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Call for Papers: International Human Rights Law Review

Published on March 19, 2012        Author: 

The International Human Rights Law Review is a bi-annual peer-reviewed journal edited at Brunel Law School published by Brill/Martinus Nijhoff Publishers. It aims to stimulate research and thinking on contemporary human rights issues, problems, challenges and policies. It is particularly interested in soliciting papers, whether in the legal domain or other social sciences, that are unique in their approach and which seek to address poignant human rights law and policy concerns of our times. The journal is aimed at academics, students, government officials, human rights practitioners, and lawyers working in human rights, as well as individuals and organisations interested in the areas of human rights law and policy. The Editorial Board welcomes at anytime critical articles that consider human rights law, policy and practice in their various contexts, at global, regional, sub-regional and national levels; book reviews; and an up-to-date appraisal of important jurisprudence and practice of the United Nations and regional human rights systems including those in the developing world. For further details see ‘Call for Papers‘ and ‘Information for Authors’.

Filed under: EJIL Reports, Journals
 

ICC Delivers Its First Judgment: The Lubanga Case and Classification of Conflicts in Situations of Occupation

Published on March 16, 2012        Author: 

On Wednesday, the International Criminal Court delivered its first ever judgment. The Trial Chamber in the Lubanga Case delivered a judgment of over 600 pages by which it convicted Thomas Lubanga of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities. It has taken nearly a decade for the Court to reach the point where it has finally completed a trial (though expect an appeal). That is quite a long time to get to this point and the course of this particular trial has, at times, been particularly unfortunate.

As I haven’t read the entire judgment I am not in a position  to provide comprehensive comments on it at this point. I really want to focus on two issues. The first issue is the length of the judgment. It is a shame that the ICC has followed the trend of other international criminal tribunals in issuing these excessively long decisions. I fail to see why the decisions of these tribunals need to be as long as they are. I would be grateful if someone can explain why the judgments are so long. Sure, these tribunals deal with complex cases. However, domestic courts, at least the ones that I’m familiar with, do not issue judgments anywhere near this length and they do deal with complex matters as well. I agree completely with Dov Jacobs point on his blog when he says:

The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges… Something needs to be done about this judicial logorrhea. What is amazing is that I’ve heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment…

The second, and main, issue I want to deal with is the way in which the Trial Chamber dealt with the classification of the armed conflict. Article 8 of the Rome Statute of the ICC sets out different lists of war crimes depending on whether an armed conflict is international or non-international. In general, an international armed conflict is one that takes place between States. In addition, the law regarding international armed conflicts applies to the occupation by a State of the territory of another State. But how should conflicts which take place in occupied territory and which involve non-State group be classified? In the Lubanga case, the question was whether Uganda’s occupation of the Ituri region in the Democratic Republic of Congo was relevant to the classification of the conflicts involving Lubanga’s militia – a militia that was found not to be under the control of any of the State’s fighting in that area. Where one State is in occupation of the territory of another State, should that fact mean that an armed conflict that takes place in the occupied territory is classified as an international conflict, even if that conflict relates to hostilities against or between non-State groups? On this point, the Trial Chamber disagreed with the view that the Pre-Trial Chamber had taken at the confirmation of charges stage of this same case. Read the rest of this entry…

 

International Tribunal for the Law of Sea’s First Judgment on Maritime Delimitation

Published on March 16, 2012        Author: 

And in other news . . . the International Tribunal for the Law of the Sea (ITLOS) also had a first of its own this past Wednesday. ITLOS delivered judgment in its first maritime delimitation case – Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (see press release here and judgment here). The case is part of a pair of maritime delimitation cases involving Bangladesh and its neighbours. The other case is one between Bangladesh and India, which has been submitted to arbitration under Annex VII of the UN Convention on the Law of the Sea.

We will have a substantive comment on the decision in the Bangladesh/Myanmar cases soon but for now it may be noted that ITLOS set out a single maritime boundary delimiting the territorial seas, exclusive economic zones and continental shelves of the two States. It appears that both parties got something from the decision.  The Tribunal rejected Bangladesh’s argument that both parties had already agreed on a delimitation of the territorial sea in 1974. However, ITLOS acceded to Bangladesh’s request (which was opposed by Myanmar) that the continental shelf beyond 200 nautical miles limit be delimited.

It is not surprising that the decision by ITLOS has received much less attention than that of the International Criminal Court in the Lubanga case (see post here). However, I am surprised that ITLOS announced its decision on the same day as the ICC. ITLOS seems to take special care in ensuring that its work is completely overshadowed by the work of other international courts. Announcing a decision on the same day as the ICC’s first judgment is just part of a trend. The hearings in the Bangladesh/Myanmar case were held exactly at the same time as the ICJ hearings in the Germany v. Italy (Immunity) case. So of course, those hearings got very little attention. In September 2010, when ITLOS held hearings in its advisory proceedings on The Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area, they were fixed for the same week as the ICJ’s hearings in the Georgia v. Russia (Convention on the Elimination of Racial Discrimination Case). Considering that these two ITLOS hearings are the only two substantive hearings the tribunal has had in the last couple of years I find it strange that they are fxed for the same time as the ICJ’s hearings, especially as the ICJ itself only has a few hearings a year. It’s not very hard to avoid those week is it! Perhaps ITLOS is not deliberating trying to hide its light under a bowl, but it couldn’t do a better job of hiding away if it was deliberately trying.

 
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International Law Weekend 2012: Call for Papers and Panels

Published on March 15, 2012        Author: 

After last year’s gathering of the flock (with over 1400 attendees and some 40 co-sponsors, a record draw), we’re ready to do New York City’s International Law Weekend again, in a continuing collaboration between the International Law Association’s American Branch and the International Law Students Association. This year’s International Law Weekend (ILW) conference dates will be October 25-27, 2012. The conference will be held in two venues, at the Association of the Bar of the City of New York and at Fordham Law School.

The theme for ILW 2012 is “Ideas, Institutions, and Interests – Dynamics of Change in International Law”. The sponsors have issued a call for panels, roundtables, and lectures. That call can be found on the site of the American Branch of the International Law Association.  That call states that:

“The unifying theme for this year’s meeting is to explore the mechanisms of change in international law. Panels may focus on key regions undergoing particularly dramatic change, for instance in the Middle East or China, and subject matter areas undergoing rapid change, such as tariffs and trade, human rights and humanitarian intervention, immigration, labor, public health, sustainable development and the environment.”

“This year, we plan to have a broad array of public international law topics, but will also have dedicated tracks of private international law topics in each program slot. Thus, we welcome suggestions of cutting-edge issues in the international aspects of corporate, tax, securities, and investment law, as well as international arbitration and other forms of international dispute resolution.”

“Equally welcome are topics in public international law and institutions, including issues regarding the United Nations, human rights, peacekeeping, humanitarian intervention, arms control, the development of regional and sub-regional organizations, etc. We also encourage suggestions of varied formats, such as debates, roundtables, lectures, and break-out groups, as well as the usual practice of panel presentations.”

The online Proposal Submission form can be found on the ILSA website.

Ruth Wedgwood is President of the American Branch of the International Law Association.

Filed under: Conference, EJIL Analysis
 
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R v Mohammed Gul: Are You a Terrorist if You Support the Syrian Insurgency?

Published on March 14, 2012        Author: 

Dr Kimberley N. Trapp is lecturer in law at Newnham College, University of Cambridge.

In its recent decision in Regina v Mohammed Gul[1], the Court of Appeal held that there is nothing in international law which requires the broad definition of terrorism under the Terrorism Act 2000, as amended,[2] to be read so as to exclude acts of war committed during an armed conflict.

Mohammed Gul, then a law student at Queen Mary, had posted videos on YouTube that “showed attacks by Al Qaeda, the Taliban and other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq and Afghanistan, [and] the use of IEDs against Coalition forces […].”[3]  He was prosecuted for supporting terrorism as defined under Section 1 of the Terrorism Act, found guilty and sentenced to 5 years in prison.  The principal issue considered by the CA was whether the trial judge’s response to jury questions had been correct in law.  After having retired, the jury asked whether “an explosives attack on Coalition forces in Iraq is a terrorist attack” within the meaning of the Terrorism Act 2000. The judge told them that it was, and the Court of Appeal has agreed.  In this post, I want to take serious issue with that conclusion.

The Court of Appeal started by accepting that there is a customary international crime of terrorism (at least in times of peace) on the basis of the decision by the late Judge Cassese in the Appeals Chamber of the Special Tribunal for Lebanon 2011 Interlocutory Decision on the Applicable Law.  Let’s leave that controversy to one side – much has already been said on the Special Tribunal’s decision already. The question the CA then asked is whether “international law has developed so that an attack by insurgents on military forces of a government is not terrorism” – or otherwise put whether international law excludes lawful acts of war (as governed by IHL) from the definition of terrorism.  The reason this question needed asking is that, at least prima facie, “the definition [of terrorism] in Section 1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists.”[4]  The CA therefore needed to know whether there was any international law reason why the Act should be interpreted more narrowly.

The CA focused on customary international law as the source of a potential military exclusion from the definition of terrorism. It examined what it referred to as state practice (some of it in the form of treaty practice of the OIC and OAU, plus the criminal codes of Canada and Australia) and concluded – despite the fact that three out of the four sources examined exclude military conduct from the definition of terrorism – that the “necessary widespread and general state practice or the necessary opinio juris to that effect has not yet been established.” It is hard to see how the CA could have concluded otherwise given the limited practice canvassed.

But it is unclear how the CA jumped from its conclusion that customary international law doesn’t exclude acts of war from the definition of terrorism (accepting for argument’s sake that custom does indeed define terrorism as an international crime) to its conclusion that “there is nothing in international law which would exempt those engaged in attacks on the military during the course of an insurgency from the definition of terrorism.”  Perhaps the CA might have considered other sources of international law? Perhaps a treaty to which the UK is a party?  The Terrorist Bombing Convention is clearly applicable to the facts of the case and speaks directly to the issue of whether the bombing of military targets by insurgent groups in Iraq and Afghanistan amount to an act of terrorism under international law.

Read the rest of this entry…

 

Venice Academy of Human Rights 2012

Published on March 13, 2012        Author: 

Venice Academy of Human Rights

The Venice Academy of Human Rights will take place from 9-18 July 2012. The theme of this year’s Academy is “The Limits of Human Rights” (http://www.eiuc.org/veniceacademy/).

Online registration is open until 1 May 2012.

Faculty of the Venice Academy 2012
Professor Philip Alston, NYU
Professor Seyla Benhabib, Yale
Assistant High Commissioner Erika Feller, UNHCR
Professor Martti Koskenniemi, Helsinki
Professor Friedrich Kratochwil, CEU/EUI
Professor Bruno Simma, Ann Arbor/Munich
Professor Henry Steiner, Harvard

Key Facts
Participants: Academics, practitioners and PhD/JSD students
Type of courses: Lectures, seminars and optional workshops
Number of hours: 21 hours of compulsory courses (plenum), 16 hours of elective and optional courses (smaller groups)
Location: Monastery of San Nicolò, Venice – Lido, Italy
Fees: 500 €

The Venice Academy of Human Rights is a center of excellence for human rights education, research and debate. It forms part of the European Inter-University Centre for Human Rights and Democratisation (EIUC). The Academy offers interdisciplinary thematic programmes open to academics, practitioners and doctoral students with an advanced knowledge of human rights.

A maximum of 55 participants is selected each year.

Participants attend morning lectures, afternoon seminars and workshops and can exchange views, ideas and arguments with leading international scholars and other experts. This includes the opportunity to present and discuss their own “work in progress” such as drafts of articles, chapters of doctoral theses, books and other projects.

At the end of the program, participants receive a Certificate of Attendance issued by the Venice Academy of Human Rights.

Filed under: Conference, EJIL Reports
 
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Call for Papers: The ICC at 10

Published on March 13, 2012        Author: 

In 2012, the International Criminal Court (ICC) will celebrate the ten-year anniversary of its entry into force. The Grotius Centre is holding a conference to coincide with this anniversary. It will bring together scholars from a variety of disciplines and practitioners from within the broader international law community to reflect on the ICC as an institution, its jurisprudence, the impact of its activities and to critically assess future possibilities for the Court.

The conference organizers are currently seeking submissions for panel discussants. Interested participants should send a draft title and abstract of their proposal (500 words), written in English, together with a CV to pcj {at} cdh.leidenuniv(.)nl. Proposals are due no later than Monday, April 16, 2012. Submissions should be related to one of the conference themes, and should indicate under which theme their proposal is to be considered. Accepted submissions may be considered for publication in a volume with a leading international publisher.

More information about the conference is available here.

Filed under: Conference, EJIL Reports
 
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Legality of Drone Strikes in Pakistan to be Tested in English Courts?

Published on March 13, 2012        Author: 

Yesterday, lawyers acting for the son of a man killed by a US drone in Pakistan issued legal proceedings in the English High Court against the UK Foreign Secretary claiming that the UK is acting unlawfully in providing assistance to the US drones program (see here and here). The allegation is that the General Communications Headquarters (“GCHQ”), a UK intelligence agencies under the control of the Foreign Secretary, provides information to the CIA on the whereabouts of alleged militants. According to the lawyers acting for the claimant:

“The legal challenge states that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.
As CIA and GCHQ employees, are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.
GCHQ employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic criminal law as secondary parties to murder and that any policy which involves passing locational intelligence to the CIA for use in drone strikes in Pakistan is unlawful.
Evidence suggests that drone strikes in Pakistan are being carried out in violation of international humanitarian law, because the individuals who are being targeted are not directly participating in hostilities and/or because the force used is neither necessary nor proportionate.
This suggests that there is also a significant risk that GCHQ officers may be guilty of conduct ancillary to crimes against humanity and/or war crimes, both of which are statutory offences under the International Criminal Court Act 2001”

To the extent that the claim raises issues of British complicity with violations of international law by the US, this case will be similar to those cases in which it is alleged that UK officials are complicit in torture committed by foreign States (see previous posts herehere and here). Claims that drone strikes amount to crimes against humanity seem a bit far fetched. Whether or not the drone strikes violate international humanitarian law and amount war crimes will depend on some of the issues raised in my post of last month on targeting practices employed in drones strikes in Pakistan.  Readers will no doubt spot the contradiction in the present claim. It is said that not only is there no international armed conflict in Pakistan, there is actually no armed conflict of any sort. Nonetheless it is claimed that the drone strikes are carried out in violation of international humanitarian law and that there is a significant risk of UK personnel being guilty of war crimes. Without an armed conflict, IHL does not apply and there can be no war crimes!

The first part of the claim seems to take a completely different approach to the claims made at the end. The suggestion there is that even if the drone strikes are not themselves contrary to international law, the involvement of CIA and GCHQ personnel in those strikes is unlawful because those persons do not have combatants immunity under international law. First of all, it should be pointed out that absence of combatants immunity for acts in war  does not mean that a person who does those acts is acting in violation of international law (as long as the acts don’t violate IHL). Read the rest of this entry…

 

Judging Judges: A Statistical Exercise

Published on March 12, 2012        Author: 

Andrea Bianchi’s excellent, thoughtful post on the perceptions of certainty in response to the ICJ’s Germany v. Italy judgment provokes many questions. What, exactly, created the certainty both within the Court and outside it as to how the Court would decide the case? Is it the determinacy of the law, as the positivists among us would argue? Or is it the structural biases of the Court as an institution and of its individual judges that we were out of experience simply able to assess and predict, as would be the view of the more critically minded? But I was particularly struck by Professor Bianchi’s praise of Judge Cancado Trindade, who found himself in the smallest of minorities, dissenting alone on the jus cogens not overriding immunity point:

Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he [sits] and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.

One could take issue with some of Bianchi’s points. Today’s ICJ is perhaps not as devoid of human rights-minded judges as it once was. And while challenging orthodoxy is a good thing, a judge who allows himself to become isolated within his court is perhaps not pursuing the wisest or the most effective course of action, even assuming the general validity of his own worldview. But I am really interested here in a broader and more fundamental point: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? If legal argument generally and judging specifically is an exercise in persuasion, what is the audience that the judge should seek to persuade and in what manner? Is the judge to be the harbinger of utopia, writing for those who “want to believe in the redeeming force of human rights and universal justice for a better world,” or a realistic, pragmatic apologist of the world as it stands today? Your mileage, I imagine, may vary.

These broader questions aside, perhaps it would be useful – or at least interesting – to evaluate the performance so far of Judge Cancado Trindade, now sitting on the ICJ for some three years. I wish to do so through a rather trivial statistical exercise, and leave it up to the readers to draw their own conclusions, if any. The table below was compiled by an excellent LL.M student of mine at Nottingham, Tilman Dralle, to whom I’m grateful for his assistance. The table is I think fairly self-explanatory:

  Read the rest of this entry…

 

Citizenship and the Holder Speech on Targeted Killings

Published on March 8, 2012        Author: 

A couple of days ago the US Attorney General, Eric Holder, gave a major speech on the legal parameters of the US targeted killing policy (text of the speech; analysis by Bobby Chesney onLawfare and Deborah Pearlstein on Opinio Juris). Nothing terribly new here as a matter of international law, bearing in mind the previous speeches by Harold Koh and John Brennan. Targeted killings are still being justified via self-defense coupled with the unwilling or unable standard as a matter of the jus ad bellum, and as part of an armed conflict as a matter of the jus in bello. The analysis is still very rudimentary and avoids many complex issues, but that’s what one can expect from a speech as a opposed to a detailed legal memo. The applicability of human rights law is still denied or not addressed; ad bellum and in bello issues at times still conflated.

What is new in the speech is the standard that the Obama administration thinks applies to the killing of US nationals (e.g. Anwar Al-Awlaki) outside US territory under US constitutional law, specifically the due process clause of the Fifth Amendment:

Read the rest of this entry…