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Unlawful Killing or Self Defence? Some Thoughts on the ECHR Decision in Makarova v. United Kingdom

Published on July 31, 2018        Author: 
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The admissibility decisions of the European Court of Human Rights (ECHR) do not usually attract larger attention. There are, of course, well-known exceptions, such as Banković and Others v. Belgium and Others. The recent decision in Makarová v. the United Kingdom (see here), rendered on 5 July 2018 by a committee composed of three judges, will certainly not become one of these exceptions. Although the decision has made front pages news in the Czech Republic, the country of origin of the applicant, this has more to do with the factual background of the case than with any legal intricacies involved in it. Despite that, the decision, while not necessarily incorrect, has some interesting and possibly controversial aspects that might deserve closer scrutiny.

Facts of the Case

The facts are well-known and largely uncontested. The Czech citizen Zdeněk Makar, a 31-year-old brother of the applicant, was killed in September 2016 in London, where he had been living for 10 years. The person responsible for his death was a 29-year-old UK citizen Raymon Scully. Makar met Scully, who was in the company of younger friends, in a local takeaway restaurant. They had a dispute, after which Makar left the restaurant. Scully and his friends followed him down the street, where Scully attacked the unarmed Makar with a bite lock. According to a witness, “he swung the improvised weapon and struck Mr Makar to the left side of his head, catching him behind the ear and knocking him to the ground where he then struck him at least twice more”. While Mr Makar was dying in the street, Scully and his friends left without providing first aid or calling ambulance.

The trial with Scully took place between 21 March and 3 April 2017 at the Central Criminal Court in London, and involved a jury composed of twelve lay persons. The members of the jury had to decide whether the act committed by Scully was to be qualified as a murder (intentional killing), manslaughter (unintentional killing) or self-defence. They were informed about the legal requirements of these three qualifications. The trial judge also explained to them that Scully’s good character (i.e. lack of previous criminal convictions) could be taken into account when considering the case. On 3 April 2017, the jury delivered a majority verdict concluding that the defendant had acted in self-defence (defending one of his friends). Scully was acquitted of both murder and manslaughter and set free.

The verdict caused outcry in the Czech Republic, where it was interpreted as a sign that in the pre-Brexit UK, the lives of migrant workers from Central Europe were not given much weight. The Czech Ministry of Foreign Affairs issued a diplomatic note, in which it requested the documents related to the case and “assurance that the nationality /…/ had no influence on the judgment”. The Ministry furthermore announced that it would provide assistance to Makar’s sister, Adéla Makarová, in bringing the case to the ECHR. Makarová lodged the application to the Court on 4 September 2017. On 5 July 2018, the Court declared the application manifestly ill-founded and, hence, inadmissible.

ECHR Decision

The application relied on Articles 2 (right to life) and 13 (right to an effective remedy) of the European Convention on Human Rights. With respect to the former, the applicant argued that the UK (i.e. England and Wales) criminal system exhibited structural deficiencies in that: a) the proceedings failed to produce clear reasons for the defendant´s acquittal; b) the UK test for self-defence allowed instances of unlawful killing to go unpunished; c) the UK law did not criminalize intentional omissions to provide first aid. Alternatively, the applicant argued that a proper application of the domestic could not have led the jurors to the conclusion they had reached. With respect to Article 13, the applicant complained about the absence of an appeal against an acquittal by a jury in criminal proceedings.

The Court rejected all these arguments. It concluded that the UK satisfied the procedural obligation under Article 2(1), because: a) the Convention does not require jurors to give reasons for their decision; b) the subjective test of self-defence used in the UK does not violate Article 2;c) Article 2 does not impose a positive obligation to criminalise intentional omissions. As to the alternative argument, the Court repeated that there had been sufficient safeguards against arbitrariness.

With respect to Article 13, the Court simply recalled that this provision only applied where an individual had an arguable claim to be the victim of a violation of a Convention right. Since the Court already found the applicant’s complaint under Article 2 manifestly ill-founded, there was no such arguable claim and the complaint under Article 13 was declared manifestly ill-founded as well. Read the rest of this entry…

 

What on Earth is Happening to Space Law?

Published on July 31, 2018        Author: 
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In 2015 and 2017, respectively, the United States of America and Luxembourg enacted bills granting property rights on resources collected in outer space. The potential beneficiaries of these laws are hi-tech companies investing in the exploration and exploitation of space resources. Even though robotized mining of precious metals, rare earths and other raw materials on the Moon or on near-Earth asteroids is said to be at least 20-25 years away, an economy of space resources is already developing at a brisk pace. The stakes are in fact high: mining a few large asteroids may change world market conditions for some crucial raw materials. One may be tempted to see these new developments as intimations, not only of a new space race, this time driven by private actors, but also of the space law to come – and possibly as an occasion to let space law flow back into the main stream of international legal scholarship.

Space law began to take shape as a branch of public international law some time around the late 1950s. In the next two decades it struggled to define its identity by analogy with the law of the sea and the legal regimes of other remote places (yet not as remote) like Antarctica or the deep ocean seabed. The law-of-the-sea analogy has always been a powerful motif in the making of and theorizing about the law of outer space. But it is also potentially misleading, as Rolando Quadri was ready to point out in 1959. Epitomized by the adoption in 1979 and subsequent failure of the Moon Agreement, space law’s arrested development left it with an uncertain, coarse-grained legal ontology that compares unfavourably to that of the law of the sea. While the latter distinguishes between low-tide elevations, islands, and uninhabitable rocks, space law works with an inchoate notion of ‘celestial body’ encompassing anything between the Sun and the tiniest asteroid. The legal status of space resources, both living and non-living, is likewise uncertain and no agreement has as yet been reached as to the exact boundary between airspace and outer space, let alone on the limits of humanity’s jurisdiction to prescribe or on protocols governing the encounter with other sentient beings. Tomorrow’s spacefarers will not be leaning over a legal void. It is clear, though, that some rethinking of the fundamentals is required, as well as some change.

Unilateral initiatives like those recently taken by the US and Luxembourg may well set in motion processes of legal change, no matter if these States describe their acts as fully compliant with the existing law of outer space. Although understandable as a matter of diplomatic tactics, this defensive stance is nonetheless based on a disputed interpretation of the law in force (for overviews and detailed analyses of the different positions see Pop, Tronchetti, De Man, Jakhu et al.Su and Hofmann).

Read the rest of this entry…

 

Geographical Remoteness in Bemba

Published on July 30, 2018        Author: 
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Introduction

The ICC Appeals Chamber’s acquittal of Jean-Pierre Bemba Gombo continues to provoke discussion. In a previous post, I addressed the Appeals Chamber’s treatment of the relevance of a commander’s motivation in taking measures to prevent or punish the crimes of his subordinates. This issue of motivations was one of two putative errors emphasised by the Appeals Chamber in its summative paragraph – paragraph 191 – on the Trial Chamber’s finding that Mr Bemba failed to take all necessary and reasonable measures. The second putative error identified in that paragraph concerned the Trial Chamber’s failure to properly take into account the difficulties that Mr Bemba would have faced as a remote commander sending troops to a foreign country.

The description of Mr Bemba as a remote commander has been emphasised in numerous media reports, as well as in academic commentary. A concern raised in the latter is that the decision introduces a new distinction into the law of command responsibility – a distinction between remote and non-remote commanders, with the former being held to a lower standard than the latter. This post analyses how the Appeals Chamber dealt with the remoteness issue. First, it sets out the Majority Judgment’s findings on Mr Bemba’s status as a remote commander and suggests that it is not clear whether it intended to draw a legal distinction between commanders. Second, it argues that the drawing of such a distinction would be indefensible as a matter of principle – geographical position ought not be used to distinguish between commanders. Third, and happily, it shows that even if the Majority Judgment is unclear, President Oboe-Osuji’s Concurring Separate Opinion and the Joint Dissenting Opinion of Judges Hofmanski and Monageng indicate that there weren’t three votes for the introduction of any such distinction. In other words, the decision in Bemba does not stand for the proposition that we are now faced with an additional distinction in the law of command responsibility. Finally, it returns to Bemba itself, and the Majority Judgment’s reasoning on this point. That reasoning is not convincing. Read the rest of this entry…

 

African Court on Human and Peoples’ Rights Delivers Landmark Ruling on Women’s Rights and the Rights of the Child in Mali

Published on July 27, 2018        Author: 
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Introduction

On 11 May 2018 the African Court on Human and People’s Rights (‘the Court’) issued its ruling in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v Mali. This is the first judgment of the Court which deals with the rights of women and the rights of the child in Africa. With this decision, the Court has placed strict obligations on states to uphold international human rights standards within the sphere of family law, even when to do so may require them to disapply religious and customary law.

Facts

The application was brought by two Malian human rights NGOs, APDF and IHRDA (‘the Applicants’). The Applicants claimed that the most recent Malian Family Code, which was adopted in 2011 (‘2011 Family Code’) breaches several international human rights treaties ratified by Mali including: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the African Charter on the Rights and Welfare of the Child (‘ACRWC’) and the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’). A large proportion of the population in Mali are Muslims, and the 2011 Family code was adopted as the result of a compromise between the National Assembly and various Islamic organisations within the country that protested vigorously against a prior attempt by the Malian Parliament to codify the rights of the family in 2009. This earlier code had attempted to provide rights for women and children in family matters that were more aligned with human rights treaty standards. Read the rest of this entry…

 

Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision Read the rest of this entry…

 

New Issue of EJIL (Vol. 29 (2018) No. 2) Published

Published on July 26, 2018        Author: 
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The latest issue of the European Journal of International Law (Vol. 29, No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Devika Hovell’s  The Authority of Universal Jurisdiction. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

 

Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System

Published on July 25, 2018        Author: 
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The international trading system is not just about trade in which the only calculus of its worth and importance can be measured in the growth (or otherwise) of aggregate welfare, economically speaking. Since trade, in goods and services, is the principal modality of transnational intercourse, the international trading system and the legal system which undergirds it, reflects and constitutes the concomitant principal modus operandi of peacetime international relations. It is based on a respect for multilateralism and the rule of (international) law. That modus operandi radiates into other spheres of international cooperation, contributing ultimately to stability and peace. For some, on both right and left, it greases, too, the wheels of ‘globalism’, ‘the reign of capital’ (‘capitalism’ as an expression is somewhat out of fashion) and I have even seen the spectre of ‘international financiers’ being resurrected. But be as it may your view of these assorted alleged vices or virtues, I think there is a broad consensus that one should be careful not to throw the baby – multilateralism and the rule of law – out with whatever dirty bathwater within the system is not to your liking.

However, it is just this that is unfolding in front of our eyes. In trying to redress what he believes are ‘horrible’ terms of trade to which his country, the USA, had given its consent and enshrined in binding international legal instruments, Mr. T. and his crew seem almost more interested in throwing the baby out than cleansing what he considers is the dirty bath water.

Thus, for example, the WTO dispute settlement is slowly being asphyxiated by an American strategy of blocking appointments to the Appellate Body – the de facto World Trade Court. The by now infamous imposition of tariffs on certain steel products and the threats of doing likewise on trade in automobiles (there will be no Mercedes Benzes on 5th Avenue! – not such a bad outcome if it means their replacement by the ever fresh Fiat 500) is illustrative. In both cases the formal justification offered is ‘national security’. This is a black lie if ever there was one. Yes, legal terms, like beauty, are often as elastic as the beholder wishes them to be. And with that reasoning just about any weakening of the trading position of a state may be reducible to a threat to national security. I will not waste my and your time in explaining that this is not what the national security clause is about, though I feel some compassion for the young lawyers in the American government service who were required to write learned disquisitions and briefs trying to justify this legal construct. We all know what it is really about. Read the rest of this entry…

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Authors of EJIL – Customer Care

Published on July 24, 2018        Author: 
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Try as hard as we may, it often takes months to get a publishing decision from EJIL. The bottleneck is, in most cases, the peer review process of which you have read my laments on more than one occasion. Let me say straight away that peer reviewing is a fundamental and immensely valuable part of journal publishing. It not only helps us in our publication decisions but our authors receive constructive comments, which enable them to improve their articles and for which they are, without exception, grateful. We, in turn, are incredibly grateful to our colleagues in the international law community who regularly or irregularly take on the somewhat thankless task of peer reviewing (though perhaps seeing a significantly improved piece in print does provide a measure of thanks).

As important and valuable as peer reviewing is, the process is often as unpredictable as the weather in spring. It might take weeks before we manage to assemble the peer reviewers (we get many refusals; and potential peer reviewers do not always reply instantly to our request) and then, as you know from your own experience, good intentions come up against the realities of academic life one constant of which is always to be late in submitting something promised. Have you not sometimes thought that the flows of our professional life resemble managing a perennial overdraft in the bank?

We have revised our procedure in one small but critical sense which, we hope, will be welcomed by our authors. As I have explained on more than one occasion, the first step in considering a manuscript is a careful read by the ‘in-house’ editorial team, who decide whether or not the submission should be sent to peer review. As I have also explained more than once, there can be many reasons apart from quality that may underlie a decision not to send out to peer review. EJIL is a general interest IL journal and we build our issues with the aim of appealing to a wide readership. Each article we publish means the rejection of another article which could be of similar intrinsic quality. For example, we may not wish to publish in one year five articles on, say, customary law, or proportionality, or investment arbitration, even if each of the five would be of publishable quality. Read the rest of this entry…

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EJIL Vol. 29 (2018) No. 2: In This Issue

Published on July 23, 2018        Author: 
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This issue of EJIL opens with a selection of articles that share a focus on human rights. Itamar Mann analyses the infamous trope of ‘legal black holes’ and deploys it to examine the ignominious failure to end mass drownings of migrants and refugees. In his view, the apparent rightlessness of maritime migrants is fundamentally different from other forms of rightlessness since it is not brought about by a violation of international law but is rather created by and deeply entrenched in it.

Following, Leora Bilsky and Rachel Klagsbrun focus on another form of egregious rightlessness: genocide. While the original conception of this crime was essentially cultural, the Genocide Convention does not reflect this. The authors examine the factors that led to the exclusion of cultural genocide from the Convention and outline its countermeasure – cultural restitution.

David Kosař and Jan Petrov shift the perspective from open wounds and scars of international law to issues of compliance. Using the Czech Republic as an object of analysis, they present valuable insights on factors determining compliance and non-compliance with international human rights rulings as well as variable levels of their implementation.    

Devika Hovell concludes this section by focusing on the fundamental question of universal jurisdiction. She strips away the often obfuscating technical aspects of jurisdiction to reach the very essence of this concept by examining both its sources as well as its legal-political dimensions. Read the rest of this entry…

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New Issue of EJIL (Vol. 29 (2018) No. 2) Out This Week

Published on July 23, 2018        Author: 
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The latest issue of the European Journal of International Law will be published this week. Over the coming days, we will have a series of editorial posts by Joseph Weiler, Editor in Chief of EJIL. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Editorial

Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System; Authors of EJIL – Customer Care; In this Issue

 Articles

Devika Hovell, The Authority of Universal Jurisdiction

Itamar Mann, Maritime Legal Black Holes: Migration and Rightlessness

Leora Bilsky and Rachel Klagsbrun, The Return of Cultural Genocide?

David Kosař and Jan Petrov, Determinants of Compliance Difficulties among ‘Good Compliers’: Implementation of International Human Rights Rulings in the Czech Republic

Symposium: International Law and the First World War

Belligerency and Neutrality

Stephen Neff, Disrupting a Delicate Balance: The Allied Blockade Policy and the Law of Maritime Neutrality during the Great War

Andrew Norris, Uninvited and Unwelcome: The S.S. Appam and the U.S. Law of Neutrality Read the rest of this entry…