London International Boundary Conference 2013

Published on March 15, 2013        Author: 

The inaugural London International Boundary Conference will take place on 18 and 19 April 2013 at the Royal Geographical Society, London.    Speakers at the Conference are among the world’s leading experts and practitioners in the effective resolution of territorial disputes. They will examine recent developments in disputed “hotspots” around the world, and discuss new and emerging ideas for the resolution and management of territorial disputes, from legal, geopolitical, technical, commercial and other viewpoints. The Conference will be hosted by Department of Geography, King’s College London, Volterra Fietta and the United Kingdom Hydrographic Office. The Conference will also run a half-day technical workshop at King’s College London on the afternoon of 17 April 2013, offering a practical introduction to maritime limits and boundaries. For further details (including speakers, pricing and registration), please visit the conference website.

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Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces

Published on March 13, 2013        Author: 

Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London.

The long awaited Turkel report which examines Israel’s practice of investigating allegations of wrongdoing during armed conflict by its security personnel was published in early February 2013.  The report (see original in Hebrew and an English translation) was issued by an expert Commission established by the Israeli government in June 2010 and headed by Jacob Turkel, a former judge of the Israeli Supreme Court.  The Turkel Commission produced an earlier report in January 2011 which dealt with legal aspects of the Israeli blockade of the Gaza Strip and the interception of the Gaza-bound flotilla in May 2010 (this report was discussed here).  The second and final report of the Commission considers whether the mechanisms employed by Israel to investigate complaints regarding violations of the Laws of Armed Conflict (LOAC) attributed to members of its armed forces conform with the state’s obligations under international law.

To a large extent, the Turkel report is a response to the report of the UN Human Rights Council Fact-Finding Mission (the Goldstone Report) that was published in September 2009 and looked into alleged violations of international humanitarian law and human rights law during the December 2008-January 2009 Gaza Conflict (codenamed by Israel as ‘Operation Cast Lead’).  The Goldstone Report, which was later endorsed by the UN General Assembly, found “major structural flaws” in the Israeli military justice system responsible for handling complaints of serious wrongdoing by Israeli soldiers, and further concluded that Israel’s investigation policies do not meet the required international standards.  The main concerns were the use of internal military investigations by the chain of command to examine complaints, as well as the dual role of the Israeli Military Advocate General (MAG).  The Fact-finding Mission was troubled that the MAG’s responsibility to provide legal advice to the military authorities creates a potential conflict of interest with the parallel responsibility to order the investigation and prosecution of unlawful actions which at times might be based on the MAG’S own legal advice.

Those issues were addressed by the Turkel Commission.  Four Israeli members and two non-Israeli observers prepared the report for two years.  They examined evidence provided by Israeli officials, academics and human rights NGOs, and further consulted several international law experts.  The comprehensive report which analyses the duty to investigate under LOAC and the relevant Israeli practice includes a significant comparative element.  To use the Commission’s own words, the report stands out in the sense that “is the result of considerable efforts to derive the main principles of international law from sources that are often vague and unclear”.  It is therefore a valuable document which might have a meaningful impact beyond the concrete Israeli context. Read the rest of this entry…

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The Limits of Aiding and Abetting Liability: The ICTY Appeals Chamber Acquits Momcilo Perisic

Published on March 11, 2013        Author: 

On 28 February by 4 votes to 1 the ICTY Appeals Chamber acquitted Momcilo Perisic (judgment; summary), the former chief of staff of the FRY army and one of Slobodan Milosevic’s pet generals.  With the recent acquittal of Croatian generals Gotovina and Markac, the Appeals Chamber seems to be in something of a forgiving mood. Perisic was previously convicted by a divided Trial Chamber (voting 2 to 1) for aiding and abetting crimes in Sarajevo and Srebrenica committed by Bosnian Serbs, and on the basis of superior responsibility for crimes in Croatia committed by Croatian Serbs, and was sentenced to 27 years in prison.  The Appeals Chamber’s decision is in my view unfortunate for a number of reasons, even though it is not as utterly shambolic as was the Gotovina acquittal.

Some differences between Perisic and Gotovina are readily apparent. While Gotovina and Markac were convicted by a unanimous Trial Chamber and then had their convictions set aside by the Appeals Chamber on the facts (and at that by 3 votes to 2), with regard to Perisic there was already one dissenting opinion in the Trial Chamber on which an appeal could naturally latch itself on, and the Appeals Chamber reversed (mainly, but not exclusively) on points of law rather than fact, as I will now briefly explain.

The Bosnian part of the case indeed turned on a point of law: whether the actus reus of aiding and abetting as a form of liability requires assistance given by the accused to the perpetrators of the crime to have been specifically directed to aiding the commission of the crime. The jurisprudence of the ICTY on this point has not been clear; the majority of the Trial Chamber considered that specific direction should not be a requirement for aiding and abetting, whereas Judge Moloto in dissent did. In essence the majority’s argument was this – the aid given by the FRY as a state and Perisic as an individual to the Bosnian Serbs was instrumental for their war effort, and was given in full knowledge that their forces were committing crimes, with knowledge that the aid given will assist the commission of the crimes satisfying the needed level of mens rea. Therefore, Perisic  was an aidor and abettor. For Judge Moloto, on the other hand, the majority’s approach failed to distinguish between aid to the commission of specific crimes and aid to the war effort generally, which was not intrinsically criminal for the purposes of the ICTY’s Statute (even though, as a matter of general international law, the FRY’s intervention in Bosnia amounted to aggression). In Judge Moloto’s view, there was no evidence that the aid provided by Perisic was specifically directed to the commission of the crimes for which he was indicted.

The Appeals Chamber, Judge Liu dissenting, basically followed Judge Moloto’s approach, finding that specific direction was an essential element of the actus reus of aiding and abetting liability, and that it could not be proven beyond a reasonable doubt that the aid given by Perisic was specifically directed to the commission of crimes in Sarajevo and Srebrenica, particularly bearing in mind the general nature of the aid given in terms of logistics and personnel and Perisic’s lack of proximity to the crimes themselves.

Read the rest of this entry…

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IntLawGrrls Back Online

Published on March 11, 2013        Author: 

The IntLawGrrls blog is now back online, with a slightly different editorial structure and a new website (www.ilg2.org).  IntLawGrrls new editors (Cecilia Bailliet, Andrew Ewart, Sital Kalantry, Elizabeth Ludwin King, Jaya Ramji-Nogales, and Milena Sterio) invite everyone to check it out.

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Registration Open for ILA (British Branch) Annual Meeting in Oxford

Published on March 7, 2013        Author: 

Registration is now open for the Spring Conference of the International Law Association (British Branch) which will take place in Oxford on April 12 and 13. The theme of the conference is “The Changing Face of Global Governance:  International Institutions in the International Legal Order”. The conference will explore the changing nature of international  institutions and their impact on international governance, international  law-making and law-enforcement. Papers address the role of international institutions in a wide range of areas, including the maintenance of peace and security, international economic law, environmental law, law of the sea, international criminal law, as well as the regulation of technology and health.

The Keynote Lecture and Inaugural Oxford Global Justice Lecture will be delivered by Patricia O’Brien, United Nations Under Secretary General for Legal Affairs and Legal Counsel. Papers will be presented by speakers drawn from academia as well as from the offices of legal counsel of international organizations and States. Plenary speakers include Dan Sarooshi, Nico Krisch, Alan Boyle, Guy Goodwin-Gill, Kristen Boon, Payam Akhavan and Charles Jalloh. The programme and registration details are available on the new website of the Public International Law Group in the Oxford Law Faculty.  The cost for both days is £60 for academics (£40 for ILA members) and £35 for students (£25 for ILA members).

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ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: 

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

Read the rest of this entry…

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Dr Amanda Perreau-Saussine de Ezcurra Law Prize Fund

Published on March 5, 2013        Author: 

A fund has been set up in the memory of our late colleague and friend Amanda Perreau-Saussine de Ezcurra to create a law prize at the University of Cambridge Faculty of Law to reward students’ outstanding performance in the study of the History and Philosophy of International Law. The Faculty obituary for Amanda can be found here, while the obituary written by Patrick Capps for EJIL: Talk! is available here. Any donations from our readers to the fund would be very much appreciated, and can be made here.

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