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Announcements: UN Audiovisual Library of International Law; Summer School on EU Immigration and Asylum Law and Policy; CfS GoJIL; Advanced Summer Programme on Terrorism, Counter-Terrorism and The Rule of Law; U.S.-German Summer Law School in International and Comparative Law

Published on March 31, 2019        Author: 
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1. New Addition to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs recently added the following lecture to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Alejandro Chehtman on “Extraterritorial criminal jurisdiction” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

2. Summer School on EU Immigration and Asylum Law and Policy. Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe (Institut d’Etudes Européennes- Université libre de Bruxelles) is hosting the 19th edition of the Summer School on EU Immigration and Asylum Law and Policy  in Brussels from 1 – 12 July 2019. This programme is designed to provide participants with a comprehensive understanding of EU immigration and asylum policies from a legal perspective. Participants in the Summer School include academics, EU and Member States officials, PhD and graduate students, representatives of NGOs and international organizations, lawyers, judges. The deadline for registration is 15 May 2019. For more information about the Summer School, please visit our Summer School website, in French or in English. The Odysseus Network has also launched a crowdfunding campaign in order to be able to finance the participation of 10 refugees to the 2019 Summer School.  A doctoral seminar, with four grants available is also organized during the 2019 Summer School. More information is available here.

3. GoJIL: Call for Submissions for Special Issue on “Protection of the Environment in Relation to Armed Conflict – Beyond the ILC. The International Law Commission included the topic “Protection of the Environment in Relation to Armed Conflict” in 2011 on its future program of work. It is now in the stage of finalizing the project by drafting principles that address the phases of pre-conflict, during conflict, and post-conflict in light of different fields of international law, in particular looking into the laws of armed conflict, human rights law and international environmental law. This GoJIL special issue attempts to consolidate the legal protection of the environment during the three phases of armed conflict by the laws of armed conflict, human rights law and international environmental law. Contributions should address one (or several) of the three conflict phases with regard to environmental protection. Deadline for the submission of abstracts is 1 June 2019. All articles must be submitted no later than 1 August 2019. Selected contributions will then be published in Issue 1 of Vol. 10 in 2020. The full GoJIL call for papers can be found hereRead the rest of this entry…

Filed under: Announcements and Events
 

The IOM’s New Status and its Role under the Global Compact for Safe, Orderly and Regular Migration: Pause for Thought

Published on March 29, 2019        Author: 
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On 8 July 2016, the UN General Assembly adopted by consensus the Agreement Concerning the Relationship between the UN and the International Organization for Migration (IOM) (the UN-IOM Agreement). In broad terms, the objective of the UN-IOM Agreement was to ensure better coordination between UN agencies and the IOM as they fulfil their respective mandates. The Agreement created a formal relationship between the two institutions, making the IOM a UN “related organization”.

The formalisation of various interconnections between the UN and the IOM makes intuitive sense. The UN is without a generalised agency for migration, and although the UN High Commissioner for Refugees has widened its mandate somewhat, it remains primarily concerned with refugees.

Since the IOM has become a UN related organization, the UN has transferred escalating levels of responsibility for secretariat processes on the topic of migration to the IOM which would ordinarily be undertaken by the UN Secretariat or a UN specialized agency. The problem is that the organisational structure of the IOM is fundamentally different from the UN, including in terms of mandate, funding, and governance, such that this transfer of responsibility gives rise to a problematic conflict of interest. Moreover, accountability mechanisms have been lost in the ether. This blog post elaborates some of the challenges arising from the new related status of the two organizations and flags concerns about states transferring escalating levels of secretariat responsibility directly to the IOM in the field of migration. Read the rest of this entry…

Filed under: Migration, Refugee Law
 

Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 
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Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

 

Part III- This is not fine: The International Criminal Court in Trouble

Published on March 25, 2019        Author: 
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Editor’s note: This is the final post in a three-part series. Parts I and II are available here and here.

In this final reflection I would like to offer some concluding remarks based on my previous two posts. Those posts do not break any new ground for those who follow the International Criminal Court closely. However, they represent my attempt to step back and examine some of the Court’s troubles more holistically. Indeed, they barely scratch the surface of various matters one could explore in such a series.

The basic fact remains that in 20 years and almost two complete prosecutorial terms, the Court that ostensibly exists to fight impunity and prosecute those most responsible for the crimes of greatest concern to the international community has managed only three convictions for core international crimes. Of these one was a guilty plea (Al Mahdi), one controversially involved the Court’s judges saving a collapsing case by recharacterizing the mode of liability after the presentation of argument and evidence had concluded and without hearing further argument on point (Katanga), and one took six years to result in a single conviction for the recruitment of child soldiers (Lubanga).

This is not a record of success. The argument I have put forward is first that there are real questions as to whether the Court’s job is possible to do on the present conditions. In my first post I argued that many of the defences made of the Court are simply articulations of the structural requirements for success which are not present. In my second post, I argued that even given those structural limitations it is not obvious that the Court as presently constituted is up to the task. The OTP appears unable to consistently mount successful and convincing cases. While the first Prosecutor must certainly take much of the blame, the second does not appear to have had much success righting the ship. Just as worrying, however, appears to be the breakdown in trust between the OTP and Chambers. Beyond the examples given in my second post, the Pre-Trial Chamber has attempted to circumscribe prosecutorial discretion or direct the course of investigations both in relation to the Cormoros and Bangladesh situations. Further, there are very worrying signs of a breakdown in collegiality among the ICC judges which is damaging both the formal coherence of court decisions and its wider legitimacy. This is before we even touch on the Court’s unsightly history of internal employment litigation and pay disputes, and now reports that the ICC mismanaged property in the Bemba case frozen to provide for any reparation orders. The allegation is that over 10 years Mr Bemba’s property was “left to devalue, dissipate or simply rot.” From the outside, the picture is one of dysfunction.

What is to be done? As foreshadowed, I think the answer has to be found in a guiding ethic of modesty and collegiality. I will address this in terms of institutional design, investigations and evidence, and judicial culture. The temptation will be to double down and push harder in the present direction of travel. This would be a mistake. The Court is facing a legitimacy crisis. To survive as an institution, the court is going to need to start making some compromises with reality.

Institutional design

In retrospect, elements of the Court’s design were from the outset overambitious or over-complicated. 

Read the rest of this entry…

 

Announcements: CfP Rectifying the Protection Gap for Climate Refugees; CfP Sorbonne Tax & Public Finance Department; CfS Melbourne Journal of International Law; ILaW Lecture on Proportionality and the Individualisation of War; Program of Advanced Studies on Human Rights and Humanitarian Law; The Next Big Questions for International Criminal Justice; CfP Hungarian Yearbook of International Law and European Law; Academy of European Public Law; CfP Journal of International Criminal Justice

Published on March 24, 2019        Author: 
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1. Call for Presentations: Rectifying the Protection Gap for ‘Climate Refugees’: Where next? Following on from the 2016 UN Declaration for Refugees and Migrants, many States have adopted two UN General Assembly Compacts, one on migrants and the other on refugees. At the same time the UN Framework Convention on Climate Change (UNFCCC) Task Force on Displacement reported its findings to the 24th Conference of the Parties at Katowice. This workshop aims to assess the outcomes of the Global Compacts and the Task Force, to identify their contributions to ongoing attempts to construct better protection mechanisms for those forced to move as a result of the effects of climate change, and to discuss ways of ensuring that these texts are translated into concrete developments in global policy and governance. The workshop will take place on 6 June 2019 at the University of London. Please send an abstract of no more than 500 words to Simon Behrman (simon.behrman {at} rhul.ac(.)uk ) and Avidan Kent (avidan.kent {at} uea.ac(.)uk) by Friday 6 April 2019.

2. Call for Papers: The Sorbonne Tax & Public Finance Department. The Sorbonne Tax & Public Finance Department (IRJS) of the Sorbonne Law School has issued a call for papers on the topic “Financing the European Union after Brexit”. Under the high patronage of Prof. Francesco Martucci (Pantheon-Assas University), the conference aims to offer a place for dialogue for PhD students and holders of a PhD defended after 1 September 2017. Presentations can be given in French or English. The conference will be held on 12 June 2019 at the Pantheon-Sorbonne University, Pantheon center, room 1, from 14:00.  Communication proposals, no longer than 5 pages, should be sent by 12 April 2019.  Decisions regarding the selection will be sent on 19 April 2019. For further information, see here
 
3. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 20(2). The deadline for submissions is 1 July 2019. MJIL is a peer-reviewed academic journal based at the University of Melbourne and publishes scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au. For more information, please see hereRead the rest of this entry…
Filed under: Announcements and Events
 

Part II- This is not fine: The International Criminal Court in Trouble

Published on March 22, 2019        Author: 
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Editor’s note: This is Part II of a three-part series. Part I is available here.

Part I of these reflections focused upon the structural constraints faced by the International Criminal Court as a whole. Within this framework, I wish to focus upon the role of individuals and officeholders in the courts success or failure within those constraints, with a focus on the office of the prosecutor and the judges of the court (Chambers). This post thus sets out to address questions of the Court’s internal workings, practices and culture. In relation to the OTP, I will focus on questions of strategy and management; in respect of chambers, questions of collegiality and assessment of evidence. Space precludes an evaluation of the Registry’s contribution to the court’s present woes beyond my earlier allusion to the well-known, long and expensive series of employment law cases brought against it which followed from a previous registrar’s restructuring exercise. Again, little here will seem especially new to close observers of the Court, the point is to pull together a worrying cluster of issues for a broader audience. Warning: long post ahead.

The Office of the Prosecutor (OTP)

It is worth acknowledging both the enormous power of the role of an international prosecutor, and the very great difficulties in doing the job successfully. As Stahn notes, the Prosecutor is the engine of international criminal tribunal proceedings. He or she conducts investigations, selects defendants, brings cases to trial. In doing so, it is common for prosecutors to say that they are only following the law or evidence, but in practice they have substantial discretion in case and defendant selection. In addition, obtaining defendants and evidence requires, in practice, the cooperation of States. Thus, prosecutors’ work ‘is inherently linked to politics due to the political context of crimes, the politics behind institutional engagement and their large degree of choice.’ That said, international prosecutions are hard. Gathering evidence in conflict zones is hard. Operating in the face of government obstruction is hard. And the reality of selective justice at the international level means prosecutors will always be open to criticisms of partiality or lacking independence. It’s a challenging job. Much was going to depend on the ICC Assembly of State Party’s choice of prosecutor in 2003.

The first Prosecutor

The first Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, was during his tenure an Olympian figure; though the verdict of history on his achievements looks increasingly likely to be that of Ozymandias. 

Read the rest of this entry…

 

Part I- This is not fine: The International Criminal Court in Trouble

Published on March 21, 2019        Author: 
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Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

  • Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
  • Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
  • Lubanga (DRC) – convicted to 14 years;
  • Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture. Read the rest of this entry…

 
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The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences

Published on March 20, 2019        Author: 
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On 8 March, the Chamber of Indictments of the Court of Appeal of Brussels decided to discontinue the prosecution of thirty-nine individuals and two media companies affiliated to the Kurdistan Workers’ Party (PKK). All were being prosecuted for participating in the activities of, or directing, a terrorist group. The Federal Public Prosecutor’s Office had opened the investigation in 2006, and initially also alleged that the Belgian branch of the PKK was responsible for (forcibly) recruiting young Kurds to partake in the conflict with Turkey. However, any specific charges in this respect were dismissed in 2017 due to a lack of evidence.

The judgment forms the (provisional) ending to a procedural saga. On 13 February last year, the Court of Cassation had largely annulled a similar decision by the Chamber of Indictments of 14 September 2017 on the ground of a lack of motivation. That 2017 decision had in turn confirmed a decision of the Correctional Pre-Trial Chamber of the Court of First Instance of Brussels of 3 November 2016. Strikingly, throughout the case, the Turkish state had been a civil party and thus fully joined the prosecution in its argumentation. Not surprisingly, the decisions have caused fierce reactions from Turkey, which has summoned the Belgian ambassador in Ankara to protest the 8 March ruling, calling it ‘unacceptable’ (see here).

This post first explains the IHL exclusion clause, which forms the basis on which Belgian courts have decided to discontinue the prosecution of PKK members. It then briefly addresses how Belgian courts have struggled to apply the clause in other cases, goes over the earlier PKK judgments, and concludes with a short analysis of the decision of 8 March and its implications. Read the rest of this entry…

 

Additions to the EJIL:Talk! Editorial Team

Published on March 19, 2019        Author: 
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We area delighted to announce additions to the EJIL:Talk! team. From this month, we welcome three new Contributing Editors (well, 2 brand new contributing editors and one who is returning to the team):

Freya Baetens is Professor of Public International Law at the University of Oslo and affiliated with the Europa Institute at the Faculty of Law, Leiden University. As a member of the PluriCourts Centre at Oslo, she works on an interdisciplinary research project evaluating the legitimacy of international courts and tribunals.  Freya has acted as counsel or expert in international and European disputes and is listed on the Panel of Arbitrators and Conciliators of the International Centre for the Settlement of Investment Disputes (ICSID), the South China International Economic and Trade Arbitration Commission (Shenzhen Court of International Arbitration) and the Hong Kong International Arbitration Centre (HKIAC). She is a member of the Executive Council of the Society of International Law (SIEL).

Michael Fakhri is an Associate Professor at the University of Oregon School of Law where he teaches in the areas of international economic law, commercial law, and food and agriculture. He is a faculty member of the Environmental and Natural Resource Program where he co-leads the Food Resiliency Project .  His current research focuses on questions of food sovereignty, indigenous sovereignty, and agroecology – all in an effort to work through legal accounts of imperialism, race, and capitalism. Professor Fakhri’s other research interests include Third World Approaches to International Law (TWAIL) and international legal history. 

Douglas Guilfoyle, Associate Professor of International and Security Law at the University of New South Wales, Canberra returns to the blog as a Contributing Editor, having served in a similar capacity from 2012 to 2013. He was previously a Professor of Law at Monash University, Reader in Law at University College London, and has worked as a judicial associate in the Australian Federal Court and the Australian Administrative Appeals Tribunal. He has also practised as a commercial litigation solicitor in Sydney. His principal areas of research are maritime security, the international law of the sea, and international and transnational criminal law. Particular areas of specialism include maritime law-enforcement, the law of naval warfare, international courts and tribunals, and the history of international law. His research work is informed by his consultancy to various government and international organisations

The three new Contributing Editors will join Professors Monica Hakimi, Lorna McGregor and Anthea Roberts who will remain on the editorial team. 

Rotating off the team of Contributing Editors are Professors Anne Peters, Christian Tams and Andreas Zimmermann. We are greatly appreciative of their service to the blog over the past few years. The quality and quantity of their contributions have been of great significance. We hope that they will continue to contribute posts to the blog. Read the rest of this entry…

 

Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

Published on March 18, 2019        Author: 
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If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Read the rest of this entry…