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The Diversity of Rules on the Use of Force: Implications for the Evolution of the Law

Published on November 11, 2019        Author: 
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Last month, I had the pleasure and honour to deliver one of the keynote lectures at the Canadian Council of International Law Annual Conference. The theme of the conference was “Diversity and International Law” and I chose to speak about the diversity of rules on the use of force and the implications of that diversity for the evolution of the law. I am pasting the text of my lecture here

In this lecture I wish to address the question whether the law relating to the use of force – as set out in the UN Charter – has been capable, and is capable, of adapting to meet new threats and challenges facing the international community. My focus is not on the substance of the rules but rather on how they change. In particular, I wish to show that we need to be attentive to the nature of diverse nature of the rules in this area as we think about the possibility of their evolution.

Yesterday was the 74th anniversary of the entry into force of the United Nations Charter. It was around the time of the 50th anniversary of the UN that literature began to emerge suggesting that we might think of the UN Charter as a constitution for international society. Whether one agrees with that characterisation or not the Charter shares at least a couple of features with constitutions – it aims to lay down an overarching framework for the community it applies to, and is intended to be an abiding document in terms of duration. This immediately raises questions about whether the document can continue to regulate new and unforeseen challenges. This is particularly true of the Charter rules relating to the use of force.

Areas Where Evolution of the Charter Rules on Use of Force Have Been Called For

One can think of at least four areas where it has been argued that rules of the UN Charter ought to be adapted (or have been adapted, depending on one’s point of view) to meet new challenges : Read the rest of this entry…

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Announcements: Conference, What Room for Military Assistance on Request in the International Legal Order; Lecture, On Data – Givens of Global Law

Published on November 10, 2019        Author: 
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Conference: ‘What Room for Military Assistance on Request in the International Legal Order?’ On Thursday 5 and Friday 6 December 2019, the Journal on the Use of Force and International Law (JUFIL, Routledge) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) will host an international conference focusing on ‘military assistance on request’. Having regard to recent third-State interventions in Yemen, Syria and elsewhere, the conference seeks to explore the legal framework governing such interventions, including relevant uncertainties and shortcomings as well as proposals de lege ferenda. Separate expert panels will be devoted e.g. to the ‘authority’ to invite outside intervention on the one hand, and the permissibility of third-State intervention in situations of civil war on the other hand. The conference programme and registration link are available here.

Lecture: On Data – Givens of Global LawOn 20 November The Centre for Law and Society in a Global Context (GLGSC) will host its Annual Lecture, to be delivered by Professor Fleur Johns. The title of the lecture is On Data: Givens of Global Law. This talk focuses on a medium in which people, places and things are being connected, divided, aggregated and distributed juridically on the global plane: digital data. It will explore how, to whom, under what conditions and in what formats digital data are being given in certain practices of contemporary international law: specifically, in aspects of international development and humanitarian work in which the adoption of digital data and data science techniques is being encouraged. More precisely, it will consider some ramifications of the growing digitization of two key knowledge formats for international law: facts and populations. It will ask what givens may be constituted or reconstituted – or what may be established, or re-established, about international law, legal actors, institutions and operations – in the process of this shift in knowledge practice. And it will touch, finally, on what might be at stake in these changing practices with regard to the CLGSC’s three, current thematic concerns: time and place; power and capital; aesthetics and materiality. More details can be found here

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Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?

Published on November 8, 2019        Author: 
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On 19 April 2017, the ICJ rendered an Order dealing with Ukraine’s request for provisional measures concerning the alleged violations by Russian Federation of both the International Convention for the Suppression of the Financing of Terrorism (‘ICSFT’) and International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

In assessing the request for provisional measures, the Court moved from requiring plausibility of rights to requiring of plausibility of claims. The latter constitutes a higher threshold compared to the former eloquently described by Judge Abraham in his separate opinion appended to the Pulp Mills judgment and consistently followed by the ICJ as discussed below.

This new test requires the Court, at the provisional measures stage, to consider aspects of the merits, which relates to the probability of the claim’s success, and goes beyond a pure jurisdictional analysis. This post examines the limits of Court’s assessment of the merits of a dispute in the context of a request for provisional measures, in the light of the binding nature of such measures and the need for balance between prejudgment and the protection of adjudication’s consensual nature. Does a requirement of factual plausibility disturbingly blur the distinction between merits and incidental proceedings? Read the rest of this entry…

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An Arusha-based World Court on Human Rights for African States?

Published on November 7, 2019        Author: 
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The Arusha-based African Court on Human and Peoples’ Rights (ACtHPR) enjoys a distinctively broad contentious jurisdiction extending to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR)). The ACtHPR’s striking feature sets it apart also from most international courts. One may even argue that, as far as African States are concerned, the ACtHPR functions as a world court on human rights by consolidating human rights obligations of State parties under the auspices of a single judicial body on a regional level. In this post I will offer a few, brief thoughts on some of the legal issues pertaining to the material jurisdiction of the ACtHPR. For a detailed analysis of these matters see my recent article in the Human Rights Law Review.

The ACtHPR’s approach

The ACtHPR has proved itself willing to exercise its material jurisdiction to the fullest possible extent. It systematically applies, and finds violations of, other human rights treaties, including regional, sub-regional and UN treaties, and it orders the respondent States to comply with their respective obligations. Some scenarios on how applicants submit complaints are:

  1. bringing a case claiming a violation of a right which is not protected under the ACHPR but is protected by another treaty ratified by the State concerned;
  2. alleging a breach of a right which, although included in the ACHPR, is formulated in another treaty in a manner that ensures a higher level of protection (see, Lohé Issa Konaté);
  3. claiming a violation of a human right which is protected in the same way under both the ACHPR and another treaty, but no mechanism is envisaged or is available to the applicant under that other treaty to bring an individual complaint (see Tanganyika Law Society);
  4. choosing to bring a complaint before the ACtHPR (instead of, or in addition to, another international body) as a litigation strategy (e.g., physical proximity to a forum, litigation costs, avoidance of stricter admissibility criteria before UN human rights bodies).

New designs and old anxieties Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 
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In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

Published on November 6, 2019        Author: 
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My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex cases, making them especially poorly suited for precisely the types of cases the ICC is mandated to deal with. 

In my view, the more common and appropriate approach, seen in national and international practice, is even-handed, holistic, experiential and practical.  The experiential approach draws on human experience.  It employs sound methods of reasoning, such as triangulation, extrapolation, interpolation, and inference to best explanation, and thus it is can work judiciously with patterns and inferences.  It is also practical: it bears in mind feasibility and procedural economy.

For brevity, I will call the alternative, emerging approach the “Cartesian” approach. I introduced its features in part 1 of this series, such as its hyperscepticality, atomism, and fixation with certainty and speculative doubts.  In this post I will give some additional examples of problematic evidentiary approaches as seen in the Gbagbo trial decision.  As the judgments are over 1300 pages, I am only able to outline some of the concerns and some examples in the most general and cursory.  My hope is to trigger an invigorated discussion of international criminal evidence law.

Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 1)

Published on November 5, 2019        Author: 
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The aim of this post is to start a conversation about unusual evidentiary standards emerging in some judgments at the ICC.  Although the underlying impetus is commendable, these standards pose legally unprecedented and epistemologically unsound demands.  Remarkably, these novel evidentiary approaches, which depart significantly from national and international practice, have not yet triggered much conversation.  As recent cases (such as Gbagbo) have ended in acquittals, the Court-watching community has largely simply echoed the judicial criticisms of the evidence, and hence blamed inadequate investigations.  While investigative improvements are likely part of the solution, any serious effort to repair the ICC has to consider these evidentiary standards.  These standards will significantly increase the costs and delays of ICC proceedings.  In cases of any complexity, the standards can only result in failed cases.  An invigorated sub-discipline – international criminal evidence law – is urgently needed.

In this three-part series of posts, I will focus on the Gbagbo acquittal judgment.  Douglas Guilfoyle’s thoughtful ‘tale of two cases’ advances a hypothesis that the different outcome between the Gbagbo acquittal and Ntaganda conviction is because the latter focused on an easier, smaller case.  That may be true, but I want to place alongside that another hypothesis, that the difference between the two outcomes may in part be the very different approaches by the judges.

I open with a word of sympathy for judges.  At an earlier stage of international criminal law, Tribunal judges were often criticized by academics (including me) for adopting approaches that were too pro-conviction and that overlooked rights of the accused.  Hence it is entirely understandable that judges and legal officers may have lurched in the other direction, with an eagerness to demonstrate their unparalleled care for the accused. 

The problem is when the zeal for impeccable standards swings too far, and produces a method that is so rigid, formalistic, and hypersceptical that it loses sight of substance and feasibility. Read the rest of this entry…

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The International Court of Justice Releases New Rules of Court

Published on November 4, 2019        Author: 
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On 21 October 2019 the International Court of Justice released a series of amendments to its Rules of Court. This is the first substantive change to the Rules since 2005 and marks the fifth time the Rules have been amended since the creation of the Court (discounting the PCIJ years, on which more will be said in a moment).

The 2019 amendments are of interest because they come at a time when practical and academic interest in the Court’s procedure is at an all-time high. I say this not only because it is the focus of my own PhD research. Questions of International Law hosted a conference on procedure in May of this year; the International Law Association Committee on the Procedure of International Courts and Tribunals is in its final year and will be reporting in 2020; and the Max Planck Institute released last month a new encyclopedia dedicated to matters of procedure.

This post will set out a brief history of the Court’s Rules, speculate on the driving forces behind the 2019 amendments, and consider the implications of the new Article 79 on preliminary matters. Read the rest of this entry…

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Announcements: German Practice in International Law; Research Position in Climate Change Law and Policy Programme; Human Rights Essay Award Competition; CfP The Cyprus Review; ESIL Interest Group on Peace and Security

Published on November 3, 2019        Author: 
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1. German Practice in International Law. German Practice in International Law (GPIL) publishes case studies on German State practice in the field of public international law. Each case study presents the German position on a particular question of public international law and puts that position in its wider factual and political context. Where applicable, it also records the reactions of other States and provides a legal assessment of the German position. Case studies are based on decisions by German courts, diplomatic notes, official government statements, answers to parliamentary questions, government reports, or statements before international organizations. All documents or extracts thereof not otherwise available in English are translated into English. GPIL covers the full spectrum of public international law ranging from air and space law to the use of force. The material is arranged in 35 broad subject categories. The material is presented without hyperlinks or references as many of the original documents will be in German. A fully referenced version of all entries will be published annually in book form. If you are interested in State practice, please check out GPIL here and subscribe to the newsletter.

2. CIL Research Position in Climate Change Law and Policy Programme. CIL invites applications for a Research Associate to join our Climate Change Law and Policy Programme. For more details, please see here

3. 2020 Human Rights Essay Award Competition. The Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law at the American University Washington College of Law, seeks to stimulate the production of scholarly work in international human rights law. The topic of the 2020 competition is Rule of Law and Human Rights: Strengthening Democratic Institutions. Participants have the flexibility to choose any subject related to this topic, however, the scope of the submission must directly relate to this year’s topic or it will be disqualified. International human rights law can be understood to include international humanitarian law and international criminal law. We will award two winners — one for a submission in English and one for a submission in Spanish — with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2020 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from 25 May – 12 June 2019. The deadline to enter your submission is 1 February 2020. Only participants with a law degree are eligible to enter. If you would like additional information or have any questions, contact hracademy {at} wcl.american(.)edu or iamoot {at} wcl.american(.)edu.

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Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia

Published on October 30, 2019        Author:  and
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In the beginning of October, EJIL: Talk! published a series of posts (here and here) by George Stafford, one of the co-directors of the European Implementation Network, who raised alarm about the status of execution of judgments of the European Court of Human Rights (the ECtHR). Based on the available statistical data, George argued that the problem of non-execution is “far more widespread than many believe.” Our post continues to address the important issue of the execution of judgments of the ECtHR by focusing on a specific case, namely Anchugov and Gladkov v. Russia – a 2013 judgment concerning the disenfranchisement of prisoners in Russia. 

On September 25th, the Committee of Ministers (the CM) of the Council of Europe, which pursuant to Article 46(2) of the European Convention on Human Rights (the ECHR or the Convention) supervises the execution of judgments of the ECtHR, adopted a final resolution CM/ResDH(2019)240, which closed the supervision of Anchugov and Gladkov v. Russia. The closure of the case means that Russia has complied with Anchugov and Gladkov judgment, as per assessment of the CM.

Anchugov and Gladkov became a test case for the Russian Constitutional Court (the RCC) under the domestic mechanism introduced in 2015, which permitted the Russian authorities to refuse the execution of judgments of the ECtHR on the basis of the RCC’s assessment of non-compliance of such judgments with the Russian Constitution. The RCC’s 2016 ruling of 19 April 2016 finding that the execution of Anchugov and Gladkov judgment was “(im)possible” provoked strong criticism from legal scholars and became a symbol of Russia’s resistance to the authority of the ECtHR. Read the rest of this entry…

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